Travelers Indemnity Co. v. Reker

STUMBO, Justice,

dissenting.

The Court of Appeals below held that, by virtue of KRS 446.070, an individual injured by a violation of KRS 342.267 may pursue a civil action in circuit court for damages. Since I find no error in the judgment rendered by the Court of Appeals, I disagree with the opinion of the majority.

KRS 342.267 is a provision of the Workers’ Compensation Act that sets forth pen*767alties for unfair claims settlement practices. It provides:

If an insurance carrier, self-insurance group, or self-insured employer providing workers’ compensation coverage engages in claims settlement practices in violation of this chapter, or the provisions of KRS 304.12-230, the commissioner of the Department of Workers’ Claims shall fine the insurance company, self-insurance group, or self-insured employer the sum of one thousand dollars ($ 1,000) to five thousand dollars ($ 5,000) for each violation and if they have a pattern of violations, the commissioner may revoke the certificate of self-insurance or request the commissioner of insurance to revoke the certificate of authority of the insurance carrier.

The Unfair Claims Settlement Practices Act (“UCSPA”), KRS 304.12-230, a provision of the Insurance Code, is specifically referenced by KRS 342.267. Subsection six of the UCSPA provides that it is an unfair claims settlement practice for one to not attempt “in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear.”

KRS 446.070 provides that a penalty assessed for violation of a statute is no bar to recovery in a civil action. It states that “[a] person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation, although a penalty or forfeiture is imposed for such violation.”

KRS 446.070 has been a part of Kentucky’s statutory law for over a hundred years. It can reasonably be inferred that the General Assembly was aware of this provision when it enacted KRS 342.267. It necessarily follows that the General Assembly must have been aware KRS 446.070 would be applicable to KRS 342.267, since it incorporates the UCSPA. As noted, KRS 342.267 reveals that it provides a penalty. The Commissioner of the Department of Workers’ Claims can impose a fine upon any workers’ compensation insurance carrier that engages in claims settlement practices in violation of the UCSPA. This statute alone provides an individual with a mechanism to penalize a workers’ compensation carrier for not acting in good faith in claims settlement, but no remedy is specifically provided.

The majority takes the position that the General Assembly did not intend to allow a civil remedy because proposed amendments to KRS 342.267, which would have specifically provided such a remedy, were defeated. I do not find this to be a declaration of the General Assembly’s intent. ‘Where the words used in a statute are clear and unambiguous and express the legislative intent, there is no room for construction and the statute must be accepted as it is written.” Griffin v. City of Bowling Green, Ky., 458 S.W.2d 456, 457 (1970). I find that the language in KRS 342.267 is clear and unambiguous when incorporating the UCSPA. The UCSPA does not provide for a civil remedy; therefore, KRS 446.070 is applicable to the UCSPA and to KRS 342.267. While claims under the Workers’ Compensation Act are generally exclusive to the provisions therein, I would conclude that KRS 342.267 is an exception to that general proposition because of the inclusion of the UCSPA. Thus, I would hold that a party is entitled, under KRS 342.267, to maintain a civil action in circuit court for damages by and through KRS 446.070.

It is argued by the appellant, Travelers, that the Workers’ Compensation Act under KRS 342.690 makes all remedies arising out of work-related injuries exclusive to the remedies and procedures proscribed thereunder. I agree that any claims related to an injury that occurred within the *768scope of employment are “exclusive” to the Workers’ Compensation Act. However, the issue in this case is not whether an injured worker is entitled to compensation for a work-related injury. Rather, the issue concerns a workers’ compensation insurance carrier’s lack of good faith dealing in settlement negotiations.

Travelers cites to a number of prior decisions from both this Court and the Court of Appeals, which purportedly hold that injured workers, who elect to be covered by workers’ compensation, are limited to only those remedies provided in the Workers’ Compensation Act, and as a consequence, are not entitled to maintain a civil action in circuit court.

Travelers relies on Zurich Insurance Co. v. Mitchell, Ky., 712 S.W.2d 340 (1986), where an injured employee alleged two separate causes in tort, outrageous conduct causing emotional distress and bad faith refusal to pay benefits. Id. at 341. This Court held that KRS 342.090 of the Workers’ Compensation Act provided an exclusive remedy and consequently barred an injured employee’s action in tort for separate damages due to the untimely payment of workers’ compensation benefits. Id. Travelers asserts that Mitchell effectively bars any tort action brought by an employee regarding a work-related injury and is directly on point with the present case. While Mitchell is on point, KRS 342.267 was enacted after the decision in that case was rendered. As the Court of Appeals noted in General Accident Insurance Co. v. Blank, Ky.App., 873 S.W.2d 580, 582 (1993), the General Assembly would need to act in order for the UCSPA to apply in workers’ compensation actions. I believe that the General Assembly did so act when KRS 342.267 was enacted. Accordingly, I would overrule both Mitchell and Blank to the extent that they conflict with the views herein.

Travelers also cites to Simmons v. Clark Construction Co., Ky., 426 S.W.2d 930 (1968), for the proposition that KRS 446.070 does not apply to the Workers’ Compensation Act. However, the Simmons opinion predates the enactment of KRS 342.267. Simmons cannot properly be compared to the instant case, and thus, I do not find it dispositive of any issue of concern at present.

Finally, I fail to see how the public policy underlying the existence of the workers’ compensation system would be jeopardized if the Court of Appeals’ judgment was affirmed. The instant matter concerns only KRS 342.267, not the entire Workers’ Compensation Act. Contrary to the opinion of the majority, upholding the decision of the Court of Appeals would not “emasculate” the long-standing legislative public policy embodied within this state’s system of workers’ compensation. The enactment of KRS 342.267 simply recognized the need for workers’ compensation carriers to act promptly, and in good faith, where the claim of an injured worker, perhaps the sole support of a family, was concerned.

For the foregoing reasons, I would affirm the judgment of the Court of Appeals.

GRAVES and WINTERSHEIMER, JJ., join this dissent.