dissenting.
I respectively dissent from the majority opinion. The Indiana Workmen’s Compensation Act, Ind.Code 22-3 — 1—1 et seq., provides that the remedy is exclusive. The Act in Ind.Code 22-3-4-12 states that if the Employer (which includes the Insurer by statutory definition) acts in bad faith in adjusting the claim, the Industrial Board may award attorney fees. Baker’s complaint rests upon common law fraud which requires a detrimental reliance to recover. However, here Baker did not rely upon the misrepresentations of the insurer, and was not injured thereby except for the expenditure of attorney fees. He did not request attorney fees in the compensation proceedings, and, insomuch as that remedy is exclusive, he cannot recover them in a separate suit. Since the attorney fees are the only actual pecuniary damages alleged, when those damages fail, he cannot recover the derivative damages for emotional distress and punitive damages.
For these reasons, I would affirm the ruling of the trial court.