Terrell Biggs, Jr. v. Liberty Mutual Insurance Company ( 2021 )

11/22/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs October 1, 2021
TERRELL BIGGS, JR. v. LIBERTY MUTUAL INSURANCE COMPANY
Appeal from the Circuit Court for Sullivan County
No. C41023 John S. McLellan, III, Judge
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No. E2021-00138-COA-R3-CV
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The plaintiff challenges the order of the Sullivan County Circuit Court (“trial court”)
granting summary judgment in favor of the defendant, Liberty Insurance Corporation 1
(“Liberty”), and dismissing his complaint on the merits with prejudice. The trial court
granted summary judgment to Liberty based on lack of subject matter jurisdiction and its
conclusion that the plaintiff would be unable to produce sufficient evidence at trial to
withstand a motion for directed verdict. Because the plaintiff’s claims are barred by the
exclusive remedy provision of the Tennessee Workers’ Compensation Act, we affirm the
trial court’s grant of summary judgment to Liberty, albeit for a different reason than that
found by the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which W. NEAL
MCBRAYER and KENNY W. ARMSTRONG, JJ., joined.
Michael C. Murphy, Morristown, Tennessee, for the appellant, Terrell Biggs, Jr.
Brian C. Neal and Alexandria A. Rhoades, Nashville, Tennessee, for the appellee, Liberty
Insurance Corporation.
OPINION
I. Factual and Procedural Background
The plaintiff, Terrell Biggs, Jr., a former employee of White’s Discount Foods, Inc.,
in Johnson City, Tennessee, suffered a spinal cord injury in May 1990 when a pallet of
1
According to the defendant’s pleadings, it was incorrectly named in the plaintiff’s complaint and notice
of appeal as Liberty Mutual Insurance Company.
sugar rolled down the ramp of a truck and struck Mr. Biggs while he was assisting with the
set-up of a store in Boone, North Carolina. Mr. Biggs subsequently filed a workers’
compensation action in the Washington County Law Court (“Washington County court”),
which entered an order in June 1992, concluding that the incident had rendered Mr. Biggs
permanently disabled and awarding him permanent total disability benefits and lifetime
future medical benefits. Upon Mr. Biggs’s request, the Washington County court entered
a second order in October 1992, awarding Mr. Biggs a one-time commutation of his
workers’ compensation disability benefits. Mr. Biggs, however, maintained his right to
future medical expenses. As the workers’ compensation carrier, Liberty became
responsible for paying all of Mr. Biggs’s future medical expenses related to his back injury.
Mr. Biggs received medical benefits from Liberty without issue until 2014 when
Liberty allegedly pressured Mr. Biggs to accept a lump-sum settlement offer in lieu of
future medical benefits, forced him to receive pain management from a pain clinic rather
than his physician of twenty-four years, and denied approval of and payment for prescribed
pain medications. On May 5, 2015, Mr. Biggs filed a complaint in the trial court alleging
that Liberty had engaged in or committed (1) outrageous conduct and intentional infliction
of emotional distress, (2) fraudulent and intentional misrepresentation, and (3) a violation
of the covenant of good faith and fair dealing. Mr. Biggs’s three causes of actions derived
from what he perceived to be Liberty’s “interference and disruption” with his medical care
to “extort,” “harass,” and pressure him to accept Liberty’s settlement offer.
Specifically, Mr. Biggs averred that Liberty had sent him a letter detailing a
settlement offer in May 2014, which coincided with a “pattern and practice” of denying
payment for and approval of his prescribed pain medications. In addition, Mr. Biggs
asserted that Liberty had fraudulently and falsely expressed to him that his long-time
orthopedic physician, Dr. Galen Smith, was no longer willing to treat him for pain
management. Mr. Biggs further alleged that Liberty had attempted to force him to seek
pain management at an out-of-town pain clinic in Knoxville, Tennessee, a five-hour round
trip from Mr. Biggs’s home in Kingsport, Tennessee. Mr. Biggs also asserted that Liberty
had falsely and fraudulently expressed to him that there were no local pain management
doctors in Kingsport. According to Mr. Biggs, when he eventually began seeking treatment
from a Kingsport pain clinic, Liberty continued to deny approval for prescribed pain
medication. As a result of Liberty’s alleged actions and omissions, Mr. Biggs claimed that
he had suffered physical pain, mental and emotional injury, and loss of enjoyment of life.
On February 4, 2016, Liberty responded with a motion to dismiss Mr. Biggs’s
complaint. Therein, Liberty contended that the trial court should dismiss the complaint
because (1) Mr. Biggs’s claims were barred by the exclusive remedy provision in
Tennessee Code Annotated § 50-6-108 of the Tennessee Workers’ Compensation Act and
(2) the trial court lacked subject matter jurisdiction pursuant to the prior suit pending
doctrine inasmuch as Mr. Biggs’s workers’ compensation claim had been heard by the
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Washington County court in 1992. Following a hearing, the trial court entered an order on
July 5, 2016, denying Liberty’s motion to dismiss.
Thereafter, Liberty filed an answer to Mr. Biggs’s complaint on September 19,
2016. In its answer, Liberty denied that it had interfered with Mr. Biggs’s medical care or
that it had engaged in a pattern or practice of denying payment for any treatment that would
have been deemed reasonable, authorized, and/or necessary under the Tennessee Workers’
Compensation Act. Liberty justified any refusal on its part to approve or pay for certain
medications by citing recommendations that came from “Utilization Review.”2 According
to Liberty, following a utilization review, conducted by Dr. Paul Lafavore, Liberty denied
certain treatments ordered by Dr. Smith and recommended that Mr. Biggs wean off Lortab,
one of two pain medications that Dr. Smith had prescribed. Ultimately, Liberty asserted
that it had complied with the provisions of the Tennessee Workers’ Compensation Act.
Three years later, on October 22, 2019, Liberty filed a motion for summary
judgment, a supporting memorandum of law, and a statement of undisputed material facts.
Liberty again argued that the trial court lacked subject matter jurisdiction under the prior
suit pending doctrine and the “doctrine of civil contempt,” asserting that Mr. Biggs’s claims
had to be addressed in the Washington County court where the workers’ compensation
orders had originated. Moreover, Liberty reiterated that the three causes of action asserted
by Mr. Biggs were barred by the exclusive remedy provision of Tennessee Code Annotated
§ 50-6-108. Lastly, Liberty contended that Mr. Biggs would be unable to prove the
elements of his claims. Mr. Biggs subsequently filed several responses to Liberty’s motion
for summary judgment.
The trial court conducted a hearing with regard to Liberty’s motion for summary
judgment on January 17, 2020. During the hearing, the trial court expressed that it could
not make sense of Mr. Biggs’s responses to Liberty’s motion for summary judgment and
statement of undisputed material facts, emphasizing that Mr. Biggs had failed to properly
cite to the record in his responses. In response to Liberty’s argument that the trial court
lacked subject matter jurisdiction, Mr. Biggs’s counsel argued that the court had already
dismissed Liberty’s postulate when it denied its motion to dismiss in July 2016. Mr.
2
Tennessee Code Annotated § 50-6-102(20) (Supp. 2021) defines utilization review, in pertinent part, as:
[E]valuation of the necessity, appropriateness, efficiency and quality of medical care
services, including the prescribing of one (1) or more Schedule II, III, or IV controlled
substances for pain management for a period of time exceeding ninety (90) days from the
initial prescription of such controlled substances, provided to an injured or disabled
employee based on medically accepted standards and an objective evaluation of those
services provided.
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Biggs’s counsel nevertheless orally requested that the court transfer the case to the
Washington County court.3
The trial court entered its order granting Liberty’s motion for summary judgment
on March 4, 2020, also denying Mr. Biggs’s request for transfer. The trial court deemed
Liberty’s statement of undisputed material facts admitted due to Mr. Biggs’s failure to
properly respond. In the court’s conclusions of law, it found that it lacked subject matter
jurisdiction based on Mr. Biggs’s failure to contest Liberty’s argument on this point.
Notwithstanding its conclusion that it lacked subject matter jurisdiction, the court also
granted Liberty’s motion for summary judgment on the merits and concluded that Mr.
Biggs would have been unable to produce sufficient evidence at trial to withstand a motion
for directed verdict. The trial court dismissed Mr. Biggs’s suit against Liberty with
prejudice. After filing an unsuccessful motion to alter or amend the judgment, Mr. Biggs
timely appealed.
II. Issue Presented
Mr. Biggs raises one issue on appeal, which we have restated slightly as follows:
Whether the trial court erred in granting Liberty’s motion for summary
judgment.
III. Standard of Review
The grant or denial of a motion for summary judgment is a matter of law; therefore,
our standard of review is de novo with no presumption of correctness. See Rye v. Women’s
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick Broad. Co. of
Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013) (citing Kinsler v. Berkline,
LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court must “make a fresh
determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied.” Rye, 477 S.W.3d at 250. As our Supreme Court has
explained concerning the requirements for a movant to prevail on a motion for summary
judgment pursuant to Tennessee Rule of Civil Procedure 56:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party may satisfy its burden of production either (1) by affirmatively
negating an essential element of the nonmoving party’s claim or (2) by
demonstrating that the nonmoving party’s evidence at the summary judgment
stage is insufficient to establish the nonmoving party’s claim or defense. We
reiterate that a moving party seeking summary judgment by attacking the
3
There is no indication in the record that Mr. Biggs filed a written motion to transfer his case to the
Washington County court.
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nonmoving party’s evidence must do more than make a conclusory assertion
that summary judgment is appropriate on this basis. Rather, Tennessee Rule
56.03 requires the moving party to support its motion with “a separate
concise statement of material facts as to which the moving party contends
there is no genuine issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to
be set forth in a separate, numbered paragraph and supported by a specific
citation to the record.” Id. When such a motion is made, any party opposing
summary judgment must file a response to each fact set forth by the movant
in the manner provided in Tennessee Rule 56.03. “[W]hen a motion for
summary judgment is made [and] . . . supported as provided in [Tennessee
Rule 56],” to survive summary judgment, the nonmoving party “may not rest
upon the mere allegations or denials of [its] pleading,” but must respond, and
by affidavits or one of the other means provided in Tennessee Rule 56, “set
forth specific facts” at the summary judgment stage “showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must
do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct.
1348, [89 L.Ed.2d 538 (1986)]. The nonmoving party must demonstrate the
existence of specific facts in the record which could lead a rational trier of
fact to find in favor of the nonmoving party. If a summary judgment motion
is filed before adequate time for discovery has been provided, the nonmoving
party may seek a continuance to engage in additional discovery as provided
in Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye, 477 S.W.3d at 264-65. “Whether the nonmoving party is a plaintiff or a defendant—
and whether or not the nonmoving party bears the burden of proof at trial on the challenged
claim or defense—at the summary judgment stage, ‘[t]he nonmoving party must
demonstrate the existence of specific facts in the record which could lead a rational trier of
fact to find in favor of the nonmoving party.’” TWB Architects, Inc. v. The Braxton, LLC,
578 S.W.3d 879, 889 (Tenn. 2019) (quoting Rye, 477 S.W.3d at 265). Pursuant to
Tennessee Rule of Civil Procedure 56.04, the trial court must “state the legal grounds upon
which the court denies or grants the motion” for summary judgment, and our Supreme
Court has instructed that the trial court must state these grounds “before it invites or
requests the prevailing party to draft a proposed order.” See Smith v. UHS of Lakeside,
Inc., 439 S.W.3d 303, 316 (Tenn. 2014).
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IV. Exclusive Remedy Provision of Tennessee’s Workers’ Compensation Act
It is undisputed that Mr. Biggs’s relationship with Liberty derived from a 1992 order
entered by the Washington County court, which had awarded Mr. Biggs future medical
benefits and named Liberty as the workers’ compensation carrier responsible for paying
such benefits. Mr. Biggs alleged in his complaint two common law tort claims, intentional
infliction of emotional distress and intentional misrepresentation, and a common law
contract claim, violation of the covenant of good faith and fair dealing. In its motion for
summary judgment and supporting memorandum, Liberty posited that the Tennessee
Workers’ Compensation Act (“the Act”) provided the exclusive remedy for a Tennessee
workers’ compensation plaintiff, pursuant to Tennessee Code Annotated § 50-6-108, and
that this provision excluded all other rights and remedies not provided for by the Act.
Although the trial court did not address this argument in its order granting summary
judgment, we agree with Liberty and conclude that this was the proper predicate for
granting Liberty’s motion for summary judgment and dismissing Mr. Biggs’s complaint.
The Act confers benefits that are “purely statutory,” and “the circumstances under
which they are paid and the manner in which they are calculated depend solely upon
statutory authority.” Perry v. Transamerica Ins. Grp., 703 S.W.2d 151, 153 (Tenn. Ct.
App. 1985); see Curtis v. G.E. Cap. Modular Space, 155 S.W.3d 877, 882 (Tenn. 2005)
(“The right to workers’ compensation benefits is a unique concept in the law, derived solely
from statutory provisions rather than from the common law.”). This Court has previously
explained that the Act “involve[s] a quid pro quo in that workers give up certain common
law rights against their employers in return for a system providing more certain
compensation, totally independent of any fault on the part of the employer.” Perry, 703
S.W.2d at 153.
Under the Act, the relinquishment of common law rights and remedies on the part
of employees is codified in Tennessee Code Annotated § 50-6-108 (2014), which provides
in pertinent part:
(a) The rights and remedies granted to an employee subject to this
chapter, on account of personal injury or death by accident, including
a minor whether lawfully or unlawfully employed, shall exclude all
other rights and remedies of the employee, the employee’s personal
representative, dependents or next of kin, at common law or
otherwise, on account of the injury or death.
The exclusive remedy provision of the Act is “triggered when an employee suffers an
injury arising out of and in the course and scope of employment.” Clawson v. Burrow, 250
S.W.3d 59, 62 (Tenn. Ct. App. 2007). “[T]he employee must accept the remedies of the
Workers’ Compensation Law, and those remedies exclude all of the employee’s other
rights and remedies.” Id.-6-
Moreover, the Act defines “employer” to include the employer’s insurer. Tenn.
Code Ann. § 50-6-102(13) (Supp. 2021) provides:
“Employer” includes any individual, firm, association or corporation, the
receiver or trustee of the individual, firm, association or corporation, or the
legal representative of a deceased employer, using the services of not less
than five (5) persons for pay, except as provided in § 50-6-902, and, in the
case of an employer engaged in the mining and production of coal, one (1)
employee for pay. If the employer is insured, it shall include the employer’s
insurer, unless otherwise provided in this chapter[.]
(Emphasis added.) See Perry, 703 S.W.2d at 154 (“[U]nder our statute the insurer is
equated fully and completely with the employer”).
Therefore, an action against the employer’s compensation carrier does not fall
outside the scope of the Act or the exclusive remedy provision. In fact, this Court has
specifically affirmed trial courts in dismissing suits pursuant to the exclusive remedy
provision when workers’ compensation plaintiffs have sought “damages by virtue of an
alleged mishandling of workers’ compensation claims by the employer and its insurance
carrier.” See Leatherwood v. United Parcel Serv., 708 S.W.2d 396, 401 (Tenn. Ct. App.
1985); see, e.g., Davis v. Alexsis, Inc., 2 S.W.3d 228, 229-30 (Tenn. Ct. App. 1999); Perry,
703 S.W.2d at 154.
We find the facts of Perry to be nearly identical to the facts of the present case and
therefore illustrative. In Perry, this Court considered whether the Act’s exclusive remedy
provision “bar[red] an employee who ha[d] sustained a compensable injury covered by the
act from maintaining an independent action against the workers’ compensation carrier of
the employer.” Perry, 703 S.W.2d 151. The Perry plaintiff filed a complaint in the Shelby
County Circuit Court against the defendant compensation carrier based on its “alleged bad
faith in handling the workers’ compensation claim, negligence in regard to handling that
claim, and outrageous conduct.” Id. Similar to Mr. Biggs’s allegations against Liberty,
the Perry plaintiff asserted that the defendant had failed to “furnish her with a choice of
physicians,” timely pay her benefits, and authorize her admission into a hospital for a
scheduled surgery. Id. at 152. The defendant compensation carrier filed a motion to
dismiss, arguing that the Act provided the exclusive remedy for the plaintiff and that the
Act’s exclusive “penal provisions for bad faith failure to pay benefits was likewise an
exclusive remedy.” Id. at 153. The circuit court accordingly granted the motion to dismiss.
Id.
In affirming the circuit court’s order dismissing the plaintiff’s complaint, the Perry
Court rejected the plaintiff’s argument that her damages “arose from an ‘injury’ that did
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not occur in the course of her employment” and thereby rendered her suit outside the scope
of the Act. Id. at 154. In rejecting this argument, this Court concluded:
Workers’ compensation rights are purely creatures of statute, and, therefore,
we must look to the particular statute with which we are dealing. It has
already been pointed out that under our statute the insurer is equated fully
and completely with the employer. The acts complained of were committed
by a representative of the insurer. Paraphrasing the intent of the statute, the
acts complained of were committed by a representative of the employer.
Id. Therefore, inasmuch as the alleged “mishandling of the workers’ comp claim” was
committed by a representative of the insurer and, by extension, the employer, this Court
concluded that the Act governed the remedies available to the workers’ compensation
plaintiff and affirmed the circuit court’s order dismissing the complaint, determining that
the plaintiff did not have a cause of action. Id. at 155-56.
Although he presents no argument in his appellate brief as to why the exclusive
remedy provision should not preclude his claims, Mr. Biggs argued in the trial court that
intentional torts fall outside the scope of the exclusive remedy provision. Tennessee courts
have indeed created an exception to the exclusive remedy provision if “the employee is
able to prove the employer had an actual intent to injure the employee.” Gonzales v. Alman
Constr. Co., 857 S.W.2d 42, 46 (Tenn. Ct. App. 1993). However, this exception has been
limited to the original injury for which workers’ compensation benefits were initially
sought rather than to a subsequent alleged injury, such as Mr. Biggs’s claim, against a
compensation carrier for the mishandling of a workers’ compensation claim. See id.In Leatherwood, the plaintiff alleged, much like Mr. Biggs has, that the defendant
compensation carrier had “intentionally inflicted mental and emotional anguish upon him
in its handling of his workers’ compensation claim,” committed outrageous conduct, and
conspired to defraud the plaintiff of his benefits. Leatherwood, 708 S.W.2d at 398. Despite
the intentional nature of these allegations, this Court affirmed the trial court’s order
granting summary judgment based on the Act’s exclusive remedy provision. Id. While
noting that the legislature had enacted a penalty provision for insurance carriers who failed
to pay compensation, this Court concluded: “The legislature did not undertake to add any
further provisions concerning the actions of the employer in dealing with the employee
concerning workers’ compensation benefits.” Id. at 401.
Finally, we note that the trial court granted Liberty’s motion based on, inter alia, a
lack of subject matter jurisdiction. We conclude that the trial court erred in determining
that it lacked subject matter jurisdiction. According to the trial court’s order, it lacked
subject matter jurisdiction because Mr. Biggs had failed to respond to Liberty’s arguments
concerning subject matter jurisdiction. However, Mr. Biggs’s failure to respond to
Liberty’s argument did not deny the trial court the power to hear and adjudicate his claims.
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In addition, Liberty concedes on appeal that the trial court did in fact possess subject matter
jurisdiction respecting Mr. Biggs’s tort and contract claims because Mr. Biggs alleged that
he had suffered harm in Sullivan County. See Tenn. Code Ann. § 16-10-101 (2021) (“The
circuit court is a court of general jurisdiction, and the judge of the circuit court shall
administer right and justice according to law, in all cases where the jurisdiction is not
conferred upon another tribunal.”); Tenn. Code Ann. § 20-4-101(a) (2021) (“In all civil
actions of a transitory nature, unless venue is otherwise expressly provided for, the action
may be brought in the county where the cause of action arose or in the county where the
individual defendant resides.”); Five Star Express, Inc. v. Davis, 866 S.W.2d 944, 945 n.1
(Tenn. 1993) (“Typical examples of transitory actions are actions sounding in tort and
contract.”). We agree with Liberty’s concession on appeal and conclude that the trial court
possessed subject matter jurisdiction to adjudicate Mr. Biggs’s claims.
Despite the trial court’s erroneous conclusion that it lacked subject matter
jurisdiction over Mr. Biggs’s claims, we may still affirm the overall decision of the trial
court to grant Liberty’s motion for summary judgment. See In re Conservatorship for
Allen, No. E2010-01625-COA-R10-CV, 2010 WL 5549037, at *8 (Tenn. Ct. App. Dec.
29, 2010) (“We are empowered on appeal to sustain the trial court’s order if it reached the
correct result for the wrong reasons.”). Therefore, we affirm the trial court’s order granting
Liberty’s motion for summary judgment but on the basis that the exclusive remedy
provision of the Act precluded Mr. Biggs’s common law claims.
V. Conclusion
For the foregoing reasons, we affirm the trial court’s order granting Liberty’s motion
for summary judgment and dismissing Mr. Biggs’s complaint with prejudice. Accordingly,
we remand this case for collection of costs below. Costs on appeal are taxed to the
appellant, Terrell Biggs, Jr.
s/ Thomas R. Frierson, II_____________
THOMAS R. FRIERSON, II, JUDGE
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