dissenting on motion for rehearing.
I now respectfully dissent from the position taken by this Court in response to Appellees’ Motion for Rehearing on the question of whether an independent claims adjusting company owes a duty of good faith and fair dealing to an injured employee. While I agree with the reasoning of the majority with respect to the lack of any real contractual relationship between the compensation carrier and the employee, our Supreme Court has long held to the fiction, and continues to so hold, that there is a three-party agreement or contract between the employer, the employee and the carrier. Aranda v. Insurance Co. of North America, 748 S.W.2d 210 (Tex.1988); Southern Casualty Co. v. Morgan, 12 S.W.2d 200 (Tex.Comm’n App.1929, judgm’t adopted). The Supreme Court has found a contractual relationship between the employee and the carrier based on the fiction that there was a promise for a promise, i.e., that the carrier promised to compensate the employee for injuries sustained in the course of employment and the employee agreed to forego his common law rights against his employer. While the employee under both the previous compensation act, Tex.Rev. Civ.Stat.Ann. art. 8306, § 3a (Vernon 1967), and the present act, Tex.Rev.Civ.Stat.Ann. art. 8308-3.08 (Vernon Pamph.1992) was and is held to have waived his right to pursue his common law cause of action for injuries received in the course of employment unless he gives his employer notice in writing at the time of employment that he wishes to retain that right, in the real world, he has no such choice in the matter. Nevertheless, the Supreme Court has tied the good faith and fair dealing duty to the special relationship that arises as a result of the “contract between a compensation carrier and an employee.” Aranda, 748 S.W.2d at 212.
Alexsis had a contractual relationship with the carrier, National Union Fire Insurance Company, to investigate and adjust compensation claims made by Reveo employees. Presumably, Alexsis was an independent contractor. National Union had the duty to exercise good faith and fair dealing in handling those claims. Although the question is not before us, Natividad’s claim against National Union for breach of the good faith duty having been settled and dismissed, it is within the realm of legal possibility that the duty is one the liability for breach of which the carrier cannot contract away. However, unless we indulge in the further fiction that the employee is a party to the contract between the carrier and Alexsis, Natividad’s bad faith claim against Alexsis cannot be grounded on the same rationale as her similar claim against National Union.
Furthermore, the attempt by the majority to ground Natividad’s bad faith claim against Alexsis on the theory that she was a third-party beneficiary of the contract between Alexsis and National Union is unsupported by the pleadings, the evidence and the law. As pointed out by Appellees, Natividad did not plead that she was a third-party beneficiary of that contract nor is that contract in the record, the absence of which prevents us from ascertaining the intention of the parties. In Corpus Christi Bank and Trust v. Smith, 525 S.W.2d 501, 503 (Tex.1975), Justice Pope said that “[t]he intention of the contracting parties is of controlling significance to a determination that a third party may enforce the contract provision. [Citation omitted]. In deriving intent, we must begin with the presumption that parties contract for themselves, and a contract will not be construed as having been made for the benefit of third parties unless it clearly appears that such was the intention of the contracting parties. [Citations omitted].” In our case, we have no evidence from which we can possibly derive the necessary intent to benefit Natividad.
For these reasons and under the facts and record before us, this Court should withdraw its previously issued opinion and in a substituted opinion, affirm the trial court’s summary judgment as to the breach of the good faith duty cause of action against both Appellees.