Swain v. AIG Claims, Inc.

Decision Date18 October 2019
Docket Number2180336
Citation295 So.3d 1072
Parties Orethaniel SWAIN v. AIG CLAIMS, INC., The Insurance Company of the State of Pennsylvania, Sandra Thomas, Coventry Health Care Workers' Compensation, Inc., and Jackie Angeles
CourtAlabama Court of Civil Appeals

H.E. "Chip" Nix, Montgomery, for appellant.

Michael H. Gregory of Dodson Gregory, LLP, Birmingham, for appellees AIG Claims, Inc., The Insurance Company of the State of Pennsylvania, and Sandra Thomas.

Roy H. Liddell and Kevin A. Rogers of Wells Marble & Hurst, PLLC, Jackson, Mississippi, for appellees Coventry Health Care Workers' Compensation, Inc., and Jackie Angeles.

HANSON, Judge.

Orethaniel Swain appeals from a judgment of the Jefferson Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala. R. Civ. P., his claims alleging intentional infliction of emotional distress, fraud, and conspiracy on the part of defendants AIG Claims, Inc. ("AIG"), The Insurance Company of the State of Pennsylvania ("ICSP"), Sandra Thomas, Coventry Health Care Workers' Compensation, Inc. ("Coventry"), and Jackie Angeles ("the defendants"). For the following reasons, we reverse the judgment of dismissal and remand the case for further proceedings.

Facts and Procedural History

On December 11, 2017, Swain was injured while working within the line and scope of his employment with Imerys USA, Inc. ("Imerys"). Swain claims to have suffered both physical and mental injuries, including post-traumatic stress disorder

("PTSD"), as a result of a workplace accident that, he says, was compensable under the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq. ("the Act"). On June 14, 2018, Swain commenced this action against AIG, Thomas, Coventry, and Angeles. Swain later amended his complaint to add ICSP as a defendant and to assert a claim for workers' compensation benefits against ICSP; as finally amended, the complaint asserted claims of intentional infliction of emotion distress, fraud, and conspiracy against all defendants. According to the complaint, ICSP provided workers' compensation coverage to Imerys; AIG was the workers' compensation claims administrator for ICSP; Thomas was the insurance adjuster employed by AIG assigned to Swain's claim; Coventry was a claims-management company retained by AIG; and Angeles, an employee of Coventry, was assigned as the "nurse case manager" for Swain's claim.

Swain's allegations, as ultimately and finally set forth in his third amended complaint, may be summarized as follows: On December 11, 2017, Swain was injured at work when a large electrical circuit breaker exploded. Swain's injuries from the accident included physical injuries to his head

, lungs, neck, back, and pelvic region. Swain also asserts that the accident caused him to suffer PTSD and anxiety. Swain was initially required to seek treatment through his personal doctors under his health-insurance coverage. On January 23, 2018, however, Angeles met with Swain regarding his workers' compensation claim. Angeles informed Swain that she would be serving as his nurse, would handle making all of his necessary doctor appointments, and would generally make sure he received the care he needed to treat his work-related injuries. According to the complaint, Angeles informed Swain that she was working on his behalf and not the insurance company's or his employer's behalf.

The defendants sent Swain for treatment to Dr. Bruce Romeo. Dr. Romeo provided some treatment for Swain's respiratory problems and referred Swain to an eye doctor. Dr. Romeo, however, did not provide any treatment for Swain's other problems. Rather, Dr. Romeo ordered Swain back to work with restrictions. Swain contends that he was unable to do anything at work other than sit in a chair throughout the workday and that his working conditions exacerbated his mental-health issues. Swain became concerned that he was not receiving the treatment he needed, and on February 15, 2018, Swain retained legal counsel to assist him with his workers' compensation claim. Swain's counsel began sending letters and e-mails to the defendants with increasing urgency regarding Swain's mental and emotional state and requesting that Swain be seen by a neurologist or a neuropsychologist. The defendants were informed that Swain was suffering from obvious symptoms of PTSD, was under extreme distress, and was in need of treatment.

On March 24, 2018, Swain was referred by the defendants to a neurologist. On April 24, 2018, the neurologist examined Swain and determined that he required treatment by a psychiatrist or a neuropsychiatrist. Swain's counsel made numerous attempts to secure approval from the defendants for the referral made by the neurologist by means of telephone and electronic correspondence, but his calls and e-mails were met with no response from the defendants. Swain's counsel informed the defendants in telephone messages and e-mails that Swain was suffering and urgently needed psychiatric or neuropsychiatric care.

On May 21, 2018, Swain was again seen by Dr. Romeo. Despite being informed by Swain of his continuing symptoms and the neurologist's determination that Swain required psychiatric or neuropsychiatric treatment, Dr. Romeo placed Swain at maximum medical improvement ("MMI") and sent him back to work without restrictions. That same day, and allegedly as a result of the defendants' and Dr. Romeo's actions, Swain suffered a mental breakdown. He was treated at the emergency department of Brookwood Medical Center in Birmingham and was admitted to the behavioral-health-care unit of the hospital, where he was treated with a full regimen of psychiatric services for nine days. Swain alleges that he is now required to see a psychiatric specialist on an outpatient basis and that medical professionals have directed him not to return to work.

Swain alleges that his mental breakdown and his ongoing need to receive specialized psychiatric treatment is the result of the defendants' handling of his workers' compensation claim. Swain contends that the defendants, by their conduct, are guilty of the intentional infliction of emotional distress or, as it is commonly referred to in our caselaw, the tort of outrage. See generally American Rd. Serv. Co. v. Inmon, 394 So. 2d 361 (Ala. 1980) (recognizing existence of tort recovery for intentional infliction of emotional distress). With regard to that claim, he has alleged, among other things, that the defendants never intended to provide him with adequate treatment and that the defendants conspired with Dr. Romeo to have him erroneously placed at MMI and to have him over medicated so as to mask certain untreated conditions. Furthermore, Swain alleged:

"The [d]efendants utterly refused to send ... Swain to a specialist in psychiatry and denied him reasonable and necessary treatment so [his] psychiatric and physical injuries would become worse and cause him to become so sick and frustrated that he would agree to resolve his workers' compensation claim for less than the benefits to which he is entitled. [He] ... was caused by the [d]efendants' misconduct to suffer a mental breakdown and a new and more severe condition."

As to his fraud claim, Swain alleges that Angeles affirmatively misrepresented (a) that she would be his nurse and working on his behalf; (b) that she would get him set up for treatment for all of his injuries and get him "sent to all the right doctors"; and (c) that she would talk to the doctors and "insurance company" (presumably AIG or ICSP) for the purpose of making sure he received care and that his care would proceed smoothly. Swain also alleges that the defendants suppressed the facts (a) that Angeles and Coventry were not working for his interests, but for the interests of AIG, ICSP, Thomas, and Imerys; (b) that Dr. Romeo was serving the interests of the defendants and not Swain; (c) that the goal of ICSP was to save money on Swain's claim irrespective of the extent of any treatment needed by Swain; (d) that the defendants did not intend to authorize treatment for psychiatric care; and (e) that the defendants intended to ensure Swain's return to full-duty work at the May 21, 2018, appointment with Dr. Romeo. Swain contends that, had he known that the defendants were going to persist in refusing to send him to a psychiatric specialist, "he would have found his own psychiatric specialist much sooner and he would have been properly treated, thereby preventing the new and more severe condition." Swain further alleges that the defendants conspired together, along with Dr. Romeo, to deny him the proper medical care needed to treat his injuries, particularly with regard to the PTSD and other mental injuries.

After Swain had filed his complaint, which additionally sought an award of benefits from ICSP under the Act, each defendant moved, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Swain's tort claims. The defendants argued that Swain's claims were governed by the Act and that, pursuant to § 25-5-77(a), Ala. Code 1975, Swain could seek judicial vindication of his allegations that he had not been provided necessary medical treatment only after having sought a second opinion from an authorized physician selected from a panel of four physicians. The defendants also argued that, even accepting the facts in Swain's complaint as true, he could not satisfy the elements of fraud, the tort of outrage, or conspiracy.

On November 5, 2018, the trial court granted the motions to dismiss Swain's tort claims against all the defendants. On November 9, 2018, the trial court directed the entry of a final judgment of dismissal pursuant to Rule 54(b), Ala. R. Civ. P., in favor of Coventry and Angeles. On November 12, 2018, Swain moved to voluntarily dismiss his sole remaining claim -- the claim for workers' compensation benefits against ICSP. That motion was granted on November 12, 2018. Swain timely filed his notice of appeal on December 12, 2018, and Swain's appeal was transferred to this court pursuant to...

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