*1 wаs deter- amount of The total $521,182. liability is sole- This
mined to be Webb, responsible he is
ly that Regardless of the in full.
satisfying it Fag- and the Brancucci
agreement between $521,- liability is fixed at
erbergs, Webb’s
182. denying Brancucci’s claim judgment
The judgment is affirmed. The indemnity is reversed.
against Dessert Seed that the is remanded with directions
cause against Des-
trial court dismiss the claims against modify judgment
sert Seed and judgment above. Such
Webb as reflected is affirmed.
as modified STERNBERG, JJ., concur.
PIERCE SAVIO, Plaintiff-Appellant, A.
William COMPANY,
TRAVELERS INSURANCE
Defendant-Appellee.
No. 82CA0070. Appeals, Court of
Div. I.
July 1983. Aug. 1983.
Rehearing Denied March 1984.
Certiorari Granted
layed payment of rehabilitation bene- fits which insurer knew there was no pay. reasonable basis not to He further proximate aas direct and re- delay, sult of this he suffered the of a loss job opportunity, present future loss had he earnings which he could have made *3 rehabilitation, necessary the men- obtained distress, attorneys incurred tal and that he pursuing fees in his claims. The first claim negli- that the for relief аsserted insurer’s gence constituted a tortious breach of its implied covenant of faith and fair in the of claims. The dealing settlement alleged second claim that this conduct con- a breach of contract. stituted grаnted The trial court the insurer’s mo- complaint, reasoning the tion to dismiss the tort and contract claims were that both by exclusivity provision the of- the barred Compensation Act. Colorado Workmen’s although there The court аlso ruled that to the insurer’s was no material issue as negligence, tort claim failed to state Savio’s it al- a claim under Colorado law because simple negligence rather leged a claim for than an intentional tоrt. Thomas, Ranson, Livingston, Cook & Jon appeal, principal In this as Thomas, Springs, plaintiff- for C. Compen sertions are that the Workmen’s appellant. recovery the Act does not bar for sation deMarino, Florey, R. Thomas J. James in of an insurance carrier tortious conduct Jr., Denver, defendant-appellee. for processing of a claim for workmen’s the Associates, P.C., James L. Gilbert James simple neg benefits and that compensation Arvada, Gilbert, curiae L. for amicus Colo- of care ligence appropriate is the standard Lawyer’s Ass’n. rado Trial an carrier’s applied to be to insurance agree claims. We with processing in the of STERNBERG, Judge. by the claim is not barred that the Savio Savio, appeals William A. plaintiff, The Act, and that Compensation Workmen’s dismissing his com- summary judgment appropriate stan simple negligence is the damages negli- the sought plaint which dard of cаre. defendant, employ- of the his gent conduct Non-Exclusivity Workmen’s insurer, Company, Travelers Insurance I. er’s of Compensation Act work- of his claim for processing in the reverse. compensation benefits. We men’s complied employer has When an Com electrician, provisions of the Workmen’s Savio, with the suffered a work-re- an Act, nor its employer neither the pensation filed a workmen’s com- injury. lated He liability for subject carrier arе to employer defend- insurance claim with pensation any to em personal injury or the death of ant, employer’s insurance carrier. The the Act, and except provided in the as liability ployee, the admitted оn behalf of actions, remedies rights, and However, in all causes employer. of or death on account of such negligently the insurer de- complaint that 552 employee employer procures an in injury any covered When
personal
8-42-102,
C.R.S.
against
are
Section
surance
under
the
abolished.
(1982 Cum.Supp.)
in
Compensation
1973
Workmen’s
Act from an
carrier,
subject
contract
surance
pre-
this statute
question
whether
Act.
provisions
One of these
against an insurance
cludes a tort claim
carrier
provisions is that
insurance
settling
negligent conduct
carrier for
directly
employee.
to the
shall be
liable
in Colorado.
claim has not been addressed
8-44-105, C.R.S.1973;
Section
Industrial
Court,
661 P.2d
Wright
In
v. District
Lopez,
Commission
Colo.
(Colo.1983)
malpractice claim
a medical
To the extent that an
paid physician was held
against
company
right
employee
Act because the
has
direct
of action
be barred
insurer,
place
against
outside the
he is in effect a third-
tortious conduct took
relationship. The
scope
employment
beneficiary
party
who is entitled to sue on
Act was intended
Couch,
court reasoned that the
Cyclopedia
the contract. 11 G.
*4
§
injuries which arise out of a risk
to cover
(M.
Insurance Law 2d
44:206
Rhodes
exposed
employee
the
is
or hazard to which
Rev.Vol.1982);
Couch, Cyclopedia
3 G.
of
job. Medical
perfоrmance
§
in the
of the
(R.
Insurance Law 23:30 Anderson Rev.
risk,
phy-
a
the
malpractice
being
such
Ed.1960). Consequently, we hold that Sav
liability.
sician was not immune from
See
may
the
io
assert
tort claim based on
Johnson, Inc.,
P.2d 517
Dorr v.
660
C.B.
insurance contract between the insurer and
(Colo.App.1983).
employer.
Using
reasoning,
the courts of
similar
jurisdictions have held that
their
other
II. Standard
Review
of
Compenatioon Acts do not ren-
Workmen’s
may
plaintiff
A
recover from an
der an insurance carrier immune from lia-
negligent
insurance carrier on a claim of
bility for tortious conduct. See Martin v.
performance
duty
repre
of the carrier’s
of
(1st
Co.,
the policy in excess of the loss scope employment rela within the limit, may the insured recover. hold, therefore, that a claim tionship. We in connection with the for tortious conduct In situations in an insurer is which handling compensation of a claim for is not insured, dealing directly with its Compensation precluded by the Workmen’s recognizes of the tort of bad faith breach Act. an insurance contract. This tort arises upon contract which Savio The insurance pay from the to insurer’s bad faith refusal duty good faith sues and from which the Group а valid claim. v. See Farmers dealing and fair arises was between the Trimble, supra.
employer
may
and the insurer.
none
duty
good
faith in
to act
theless assert the claim if his status is that
duty implied by
dealing with its insured is a
third-party beneficiary.
aof
See Montezu
insurance con
Heating
law as
covenant of the
Plumbing
Housing
ma
&
v.
Au
Inc.,
(Colo.App.1982).
Comprecare,
v.
thority,
553
(Colo.App.1983); Gruenberg
766
contravene its
faith
667 P.2d
and fair
Co.,
dealing.
agree.
9 Cal.3d
We do not
v. Aetna Insurance
(1973).
In-
Cal.Rptr.
procedure appear
The relevant rules of
deed,
an
when
obligations
the
insurer
Colo.Reg.
at 7 Code
1101-3. Rule III of
dealing
claims of the insured and
with
regulation,
relating to vocational reha-
parties
of third
dealing with claims
when
bilitation, obligates the
report
carrier to
duty.
merely
aspects
two
of the same
are
conclusions
the
to
Division on whether an
Accordingly,
Gruenberg, supra.
when the
employee will be able to return to work.
unreasonably and in bad faith with-
provides
Rule IV
that a vocational rehabili-
insured, it
payment
holds
of the claim of its
plan
tation
shall be developed by
quali-
subject
liability in tort. Gruenberg,
is
representative
fied rehabilitation
designat-
Whether the action amounts to bad
supra.
carrier,
by
ed
employer, or the Division
depends
faith
on whether the insurer failed
in consultation with the employee as soon
delayed payment
honor a claim or
with-
request
as the need is identified and a
doing
a rеasonable basis for
so.
out
made
employer
carrier or
or the
Sparks
Republic
v.
National
Insur-
Life
separate
Division. This
creates
rule
three
Co., 132 Ariz.
damages, Plaintiff-Appellee, of mal- by circumstances duct was attended v. constituting a wanton insult and ice and rights disregard of his VIGIL, and reckless Defendant-Appellant. Donnie E. feelings. No. 81CA0418. ruling deny- court’s Hе contests the trial Appeals, Colorado Court financial data ing discovery of the insurer’s establishing exemplary Div. II. purposes for damages. 4, Aug. 1983. defendant’s fi Evidence of a Rehearing Aug. Denied 1983. plaintiff if is discoverable nancial worth Denied March 1984. Certiorari prima proof facie of a “tria- demonstrates punitive damages. issue” on ble Court, P.2d 768
Leidholt v. District
(Colo.1980). of a claim for Establishment faith alone is not
breach of punitive to establish a claim
sufficient Group, Inc. v. Trim-
damages. Farmers
ble, having record of the supra. Not us, summary judgment befоre
hearing on ruled cor presume must the trial court
we
rectly may ruling not disturb this on Churchill, 44 Colo.
appeal. See Weeks ruling This
App. right preclude
does not Savio's to demon punitive on the dam
strate a triable issue *6 discovery. If
age question after additional established, discovery then
such issue is proper. financial data would be judgment dismissing the action is the cause is remanded with
reversed and complaint.
directions to reinstate Savio’s
BERMAN, J., concurs. *, J., dissents.
COYTE
COYTE, Judge, dissenting: not seek relief
I dissent. Plaintiff did of the Industrial Com-
within the confines allege nor did he that the insurer
mission manner. In
acted in a willful and wanton view,
my plaintiff failed to state a claim for properly and the trial court dismissed
relief complaint. * Const., VI, 5(3), Judge Appeals sitting by assign- § the Colo. 607(5), Art. Sec. 24-51- Retired Court of (1982 10). Repl.Vol. provisions C.R.S.1973 ment of the Chief Justice under