Plough, Inc. v. Premier Pneumatics, Inc.
| Decision Date | 30 June 1983 |
| Citation | 660 S.W.2d 495 |
| Parties | PLOUGH, INC. and Liberty Mutual Insurance Company, Plaintiffs-Appellants, v. PREMIER PNEUMATICS, INC., Leco Incorporated and Rick Brenner Company, Corporations, Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
Jack A. Childers, Jr., Memphis, for plaintiffs-appellants.
John R. Cannon, Jr., Memphis, for defendant-appellee Rick Brenner Co.
Joe D. Spicer, Memphis, for defendant-appellee Premier Pneumatics.
In this case we are asked to construe Tenn.Code Ann. Sec. 50-914 (1977) 1 which provides for actions against third persons who may be liable for injury to an employee who receives workers' compensation. The statute provides in pertinent part:
When the injury or death for which compensation is payable under Workers' Compensation Law was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman ... shall have the right to take compensation under such law, and such injured workman ... may pursue his ... remedy by proper action in a court of competent jurisdiction against such other person...
In the event of such recovery against such third person by the workman ... by judgment, settlement, or otherwise, and the employer's maximum liability for workman's compensation under chapters 9 through 12 of this title has been fully or partially paid and discharged, the employer shall have a subrogation lien therefore against such recovery and the employer may intervene in any action to protect and enforce such lien ...
Such action against such other person by the injured workman ... must be instituted in all cases within one (1) year from the date of injury. Failure on the part of the injured workman ... to bring such action within said one (1) year shall operate as an assignment to the employer of any cause of action in tort which the workman ... may have against any other person for such injury or death, and such employer may enforce same in his own name or in the name of the workman ... as such employer's interest may appear, and the employer shall have six (6) months after such assignment within which to commence such suit.
Tenn.Code Ann. Sec. 50-914 (1977).
The issue presented is whether an employer, after the expiration of one year from the date of injury and within the additional six-month period, may sue one or more alleged tortfeasors not sued by the injured employee within one year of the injury when the employee has filed an action against some but not all potentially liable third parties. The trial court held that the employer could not maintain such a suit and dismissed the case. For the reasons hereinafter set out, we disagree with the ruling of the trial court.
Employee injured his hand on December 11, 1980, under circumstances entitling him to benefits under the Workers' Compensation Act which were paid and are being paid by Liberty Mutual Insurance Company for the employer, Plough, Inc. The insurance carrier stands in the same position as the employer and we will hereafter refer to plaintiffs as "Employer." On December 10, 1981, the employee filed suit seeking damages against certain third parties in Circuit Court. On March 24, 1982, the suit under consideration was filed by Employer against three defendants that the employee had chosen not to sue, seeking recovery for the monies that it had paid under the Workers' Compensation Act alleging that the defendants were negligent and that they were also liable under the doctrine of strict liability in tort.
The action against third persons contemplated by and provided for by Tenn.Code Ann. Sec. 50-914 (1977) is in tort and includes all types of relations creating the duty of the tortfeasor such as automobile and general negligence cases, products liability cases, medical malpractice cases, and federal tort claims act cases.
Under the common law, joint tortfeasors are both jointly and severally liable, and they may be sued in one action or they may be sued in separate actions. See Moore v. Chattanooga Electric Ry. Co., 119 Tenn. 710, 109 S.W. 497 (1908).
For background on the statute under consideration, we quote from Millican v. Home Stores, Inc., 197 Tenn. 93, 270 S.W.2d 372 (1954):
As originally enacted, the Workers' Compensation Law provided that when the injuries were received under circumstances creating a liability upon the part of third parties for injuries to the employee he, the employee, was authorized to proceed against both the employer and such third party "but he shall not be entitled to collect from both." Section 6865 of the 1932 Code. As a result of that provision it was held in Walters v. Eagle Indemnity Co., 166 Tenn. 383, 389, 61 S.W.2d 666, 88 A.L.R. 654, that receipt of compensation by an injured employee from a third party in consideration of a covenant upon the part of the employee not to sue the third party extinguishes the right of such employee to compensation from his employer.
The law so continued until in 1949, by Chapter 277 of the Public Acts, our Legislature re-enacted Code Section 6865 ... [In essence this is the same statute with which we are dealing except for later changes which do not effect the parts pertinent to this opinion.]
Id., at 96, 270 S.W.2d at 373.
Prior to 1949 amendment, the injured employee was precluded from seeking recovery against an alleged wrongdoer in order to attempt to recover fully the damages suffered if the employee had accepted from the employer the workers' compensation benefits provided by the statute. As pointed out by Justice Tomlinson in Millican:
The 1949 amendment was undoubtedly enacted for the purpose of changing this situation by (1) allowing the injured parties to receive from the employer the amount awarded by the statute and (2) at the same time assert his claim against the third party as an alleged wrongdoer for the full measure of damages suffered with (3) the employer having a lien upon the recovery or settlement to the extent of the amount paid by such employer to the employee, or his dependents, under the provisions of the Workmen's Compensation Law; and (4) if the employee or his dependents had not asserted claim against the third party within one year, then, by way...
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