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CHARLES DANE LEATHERS v. AETNA CASUALTY & SURETY COMPANY AND JOHANNA RICE

OCTOBER 01, 1986

CHARLES DANE LEATHERS
v.
AETNA CASUALTY & SURETY COMPANY AND JOHANNA RICE



BEFORE ROY NOBLE LEE, P.J., ROBERTSON and SULLIVAN, JJ.

ROY NOBLE LEE, PRESIDING JUSTICE, FOR THE COURT:

Charles Dane Leathers has appealed from a judgment of the Circuit Court of Lee County, Mississippi, sustaining a demurrer to the declaration and dismissing the amended declaration filed by him against Aetna Casualty & Surety Company and Johanna Rice. The questions presented for decision are:

(1) whether the lower court improperly sustained a demurrer and dismissed the complaint in holding that the workers' compensation statute excludes bad faith claims against a carrier/employer.

 (2) whether or not the appellees are liable to appellant for tortious breach of contract.

 Without detailing the numerous proceedings that have occurred in the workers' compensation case of Charles Dane Leathers v. Aetna Casualty & Surety Company and Johanna Rice it is sufficient for the purposes of this decision to mention that the record reflects appellant Leathers sustained a first

 injury while in the course of his employment on October 7, 1976, and a second injury in the course of his employment on September 19, 1977. His injuries were found to be compensable by the administrative law judge, the full Commission, and the Circuit Court of Lee County. This Court affirmed the award of compensation benefits May 28, 1980, and remanded the cause for calculation of benefits to claimant. Aetna's petition for rehearing was denied July 9, 1980. The record and briefs reflect that little, if any, benefits have been paid to claimant resulting from that litigation. Almost ten (10) years have expired since the first injury was sustained.

 On July 9, 1981, appellant filed a declaration in the Circuit Court of Lee County, Mississippi, seeking two million dollars ($2,000,000) actual damages and forty million dollars ($40,000,000) punitive damages from the appellees, asserting a bad faith claim against them. On October 9, 1981, appellees filed a demurrer to the declaration on the ground of failure to state a claim upon which relief could be granted, which demurrer was overruled May 25, 1982. On November 3, 1982, appellees filed a motion for reconsideration of the demurrer based on Taylor v. U.S.F.& G., 420 So. 2d 594 (Miss. 1982), and on January 21, 1983, the lower court sustained the demurrer. An amended declaration was filed and an order was entered by the lower court May 15, 1984, dismissing the amended declaration under the authority of Taylor v. U.S.F.& G., supra.

 I. - II.

 The Taylor court in a unanimous decision held that" Upon this record, we cannot say that the legislators, in codifying `Exclusiveness of Liability' in 71-3-9, supra, intended to allow a tort action such as the one asserted here by the plaintiff. "420 So. 2d 566. That section provides that the liability of an employer to pay compensation shall be exclusive and in place of all other liability of such employer to the employee. The declaration in Taylor charged that U.S.F.& G." negligently, carelessly, wrecklessly [sic], willfully and hazardiously [sic], failed, refused and neglected to process legitimate medical claims. . . . "It further charged that the defendant there declined responsibility for the hospitalization and other expenses related to Taylor's injury and needful treatment.

 Since Taylor, supra, this Court has addressed the question again. In Southern Farm Bureau Casualty Ins. Co. v. Holland, 469 So.2d 55 (Miss. 1984), the Court had the same question before it on exclusive remedy of 71-3-9. In Holland, a majority of the Court was of the opinion that the complaint charged an intentional tort and distinguished

 Holland from Taylor in the following language:

 A review of the Taylor record discloses without question that the pleading sounds in negligence. No intentional tort is alleged, as is present in the allegation of this case. The rule in Taylor is accordingly limited to cases where the injured worker attempts to sue the carrier for negligent refusal to pay. In the case sub judice the pleading alleges the withholding of compensation for no legitimate or arguable reason and in an effort to force a settlement for an inadequate amount, harrassment [sic] regarding an auto insurance policy issued by the same company, refusal to pay medical bills, using economic pressure to force a settlement, all such acts with" grossness and recklessness "as to evince utter indifference to the plaintiff. The comparison of the pleading factually distinguishes the cases. This Court, therefore, concludes that Taylor does not control this case and has no application to cases alleging independent, intentional torts between a worker and the employer's compensation carrier.

 469 So. 2d at 57.

 Holland affirmed the lower court in overruling Southern Farm Bureau Casualty Insurance Company's motion ...


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