Spears v. Morris & Wallace Elevator Co.
| Decision Date | 03 August 1984 |
| Parties | Charlie M. SPEARS, Plaintiff-Appellant, v. MORRIS & WALLACE ELEVATOR CO., Defendant, and Frank R. Davis and Liberty Mutual Insurance Company, Defendants-Appellees. |
| Court | Tennessee Court of Appeals |
William M. Gotten, Memphis, for plaintiff-appellant.
Joe D. Spicer, Memphis, for defendants-appellees.
This is a case of first impression. The issue presented by this appeal, stated in its most narrow sense, is whether or not the definition of "employer" under the Workers' Compensation Act, which admittedly includes the compensation insurance carrier, shall also include the employees of the insurance carrier. Stated a bit more broadly, the issue for consideration is whether a workers' compensation insurance carrier and its employee can be classified as a "third party" under Tennessee Code Annotated § 50-914, so that a plaintiff who has received benefits from an insurance carrier under the Workers' Compensation Act may maintain a suit against the carrier and its employee in tort. The Circuit Court of Shelby County, in granting the motion for summary judgment on behalf of the carrier and its employee, held that such a suit could not be brought by the injured employee. We agree.
The plaintiff, while an employee of Memphis Furniture Manufacturing Company, suffered a compensable on-the-job injury. The plaintiff's injury occurred while he was assisting a fellow-employee in the operation of an overloaded freight elevator from a position outside the elevator. The plaintiff's neck and upper body were caught between the upper and lower gates of the elevator when it suddenly dropped due to its overloaded condition. The plaintiff underwent surgery to stabilize the vertebra and cervical regions of his spine, and since the accident he has been unable to work.
After receiving his workers' compensation benefits, the plaintiff brought this suit against Morris & Wallace Elevator Company, which was alleged to have a contract with the plaintiff's employer to maintain the freight elevator. The plaintiff alleged certain acts of common law negligence, as well as the violation of many ordinances of the city of Memphis governing the maintenance and operation of elevators. The plaintiff subsequently amended his complaint by naming as a defendant Frank Davis, the individual who had last inspected the freight elevator, and Davis' employer, Liberty Mutual Insurance Company. The amended complaint charged Davis with alleged acts of negligence in connection with the inspection of the elevator. Liability as to Liberty Mutual was asserted under the doctrine of respondeat superior. In the answer filed on behalf of Davis and Liberty Mutual, it was asserted that Davis was a certified deputy elevator inspector licensed by the city of Memphis, and that Davis was both employed and compensated by Liberty Mutual to perform periodic inspections of various businesses which Liberty Mutual insured.
Subsequent to filing their answer, Davis and Liberty Mutual filed a motion for summary judgment with supporting affidavits. They relied upon the inclusion of the workers' compensation insurance carrier under the definition of "employer" in T.C.A. § 50-902 as authority for the proposition that suit could not be maintained as to Liberty Mutual, and that Davis was a "co-employee" of plaintiff under the act. After hearing arguments on the defendants' motion, the trial court granted summary judgment. In the trial court's order there was no explanation as to the rationale by which the court held that the action could not be maintained.
Without question, this litigation was triggered by a compensable on-the-job injury. Accordingly, we must begin by examining the code sections that determine the rights of the parties under the Workers' Compensation Law that was in effect at the date of the accident or injury. See Liberty Mutual Insurance Co. v. Starnes, 563 S.W.2d 178 (Tenn.1978).
Unquestionably, the rights of an employee subject to the Workers' Compensation Act, on account of personal injury or death by accident, are exclusively as set forth in the act, as stated in T.C.A. § 50-908 (now § 50-6-108).
More specifically, we are here concerned with the application of two sections of the Workers' Compensation Law as it existed at the time of the plaintiff's injury. The first is a portion of T.C.A. § 50-902, which reads as follows:
50-902. Definitions.--In chapters 9 through 12 of this title, unless the context otherwise requires:
(a) "Employer" shall include any individual, firm, association or corporation, or the receiver, or trustee or the same, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay, and in the case of an employer engaged in the mining and production of coal, one (1) employee for pay. If the employer is insured, it shall include his insurer, unless otherwise herein provided. (Emphasis supplied).
The second section with which we are concerned is T.C.A. § 50-914. The relevant portion of this section reads as follows:
50-914. Liability of third persons .... When the injury or death for which compensation is payable under the Workmen's Compensation Law was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman, or his dependents, shall have the right to take compensation under such law, and such injured workman, or those to whom his right of action survives at law, may pursue his or their remedy by proper action in a court of competent jurisdiction against such other person. (Emphasis supplied).
To capsulate the material facts, the plaintiff's injuries occurred under circumstances that created a legal liability in his favor against his employer. Liberty Mutual, the workers' comp carrier for the plaintiff's employer, compensated the plaintiff pursuant to a court-ordered settlement. At the time he inspected the elevator, Davis did so as an employee of Liberty Mutual. Finally,...
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