Deanda v. AIU Insurance

WINCHESTER, J.

T1 The United States District Court for the Northern District of Oklahoma certified the following question pursuant to the Uniform Certification of Questions of Law Act, 20 0.8.2001, § 1601 et seq.: "Does Oklahoma recognize the tort of bad faith against a workers' compensation insurance carrier for post-award conduct?" We answer, consistent with our recent holding in Kuykendall v. Gulfstream Aerospace Technologies, 2002 OK 96, 66 P.3d 374, Oklahoma does not recognize such a tort. Title 85 O.S.2001, § 42 provides the sole remedy when an insurance company fails to pay the compensation awarded by the Workers' Compensation Court.

I. FACTS

T2 The plaintiff, Keir DeAnda, was an employee of Terra Telecom. The defendant, AIU Insurance Company, issued a policy for workers' compensation insurance to Terra Telecom, which was in effect at the time of DeAnda's injury. The defendant, AIG Claim Services, Inc., is the third party administrator for AIU, responsible for the payment of allowed benefits, and authorization and payment of reasonable and necessary medical care related to DeAnda's workers' compensation claim.

[3 The Workers' Compensation Court entered orders providing for reasonable and necessary medical expenses, and ordered reimbursement of expenses, prepayment of expenses and interest. DeAnda alleges that authorization for reasonable and necessary medical expenses, payments of reimbursements, prepayment of expenses and payment of interest were unreasonably delayed. The defendants deny that any award was entered determining what treatment was reasonable and necessary, or that their denial of medical treatment or delay in reimbursement was unreasonable. They further deny that the orders at issue rise to the level of an award.

I 4 These facts give a context to the certified question, and establish that the answer to the question may be determinative of an issue in pending litigation in the certifying court. 20 O.S.2001, § 1602. There is no controlling decision of this Court that answers this certified question.

. IIL EXCLUSIVITY OF WORKERS COMPENSATION ACT

T5 The Workers' Compensation Act "provides a complete, comprehensive, and ex*1082clusive method for administration of its provisions and for the enforcement of any and all awards made thereunder." May v. Covington, 1939 OK 429, ¶ 0, 95 P.2d 233. In the May case, the claimant's award was not paid. A general execution issued and was returned unsatisfied. The claimant then tried to collect against the stockholders of his employer, based on a statute in title 18, now repealed. The Court held that the Workers' Compensation Act, at that time the "Workmen's Compensation Law," was not complementary to any prior existing legislation, but an independent and separate legislative expression that established rights and liabilities and created methods for their determination and for the enforcement of any awards. May, 1939 OK 429, ¶ 6, 95 P.2d at 234. The Workers' Compensation Act is exclusive as to both awards and remedies. That Act provides in pertinent part:

"The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer ... at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person."

85 O.S.2001, § 12.

T6 The plaintiff, Keir DeAnda, maintains that this provision relates only to the liability of the employer, not to that of the insurance carrier. This question was answered in United States Fidelity and Guaranty Co. v. Theus, 1972 OK 9, ¶¶ 7, 12, 493 P.2d 433, 434, 435. In that case the Court observed that although the Workers Compensation Act does not specifically exclude the insurance carrier from suit in district court for its own negligence, nevertheless, "the carrier is immune from suit in a common law action." After examining provisions in the Workers' Compensation Act, the Court held that the intent of the law was "to make the insurance carrier one and the same as the employer as to liability and immunity." Theus, 1972 OK 9, ¶ 12, 493 P.2d at 435, Fehring v. State Ins. Fund, 2001 OK 11, ¶ 28, 19 P.3d 276, 285.

17 In Kuykendall we held that a common law remedy was not available against an employer for a post-judgment failure to pay an award ordered by the Workers' Compensation Court. Kuykendall, 2002 OK 96, ¶ 13, 66 P.3d at 378. DeAnda attempts to distinguish Kuykendall from the facts before us because one involves a self-insured employer and the other an insurance carrier for an employer. But the teaching of Theus is that they are treated the same; if a self-insured employer cannot be sued for a bad faith failure to pay, neither can an employer's insurance carrier.

III. INTENTIONAL INJURY

18 Title 85 O.S.2001, § 11 provides compensation for "accidental personal injury." DeAnda argues that intentional acts of the insurance carrier are not covered by the Workers' Compensation Act. He continues that because bad faith is an intentional act, recovery for damages does not fall within the exclusive jurisdiction of the Workers' Compensation Court.

T 9 In Whitson v. Oklahoma Farmers Union Mut. Ins. Co., 1995 OK 4, 889 P.2d 285, the issue was whether a successful workers' compensation claimant could later assert a tort claim against his employer for the manner in which the employer defended the claim. The Court held that he could not. Whitson, 1995 OK 4, ¶ 1, 889 P.2d at 286. The facts reveal that Whitson's supervisor claimed that he never received notice of Whitson's injury within the statutory time. The supervisor allegedly instructed other employees to deny notice of the claim. However, despite the supervisor's actions, an employee did confirm Whitson's accident to the investigator for the workers' compensation carrier early in his investigation. The court awarded compensation. Whitson, 1995 OK 4, ¶ 2, 889 P.2d at 286.

T 10 Whitson sued for fraud and bad faith. The trial court granted summary judgment to the defendants. On appeal, this Court held that an employer's liability to an injured worker is limited to that created by § 12 of the Workers' Compensation Act. Whitson, 1995 OK 4, ¶ 8, 889 P.2d at 287.1 The act of *1083the supervisor was alleged to be intentional, yet because it occurred during the adjudication of an employee's claim, the Court found the intentional act could not be grounds for a separate lawsuit.

T11 Without citing Theus, Anderson v. United States Fidelity and Guaranty Co., 1997 OK 124, 948 P.2d 1216, nevertheless followed its teaching in placing the insurer in the same position as the employer for conduct that predates a workers' compensation award. Anderson held that Oklahoma does not recognize a bad faith claim for pre-award conduct against a workers' compensation insurance carrier. Anderson, 1997 OK 124, ¶ 11, 948 P.2d at 1218, citing "Whitson 889 P.2d at 285." The insurance carrier in that case contested Anderson's workers' compensation claim and filed an objection to his medical report. About six months later, the insurer authorized medical treatment. Anderson, 1997 OK 124, ¶ 3, 948 P.2d at 1216-1217.

112 Anderson filed suit in the district court of the State of Oklahoma for bad faith and intentional infliction of emotional distress. The case was removed to the United States District Court for the Northern District of Oklahoma, which certified this question:

"Does Oklahoma law recognize the tort of bad faith for unjustified denial of workers' compensation insurance coverage or the assertion of a groundless defense, based on alleged damages incurred for the carrier's conduct that predated the elaimant's work-erg' compensation award?"

Anderson, 1997 OK 124, ¶ 1, 948 P.2d at 1216. Like Whitson, Anderson alleged an intentional act, yet this Court refused to recognize the pre-award tort.

1183 Whitson and Anderson conclusively establish that not all intentional torts fall outside the jurisdiction of the Workers' Compensation Court. Therefore, even if the actions of the defendants, AIU and AIG, were intentional, that fact does not necessarily exclude them from the exclusive jurisdiction of the Workers' Compensation Act.

IV. REMEDY FOR FAILURE TO PAY

114 A remedy for failure to pay is found in 85 0.8.2001, § 42.2 The Legislature has included a remedy within the Workers' Compensation Act for postjudgment acts, *1084such as when a failure to pay occurs after an award has been ordered. Title 85 0.S8.2001, § 42, provides that the certified copy of the Workers' Compensation award shall have the same foree and be subject to the same law as judgments of the district court. Accordingly, whatever law applies to the district courts for collection of judgments also applies to the collection of awards originating from the Workers' Compensation courts. When a copy of the certification order is filed in the offices of any court clerk and county clerk, and is entered on the judgment docket, the certified unpaid award acquires by force of statute the efficacy of a district court judgment, "transforming an unpaid award in default into an enforceable district court adjudication by clothing the obligor's compensation liability with the attributes of a district court judgment." Lee Way Motor Freight, Inc. v. Welch, 1988 OK 121 ¶ 9, 764 P.2d 191, 195. "When filed in the district court, the certification affords a legal vehicle for enforcement proceedings to be conducted in that forum." Lee Way Motor Freight, 1988 OK 121 ¶ 10, 764 P.2d at 195.

4 15 That award bears interest at the rate of eighteen percent per year from the date it was ordered paid by the Workers' Compensation Court until the date of satisfaction. Upon the filing of a certified copy of the award, a writ of execution issues, process is executed and costs taxed, as in the case of writs of execution on judgments of courts of record. All remedies available to judgment creditors are available to the injured employee. Bishop v. Wilson Quality Homes, 1999 OK 60, ¶ 6, 986 P.2d 512, 514.

1 16 In the Plaintiff's Response Brief, De-Anda complains that the remedy is inadequate to compensate an employee when an insurer fails to pay the ordered award, or fails to pay timely. DeAnda asserts that the insurance industry routinely ignores orders of the Workers' Compensation Court, knowing that nothing will happen as a result of their non-compliance. To support this generalization DeAnda cites Goodwin v. Old Republic Ins. Co., 1992 OK 34, 828 P.2d 431. If Goodwin is the evidence of general noncompliance with the remedy provided in the statutes, it must fail.

117 Goodwin assumed, for the purpose of deciding the issue before the Court, that a workers' compensation insurance company could be liable in tort for a bad faith refusal to pay an employee's workers' compensation award. Goodwin, 1992 OK 34, § 1, 828 P.2d at 431-482. The Court held that the facts in the case did not support an action for bad faith. Goodwin, 1992 OK 34, § 1, 828 P.2d at 431-432. There is no support in the record for the allegation that workers' compensation insurance companies routinely ignore court ordered relief.

118 The purpose of the Act is to fully define the rights of the parties and to wholly compensate an injured worker. The Legislature intended to lessen the adversarial nature of the process. Injecting the tort of bad faith into this legislative scheme would threaten the balance created by the Legislature. The Act provides a balance so employees may be compensated for work-related injuries and employers may stay in business and continue to pay those benefits.

119 The Legislature makes policy decisions in setting the remedies available to an employee in the Workers' Compensation Act. It fixes certain factors in the calculation of awards to achieve exact and uniform results. Mudge Oil Co. v. Wagnon, 1948 OK 354, ¶ 8, 145 P.2d 185, 186. The defendants correctly observe that DeAnda is not so much concerned with the absence of remedies as with the adequacy of the remedies. The adequacy of the remedies found in the Workers' Compensation Act remains with the Legislature. To rule otherwise would be an improper invasion of the constitutionally-mandated balance of power. Okla. Const., art. 5, § 13 Adding a common law tort as a remedy is as much an invasion of the remedies provided by the Legislature as an attempt to alter the schedule of compensation found at 85 O.S. 2001, § 22. We would be substituting our *1085policies for their policies. That is not within the Court's jurisdiction.

{20 The statute sets out a post-judgment remedy for a post-judgment act. Section 42 explicitly includes the insurance carrier. Accordingly, we conclude that the Legislature intended for an insurance carrier's post-judgment failure to pay fall within the exclusivity of the Workers' Compensation Act.

V. GENERAL OBSERVATIONS

T21 The Workers' Compensation Act4 provides a substitute remedy to an employee for accidental injuries received during covered employment. The Act removes the burden of proving negligence. In exchange, the employer receives protection from any other liability to the employee. This protection extends to all liability, whether direct or indirect, that results from the employee's injuries. Harter Concrete Products v. Harris, 1979 OK 38, ¶ 7, 592 P.2d 526, 528. The Act is a mutual compromise. Weber v. Armco, 1983 OK 53, ¶ 4, 663 P.2d 1221, 1224. It encompasses all injuries arising from the employment relationship.

122 In a workers' compensation case where an insurer or a self-insurer fails to pay, the court ordering the payment must enforce its ruling. Both the Workers' Compensation Court and the District Court have provisions and the power to protect their judicial pronouncements. Injecting a new tort into the process is improper.

123 Other jurisdictions are divided over the issue of whether the workers' compensation insurer may invoke the employer's immunity from suits as a defense against a bad faith lawsuit. A slight majority favors immunity from suit.5 An exhaustive listing and analysis of the holdings of the high courts of sister states would not be complete without an analysis of their individual workers' compensation laws. We consider this unnecessary because our holding today is merely an extension of our holdings in prior cases.

1 24 In Kuykendall we observed there are no Oklahoma cases holding an employer lia-bie for bad faith breach in paying a Workers' Compensation award. Kuykendall, 2002 OK 96, ¶ 8, 66 P.3d at 376-377. « We then discuss the difference between a "holding" and "obi-ter dictum" as well as the cases of Goodwin, Whitson, Anderson,6 and Fehring. Though these cases arguably predict a cause of action for bad faith against a workers' compensation carrier for post-award conduct, such predictions were dicta As dicta, this language fails to constitute a judicial decision or holding. Accordingly, it would be inappropriate and improper for us to overrule such dicta.7 The expressions of opinion in the above-referenced cases do not reflect a correct statement of the law in Oklahoma. Oklahoma does not recognize the tort of bad faith against a workers' compensation insurance carrier for post-award conduct.

CERTIFIED QUESTION ANSWERED.

CONCUR: OPALA, V.C.J., LAVENDER, HARGRAVE, BOUDREAU, WINCHESTER, JJ. DISSENTS: WATT (Joins KAUGER, J.), C.J., HODGES (Joins KAUGER, J.), KAUGER, EDMONDSON (Joins KAUGER, J.) JJ.

. Paragraph 8 of Whitson contains dicta regarding whether an insurer owes a duty of good faith *1083and fair dealing in a workers' compensation case. Whitson, 1995 OK 4, ¶ 8, 889 P.2d at 287. This was discussed in Kuykendall and its conclusion disputed. Kuykendall v. Gulfstream Aerospace Technologies, 2002 OK 96, ¶ 8, 66 P.3d 374, 376-377.

. 85 O.S.2001, § 42 provides:

"A. If payment of compensation or an installment payment of compensation due under the terms of an award, except in the case of an appeal of an award or an award from the Multiple Injury Trust Fund, is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Court may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award or an award of compensation from the Multiple Injury Trust Fund, shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction. On or after November 1, 2001, compensation ordered to be paid from the Multiple Injury Trust Fund shall bear simple interest only at the percentage rate of applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes from the date of the award. Any award from the Multiple Injury Trust Fund prior to November 4, 1994, shall bear interest at the percentage rate applicable to judgments in civil cases pursuant to Section 727 of Title 12 of the Oklahoma Statutes. Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.
"B. If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers' Compensation Act or any published rules or regulations promulgated thereunder, the Insurance Commissioner, on the request of a judge of the Court or the Administrator, shall suspend or revoke the license or authority of such insurance carrier to do a compensation business in this state."

. Article 5, § 1 provides: "The Legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives; but the people reserve to themselves the power to propose laws and amendments to the Constitution and to enact or reject the same at the polls independent of the Legislature, and also reserve power at their own option to approve or reject at the polls any act of the Legislature."

. The original act was enacted by Laws 1915, ch. 246, art. 1, § 1.

. Ashley, Stephen S., Bad Faith Actions Liability & Damages § 7:12, nn. 88, 89 (Westlaw 2004). Kuykendall is listed among that majority favoring immunity from suit. See also, Annotation, Tort Liability of Worker's Compensation Insurer for Wrongful Delay or Refusal to Make Payments, 8 A.L.R.4th 902, § 2 (Westlaw 2004).

. Anderson v. United States Fidelity and Guaranty Co., 1997 OK 124, 948 P.2d 1216

. "A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law directly opposite to that which was before given, thereby depriving the earlier opinion of all authority as a precedent." Black's Law Dictionary 995, (5th ed.1979). "2. (Of a court) to overturn or set aside (a precedent) by expressly deciding that it should no longer be controlling law <in Brown v. Board of Education, the Supreme Court overruled Plessy v. Ferguson>." Black's Law Dictionary (Westlaw, 7th ed.1999).