dissenting.
In Stump v. Commercial Union, 601 N.E.2d 327, 333 (Ind.1992), we held that the Indiana Worker's Compensation Act does not authorize injured employees to seek separate recourse in the courts for claims against their employers' worker's compensation insurance carriers based on either (a) breach of duty to act in good faith and to engage in fair dealings with the employee, or (b) breach of fiduciary obligation owed the employee. However, we recognized that an injured employee could maintain a common law claim against the carrier for "tortious conduct such as to constitute gross negligence, intentional infliction of emotional distress, or constructive fraud." Id.
In 1997, the Indiana General Assembly enacted a statute declaring that the Worker's Compensation Board has "exclusive jurisdiction to determine whether the employer, the employer's worker's compensation administrator, or the worker's compensation insurance carrier has acted with a lack of diligence, in bad faith, or has committed an independent tort in adjusting or settling the claim for compensation" and providing for maximum recovery of $20,000. Ind.Code § 22-3-4-12.1(a), (b).
This statute does not abolish the civil cause of action recognized under Stump, but rather compels exclusive recourse to an administrative tribunal, depriving an injured claimant from seeking redress through courts of law, and denying the *355right to a jury trial. I remain convinced that the statute thereby violates Article I, Section 12 ("All courts shall be open; and every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered ... completely, and without denial; ...") and Section 20 ("In all civil cases, the right of trial by jury shall remain inviolate.") of the Indiana Constitution. Our Constitution prohibits the legislature from eviscerating a recognized common law cause of action by proclaiming it ineligible for jury trial.
For these reasons, I would reverse the trial court's order granting the motion to dismiss. ~