Malkiewicz v. R.R. Donnelley & Sons Co.

FONES, Justice,

dissenting.

It seems to me that the majority opinion makes an addition to the Workers’ Compensation Act that encroaches upon the domain of the legislature.

A guarantor of a self-insured employer’s liability under the Act is not an insurer, qualified as such and regulated as such under the laws of this State. Workers’ Compensation insurers enjoy immunity from tort liability because the legislature included “insurer” in the definition of “employer.” Guarantors are not included in that definition.

It may well be that any guarantor who assists an employer to gain self-insured status under the Act, regardless of relationship to the entity of the employer, should be accorded that status of immunity from tort liability. However, it is a grant of a substantial legal privilege, and the decision to grant or withhold belongs, in my opinion, to the legislature.

This Court has consistently resisted the invitation of litigants to read something into the Workers’ Compensation statutes that was not within the language of the Act.

In Tennessee Copper Co. v. Shelton, 163 Tenn. 202, 204, 42 S.W.2d 346 (1931), Mr. Justice Chambliss said:

However plausible may be the reasons suggested for such a rule, the language of the amendatory act is so unambiguous as to leave no room for construction. The language being plain the Courts may only enforce it as written.

In Bituminous Casualty Corp. v. Smith, 200 Tenn. 13, 20, 288 S.W.2d 913, 916 (1956), Mr. Justice Tomlinson responded to a charge of inequity in certain provisions of the Act as follows:

At any rate, such questions are matters which, under our system of government, must be answered by the legislature. The Courts must take the statute as that body has enacted it.

In Lindsey v. Hunt, 215 Tenn. 406, 422, 387 S.W.2d 344, 345 (1965), Chief Justice Burnett said:

Basically, the compensation laws are creatures of the Legislature, and any changes in their already valid structure should come from the Legislature and not the courts.

Cordell v. Sky Rides of America, Inc., 218 Tenn. 485, 404 S.W.2d 488 (1966); Chapman v. Clement Brothers, Inc., 222 Tenn. 223, 435 S.W.2d 117 (1968); Hughes v. Globe Co., 224 Tenn. 208, 452 S.W.2d 859 (1970); Aerosol Corp. of the South v. Johnson, 222 Tenn. 339, 435 S.W.2d 832 (1968); and Willoughby v. Warstler & Egly Bakery, Inc., 201 Tenn. 277, 298 S.W.2d 727 (1957) express the same principle.

It also seems to me that the arguments advanced by the parties, for and against immunity, are best evaluated by the legislature. The act of extending tort immunity to a class or group or category of entities in a particular business relationship is, in *732my opinion, a pure question of public policy. “All questions of public policy are for the determination of the legislature and not for the courts.” Cavender v. Hewitt, 145 Tenn. 471, 475-476, 239 S.W. 767 (1922). The bottom line issue in this case is whether there is any distinction, “principled” or otherwise, between “insurers” and “guarantors” of any stripe, for the purpose of the award of immunity from tort. Whether the answer is yes or no, it is the province of the legislature to make that decision.