OSCN Found Document:GAASCH v. ST. PAUL FIRE AND MARINE INSURANCE CO.
¶1 Plaintiff brought an action in the District Court alleging the St. Paul Fire and Marine Insurance Company failed to timely provide reasonable and necessary medical treatment as previously ordered by the Workers' Compensation Court. St. Paul filed a motion for summary judgment which was granted. We conclude plaintiff's District Court action based upon a previous workers' compensation court adjudication required plaintiff to obtain a certification order prior to bringing an action in District Court.
¶2 Troy required multiple surgeries over several years due to his work-related injury. Troy was hospitalized due to his work-related injury. He allegedly became malnourished with accompanying weight loss and different physicians recommended a nutritional consult. A nurse case manager recommended monthly a nutritional consult. Troy died during his hospitalization approximately six months after the initial recommendation for a nutritional consult.
¶3 Prior to his work-related injury, Troy underwent a gastric bypass surgery and allegedly suffered from a malabsorption syndrome secondary to this surgery. A disagreement arose between insurer and Troy concerning whether the insurer was required to pay for a nutritional consult. Insurer claimed Troy's nutritional problems were created prior to his work-related injury and his nutritional state in the hospital was not due to the work-related injury.
¶4 During his hospitalization Troy's counsel filed a Form 9 and requested an order from the Workers' Compensation Court for treatment by a nutritionist. The Form 9 was filed three days prior to Troy's death.1 Two days later and one day prior to his death, St. Paul Fire & Marine Insurance Company, the workers' compensation insurance carrier, approved the request for a nutritional consult. Troy died on February 26, 2010.
¶5 A few months later the Workers' Compensation Court held a hearing on the issue of death benefits. The court found "without a doubt that claimant died as a direct result of the original injury." The court made findings in support of this conclusion and relied upon one doctor's report and another doctor's autopsy report. The court awarded a lump sum payment, continuing payments, and an amount for funeral expenses. The payments were ordered to be paid to the surviving spouse and two children. This order was affirmed in part and modified in part by a three judge panel of the court. The order was reduced because one of the children was an adult. The panel agreed that claimant died as a direct result of his original work-related injury combined with "consequential injuries." The Court of Civil Appeals agreed in a subsequent appeal.
¶6 Stacey Gaasch, as personal representative of Troy's estate, brought an action in the District Court for Oklahoma County, and alleged the workers' compensation insurance carrier failed to provide Troy with the reasonable and necessary medical treatment as required by "the final orders of the Oklahoma Workers' Compensation Court."2 Plaintiff alleged McGivern & Gilliard, P.C., had acted as the agent for the insurer. Plaintiff stated the insurer breached its duty of "good faith" and characterized this allegation as a "bad faith" claim.
¶7 The second part of the petition plaintiff characterized as a claim for "wrongful death." Plaintiff alleged Troy's survivors suffered compensable damages arising from the insurer's breach of its duty of good faith and fair dealing associated with the insurance contract. The third part of the petition alleges the defendants (1) continued to deny approval of reasonable and necessary medical treatment until the day before Troy died, (2) made statements shortly before his death it would be cheaper for the insurer if Troy would die, and (3) the insurer's conduct and statements caused Stacey severe emotional distress.
¶8 A motion to dismiss was filed by McGivern & Gilliard and St. Paul. The motion to dismiss by McGivern & Gilliard was denied on Plaintiff's intentional infliction of emotional distress claim, and the trial court noted plaintiff had agreed the bad faith and wrongful death claims were not being asserted against McGivern & Gilliard.
¶9 The motion to dismiss brought by St. Paul was granted on plaintiff's "claim of bad faith" and denied on plaintiff's wrongful death claim. The trial court noted plaintiff voluntarily dismissed with prejudice the claim against St. Paul based upon intentional infliction of emotional distress.3
¶10 One claim was left for adjudication against McGivern & Gilliard, the one for intentional infliction of emotional distress. Plaintiff subsequently filed a dismissal with prejudice for "this case," i.e., all causes of action against McGivern & Gilliard, and this party dropped out of the case. After the dismissal of McGivern & Gilliard one claim was left for adjudication in this case, the claim against St. Paul for wrongful death.
¶11 St. Paul sought summary judgment on plaintiff's wrongful death claim. St. Paul argued: (1) No wrongful death claim may arise from the breach of an insurance contract; (2) Plaintiff's exclusive remedy was provided by the worker' compensation statutes; (3) No evidence exists that Troy's death was the result of a denial of the nutritional consult; (4) No order was issued by the Workers' Compensation Court required for a breach of contract claim; and (5) Any claim for damages based upon a breach of contract would be limited to the value of the nutritional consult. St. Paul also argued Troy could have obtained a nutritional consult and submitted the charge to the Workers' Compensation Court as part of his claim. Defendant asserted Troy could have, at any time, filed a Form 9 with the Workers' Compensation Court and the issue of a nutritional consult would have been set for trial and determination by the Workers' Compensation Court.
¶12 Plaintiff responded to St. Paul's arguments and argued the wrongful death claim was not based upon a tort, but breach of an insurance contract. Plaintiff also argued the workers' compensation death benefits did not bar a separate recovery for wrongful death because the insurer did not "stand in the shoes of the employer." Plaintiff argued no certification order from the Workers' Compensation Court was required to bring a District Court action for an insurer's failure to provide medical benefits to a person covered by an insurance contract, i.e., opinions from this Court requiring a certification order apply to bad faith actions and not actions for breach of contract. Plaintiff also argued that "medical providers, with rare exception, require authorization from a workers' compensation carrier prior to providing treatment." Further, plaintiff alleged the lack of a timely authorization from St. Paul was a cause of Troy's death.
¶13 The District Court granted St. Paul's motion for summary judgment. The trial court simultaneously determined plaintiff's motion for partial summary judgment was moot because of the judgment granted to St. Paul. Plaintiff appealed and this Court retained the appeal. Our review is limited to those assignments of error listed in plaintiff's petition in error which are supported by argument and authority in plaintiff's trial court briefs.4
I. Wrongful Death and Plaintiff's Alleged Breach of Contract
¶14 The common law provided no remedy in tort when a person's injury to another resulted in that person's death because the injured person's right of action abated on death.5 Generally, a cause of action in the common law based on contract survived and could be enforced by the personal representative of the deceased.6 Whether an action survived was not based upon the form of the action being in contract versus tort, but whether the alleged injury was to property and rights of property which survived, or injury to the person which did not survive.7
¶15 The harshness of this situation was ameliorated by statutes allowing for the decedent's personal representative to bring an action for the decedent's death only if at the time of his or her death, the decedent had a right of recovery for the injuries in suit.8 General survival and abatement statutes are codified at 12 O.S.2011 §§ 1051-155, inclusive, where, for example, 12 O.S. §§ 10519 & 105310 include causes of action for injury to the deceased, including pain and suffering, as well as a cause of action for damages resulting from the death of the injured person.11
¶16 The § 1053 action allows a plaintiff to recover for "loss of consortium and the grief of the surviving spouse." Plaintiff argues a wrongful death action may be based upon a breach of contract where damages for personal injuries are sought. Again, plaintiff argues the action is for consequential damages resulting from a wrongful death and is based in contract.
¶17 Historically, when an action is a claim which seeks to recover for unliquidated damages for a personal injury caused by negligence, although the negligence complained of amounts to a breach of contract on the part of the defendant, the action is one ex delicto and the law of torts governs that claim.12 We have explained a surviving spouse's wrongful death action "is purely statutory, [and] suit may be brought only by a person expressly authorized by statute to do so" within the two-year limitations period provided by § 1053.13 Of course, an action founded upon a contract survives and may be brought by an executor or administrator of the deceased.14
¶18 We have explained that the injury-to-the-plaintiff action lies only if at the time of death the decedent had a right of recovery for the injury in suit,15 but the wrongful death independent survivor statutory action is viewed as not a derivative action16 arising completely from the personal-injury-to-the-plaintiff action.17 An action for breach of contract and an action in tort may arise from the same set of facts and a person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both.18 A person injured by the substandard performance of a duty derived from a contractual relationship may rely on a breach of contract or tort theory, or both; but even if the evidence supports both, the claimant can achieve but a single recovery.19 This single recovery by a plaintiff has been historically recognized by the Legislature in statute, and our Court has explained that an employer and insurance carrier have been protected from a claimant obtaining a "double recovery" for the same injury.20
¶19 As we explain, plaintiff's action against the insurance carrier is for allegedly causing or contributing to the cause of the worker's death, this same death for which workers' compensation benefits were paid. Plaintiff's action is attempting to make the insurance carrier a type of unspecified "successive tortfeasor"21 or impose one type of "concurrent-breach-of-contract doctrine"22 where the insurance carrier's actions independent of the workers' compensation cause of action have concurred with the injury element of the compensation cause of action to produce the single or indivisible injury, i.e., the death of the deceased. Further, plaintiff's alleged successive/concurrent cause of action assumes a right to recover damages without the prior payment of death benefits creating any legal consequence for the asserted successive/concurrent cause of action.
¶20 Plaintiff's action arises from a workers' compensation insurance policy and a court-ordered duty based on that policy where (1) plaintiff alleges a death occurred and (2) workers' compensation death benefits were previously paid for that death. Plaintiff's District Court action to recover for Troy's injury is governed by workers' compensation jurisdictional remedies as we now explain, and we need not reach the issues of alleged successive or concurrent liability for an injury for which workers' compensation benefits were previously paid.23
II. District Court Action Based Upon Delay in Workers' Compensation
Medical Care Must Be Certified by the Workers' Compensation Court
¶21 Plaintiff has brought an action against a workers' compensation insurer. An insurer's duty may arise from one of three possible sources: (1) an express promise to pay in the insurance contract, (2) a promise implied in fact, or (3) a promise implied in law.24 An example of a promise implied in fact is a third-party beneficiary contract.25 Plaintiff relies upon the employer's workers' compensation insurance policy being created for the benefit of workers such as the plaintiff and the third party beneficiary statute, 15 O.S. 2011 § 29,26 as well as an order of the Workers' Compensation Court requiring St. Paul to pay for Troy's medical care.
¶22 A worker's compensation insurer owes a duty to act in good faith and deal fairly towards the injured employee who by statute is made a third-party beneficiary to the insurance.27 In Sizemore v. Continental Cas. Co. we said that a bad faith claim against a workers' compensation insurer is separate from the injured worker's employment relationship, and it arises against an insurer only after there has been an award against the employer.28
¶23 Our 2009 opinion in Summers v. Zurich American Insurance Company29 addressed an allegation an insurer had failed to provide benefits in a timely manner as ordered by the Workers' Compensation Court, and the plaintiff brought a District Court action alleging a violation of the insurer's duty of good faith and fair dealing. We noted the procedure for a worker obtaining an order from the Workers' Compensation Court prior to filing an action in a District Court and the required notice to an employer and insurer. The procedure for obtaining an order in the Workers' Compensation Court provided a respondent and insurance carrier with a hearing and an opportunity for them show a good cause why a benefit previously ordered by that court had not been provided.30 If the insurer failed to show good cause for not providing a court-ordered benefit, then the Workers' Compensation Court issued an order with specific findings stating the basis for that court's determination on the insurer's failure of proof in the proceeding before the court.
¶24 We explained the procedure for obtaining a certification order was not restricted to a workers' compensation monetary award, and "encompasses an insurer's bad faith refusal to provide any benefits which (1) have been ordered in a final order of the Workers' Compensation Court and (2) have been certified as having not been provided as ordered."31 If a claimant received a Workers' Compensation Court order certifying that non-monetary benefits were not provided as awarded by that court, then the claimant could "proceed with a tort claim for bad faith in district court."32
¶25 In Meeks v. Guarantee Insurance Company,33 the Court emphasized the above-referenced language in Summers explaining our prior opinion in Sizemore34 and the certification procedure in the Workers' Compensation Court.35 The employer and its insurer must be given at least ten days notice "prior to the trial on certification."36 This trial adjudicates a claimant's allegation that a previously awarded benefit was not provided. This procedure provides employer with a notice and opportunity to be heard on the issue whether a particular workers' compensation benefit was previously awarded and whether good cause exists for not granting the claimant's application for a certification order.
¶26 The Court again explained that an employee seeking to obtain previously awarded non-monetary benefits should proceed directly to a rule of the Workers' Compensation Court which provides notice to the employer and the insurance carrier, and then a certification order may issue if the insurer fails to demonstrate good cause.37 We stated this Rule applies when the issue is a failure of insurer to provide previously awarded medical benefits or monetary benefits.38 In Meeks the employee could proceed with the District Court bad-faith action "[b]ecause the certification requirements were met here."39 A certification order must state: (1) the identity or nature of the previously awarded benefit, (2) this previously awarded benefit was not provided as ordered, and (3) employer/insurer lacked good cause in failing to show why a certification order should not be granted.40
¶27 Plaintiff agreed with St. Paul that no certification order had been issued by the Workers' Compensation Court. Plaintiff argued no certification order from the Workers' Compensation Court was necessary because the insurer ultimately approved the nutritional consult. Plaintiff also argued the certification order applies where a workers' compensation benefit has been denied, and does not apply when a benefit has been delayed. In support of this statement plaintiff argues a Workers' Compensation Court has no jurisdiction to determine "unreasonable delay" in providing a benefit previously awarded. Plaintiff's view is that an employer/insurer should not be entitled to a hearing when an alleged benefit has been delayed and in such case an action on the contract for failing to provide reasonable and necessary medical care may be immediately brought in a District Court. We disagree.
¶28 Generally, a wrongful death action has constitutional protection by Okla. Const. Art. 23 § 7.41 In 1963 we explained Art. 23 § 7 had been amended by the people in 1950 in order to substitute a statutory exclusive workers' compensation remedy for the remedy provided by the general wrongful death statute.42 Twenty years later we explained an action under the Workers' Compensation Law was the exclusive remedy against an employer for deaths covered by that Act.43 A worker's allegation of not receiving a previously awarded benefit is adjudicated by the Workers' Compensation Court, and this adjudication is not limited to employer's denial of a benefit versus a delay by an employer or an insurer in providing a benefit. In Stewart v. Mercy Health Center, Inc.,44 we stated: "Our jurisprudence makes it clear that failure to obtain an order of the Workers' Compensation Court certifying the award as unpaid is a jurisdictional requirement to filing a bad faith claim for failure to pay benefits in the district court."45 This workers' compensation insurance carrier had its legal duty for providing payment adjudicated by an order of the Workers' Compensation Court. Plaintiff, like any other claimant seeking to enforce an award requiring an insurer to provide a benefit, "must first utilize the mechanism provided in section 42(A) of the Act and have the award certified for enforcement."46 The insurer has a workers' compensation statutory right to defend its conduct in the context of its good-cause burden.47 We have previously recognized a worker as a third-party beneficiary to the insurer's workers' compensation insurance contract may hold the insurer liable for a delay or failure to pay or provide for coverage as required by its policy utilizing the remedy provided by workers' compensation statutes.
¶29 Plaintiff attempts to go around this procedure we classified as a "jurisdictional requirement" in Stewart by characterizing the claim as a breach of contract and an action for damages resulting from an alleged wrongful death. The clear public policy expressed in the amended version of Art. 23 § 7 requires available workers' compensation remedies for any type of wrongful death claim to be pursued in the Workers' Compensation Court when required by the workers' compensation statutes.48
¶30 Plaintiff argues the scope of the remedies for a plaintiff's action against an insurer are different in a District Court from those available before the Workers' Compensation Court. A mere difference in a remedy does not demonstrate an unconstitutionally inadequate or insufficient remedy.49 Plaintiff also refers to Okla. Const Art. 5 § 4650 and alleges workers' compensation insurers receive different treatment than other insurers for the purpose of a wrongful death claim. This allegation fails to recognize that the people expressed their desire in Art. 23 § 7 for workers' compensation wrongful death related claims to be adjudicated within the workers' compensation jurisdictional boundaries.
III. Conclusion
¶31 Plaintiff's District Court action alleging breach of contract also included a request for consequential damages for the death of an individual based upon a workers' compensation insurance carrier's legal duties as previously determined by the Workers' Compensation Court. Plaintiff's District Court action against the workers' compensation carrier required plaintiff to use the exclusive remedy provided by the Workers' Compensation Act prior to seeking relief in District Court. The summary judgment granted by the District Court to St. Paul is affirmed.
¶32 COMBS, C.J.; GURICH, V.C.J.; and KAUGER, WINCHESTER, and EDMONDSON, JJ., concur.
¶33 WYRICK, J., concur in judgment.
¶34 COLBERT, REIF, JJ., dissent.