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Swain v. Aig Claims, Inc.

Court of Civil Appeals of Alabama

October 18, 2019

Orethaniel SWAIN
AIG CLAIMS, INC., The Insurance Company of the State of Pennsylvania, Sandra Thomas, Coventry Health Care Workers' Compensation, Inc., and Jackie Angeles.

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         Appeal from Jefferson Circuit Court (CV-18-902406).

         H.E. "Chip" Nix, Montgomery, for appellant.

          Michael H. Gregory of Dodson Gregory, LLP, Birmingham, for appellees AIG Claims, Inc., The Insurance Company of the State of Pennsylvania, and Sandra Thomas.

          Roy H. Liddell and Kevin A. Rogers of Wells Marble & Hurst, PLLC, Jackson, Mississippi, for appellees Coventry Health Care Workers' Compensation, Inc., and Jackie Angeles.

         HANSON, Judge.

         Orethaniel Swain appeals from a judgment of the Jefferson Circuit Court dismissing, pursuant to Rule 12(b)(6), Ala. R. Civ. P., his claims alleging intentional infliction of emotional distress, fraud, and conspiracy on the part of defendants AIG Claims, Inc. ("AIG"), The Insurance Company of the State of Pennsylvania ("ICSP"), Sandra Thomas, Coventry Health Care Workers' Compensation, Inc. ("Coventry"), and Jackie Angeles ("the defendants"). For the following reasons, we reverse the judgment of dismissal and remand the case for further proceedings.

         Facts and Procedural History

         On December 11, 2017, Swain was injured while working within the line and scope of his employment with Imerys USA, Inc. ("Imerys"). Swain claims to have suffered both physical and mental injuries, including post-traumatic stress disorder ("PTSD"), as a result of a workplace accident that, he says, was compensable under the Alabama Workers' Compensation Act, Ala. Code 1975, § 25-5-1 et seq. ("the Act"). On June 14, 2018, Swain commenced this action against AIG, Thomas, Coventry, and Angeles. Swain later amended his complaint to add ICSP as a defendant and to assert a claim for workers' compensation benefits against ICSP; as finally amended, the complaint asserted claims of intentional infliction of emotion distress, fraud, and conspiracy against all defendants. According to the complaint, ICSP provided workers' compensation coverage to Imerys; AIG was the workers' compensation claims administrator for ICSP; Thomas was the insurance adjuster

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employed by AIG assigned to Swain's claim; Coventry was a claims-management company retained by AIG; and Angeles, an employee of Coventry, was assigned as the "nurse case manager" for Swain's claim.

         Swain's allegations, as ultimately and finally set forth in his third amended complaint, may be summarized as follows: On December 11, 2017, Swain was injured at work when a large electrical circuit breaker exploded. Swain's injuries from the accident included physical injuries to his head, lungs, neck, back, and pelvic region. Swain also asserts that the accident caused him to suffer PTSD and anxiety. Swain was initially required to seek treatment through his personal doctors under his health-insurance coverage. On January 23, 2018, however, Angeles met with Swain regarding his workers' compensation claim. Angeles informed Swain that she would be serving as his nurse, would handle making all of his necessary doctor appointments, and would generally make sure he received the care he needed to treat his work-related injuries. According to the complaint, Angeles informed Swain that she was working on his behalf and not the insurance company's or his employer's behalf.

         The defendants sent Swain for treatment to Dr. Bruce Romeo. Dr. Romeo provided some treatment for Swain's respiratory problems and referred Swain to an eye doctor. Dr. Romeo, however, did not provide any treatment for Swain's other problems. Rather, Dr. Romeo ordered Swain back to work with restrictions. Swain contends that he was unable to do anything at work other than sit in a chair throughout the workday and that his working conditions exacerbated his mental-health issues. Swain became concerned that he was not receiving the treatment he needed, and on February 15, 2018, Swain retained legal counsel to assist him with his workers' compensation claim. Swain's counsel began sending letters and e-mails to the defendants with increasing urgency regarding Swain's mental and emotional state and requesting that Swain be seen by a neurologist or a neuropsychologist. The defendants were informed that Swain was suffering from obvious symptoms of PTSD, was under extreme distress, and was in need of treatment.

         On March 24, 2018, Swain was referred by the defendants to a neurologist. On April 24, 2018, the neurologist examined Swain and determined that he required treatment by a psychiatrist or a neuropsychiatrist. Swain's counsel made numerous attempts to secure approval from the defendants for the referral made by the neurologist by means of telephone and electronic correspondence, but his calls and e-mails were met with no response from the defendants. Swain's counsel informed the defendants in telephone messages and e-mails that Swain was suffering and urgently needed psychiatric or neuropsychiatric care.

         On May 21, 2018, Swain was again seen by Dr. Romeo. Despite being informed by Swain of his continuing symptoms and the neurologist's determination that Swain required psychiatric or neuropsychiatric treatment, Dr. Romeo placed Swain at maximum medical improvement ("MMI") and sent him back to work without restrictions. That same day, and allegedly as a result of the defendants' and Dr. Romeo's actions, Swain suffered a mental breakdown. He was treated at the emergency department of Brookwood Medical Center in Birmingham and was admitted to the behavioral-health-care unit of the hospital, where he was treated with a full regimen of psychiatric services for nine days. Swain alleges that he is now required to see a psychiatric specialist on an outpatient basis

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and that medical professionals have directed him not to return to work.

         Swain alleges that his mental breakdown and his ongoing need to receive specialized psychiatric treatment is the result of the defendants' handling of his workers' compensation claim. Swain contends that the defendants, by their conduct, are guilty of the intentional infliction of emotional distress or, as it is commonly referred to in our caselaw, the tort of outrage. See generally American Rd. Serv. Co. v. Inmon, 394 So.2d 361 (Ala. 1980) (recognizing existence of tort recovery for intentional infliction of emotional distress). With regard to that claim, he has alleged, among other things, that the defendants never intended to provide him with adequate treatment and that the defendants conspired with Dr. Romeo to have him erroneously placed at MMI and to have him over medicated so as to mask certain untreated conditions. Furthermore, Swain alleged:

"The [d]efendants utterly refused to send ... Swain to a specialist in psychiatry and denied him reasonable and necessary treatment so [his] psychiatric and physical injuries would become worse and cause him to become so sick and frustrated that he would agree to resolve his workers' compensation claim for less than the benefits to which he is entitled. [He] ... was caused by the [d]efendants' misconduct to suffer a mental breakdown and a new and more severe condition."

         As to his fraud claim, Swain alleges that Angeles affirmatively misrepresented (a) that she would be his nurse and working on his behalf; (b) that she would get him set up for treatment for all of his injuries and get him "sent to all the right doctors"; and (c) that she would talk to the doctors and "insurance company" (presumably AIG or ICSP) for the purpose of making sure he received care and that his care would proceed smoothly. Swain also alleges that the defendants suppressed the facts (a) that Angeles and Coventry were not working for his interests, but for the interests of AIG, ICSP, Thomas, and Imerys; (b) that Dr. Romeo was serving the interests of the defendants and not Swain; (c) that the goal of ICSP was to save money on Swain's claim irrespective of the extent of any treatment needed by Swain; (d) that the defendants did not intend to authorize treatment for psychiatric care; and (e) that the defendants intended to ensure Swain's return to full-duty work at the May 21, 2018, appointment with Dr. Romeo. Swain contends that, had he known that the defendants were going to persist in refusing to send him to a psychiatric specialist, "he would have found his own psychiatric specialist much sooner and he would have been properly treated, thereby preventing the new and more severe condition." Swain further alleges that the defendants conspired together, along with Dr. Romeo, to deny him the proper medical care needed to treat his injuries, particularly with regard to the PTSD and other mental injuries.

         After Swain had filed his complaint, which additionally sought an award of benefits from ICSP under the Act, each defendant moved, pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss Swain's tort claims. The defendants argued that Swain's claims were governed by the Act and that, pursuant to § 25-5-77(a), Ala. Code 1975, Swain could seek judicial vindication of his allegations that he had not been provided necessary medical treatment only after having sought a second opinion from an authorized physician selected from a panel of four physicians. The defendants also argued that, even accepting the facts in Swain's complaint as true, he could not satisfy the elements of fraud, the tort of outrage, or conspiracy.

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          On November 5, 2018, the trial court granted the motions to dismiss Swain's tort claims against all the defendants. On November 9, 2018, the trial court directed the entry of a final judgment of dismissal pursuant to Rule 54(b), Ala. R. Civ. P., in favor of Coventry and Angeles. On November 12, 2018, Swain moved to voluntarily dismiss his sole remaining claim — the claim for workers' compensation benefits against ICSP. That motion was granted on November 12, 2018. Swain timely filed his notice of appeal on December 12, 2018, and Swain's appeal was transferred to this court pursuant to § 12-2-7(6), Ala. Code 1975.

         Standard of Review

         The standard of review applicable to a ruling on a motion to dismiss for failure to state a claim is well settled:

"`On appeal, a dismissal is not entitled to a presumption of correctness. The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle her to relief. In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether she may possibly prevail. We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief.'"

Lloyd Noland Found., Inc. v. HealthSouth Corp., 979 So.2d 784, 791 (Ala. 2007) (quoting Nance v. Matthews, 622 So.2d 297, 299 (Ala. 1993)).[1]


         Swain contends that the trial court erred in dismissing his tort claims against the defendants. The trial court cited two primary rationales in dismissing Swain's tort claims. First, it concluded that § 25-5-77(a) barred the claims. Second, it held that Swain could not establish essential elements of each of his tort claims. We address those rationales, in turn.

         First, Swain contends that the trial court was wrong to dismiss his claims on the basis of § 25-5-77(a). The argument that § 25-5-77(a) precludes Swain's tort claims is best summarized by the trial court's order granting Coventry and Angeles's motion to dismiss. The trial court reasoned:

"Under Section 25-5-77(a) of the Alabama Code, the employer or workers['] compensation carrier has the right to select the treating physician, here Dr. Romeo. If the employee believes that needed treatment is not being provided by the treating physician, the employee may so advise the employer and the employee shall be entitled to select a new treating physician from a panel of four physicians selected by the employer..... Before seeking judicial vindication of what the employee deems necessary, the employee must first pursue a second opinion from an authorized panel of four physicians. According to [the] [c]omplaint and as acknowledged by his counsel at the hearing, [Swain] failed to pursue a second opinion as to his medical treatment needs from an authorized

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panel of four physicians pursuant to Section 25-5-77. Having failed to seek a second opinion from a panel of four physicians, [Swain] is not permitted to seek judicial vindication of his claim in court. For this reason, all of the [tort] claims in the ... [c]omplaint fail to state a claim upon which relief can be granted, and [the] [c]omplaint must be dismissed."

         The assertion that § 25-5-77(a) bars Swain's tort claims may be more broadly understood as an argument that Swain's claims fall under, and are governed by, the provisions of the Act. Indeed, if the Act applies to Swain's claims, his tort claims would be subject to the immunity and exclusive-remedy provisions of the Act, regardless of his compliance with the provisions of § 25-5-77(a). For example, § 25-5-53, Ala. Code 1975, provides, in part:

"The rights and remedies granted in this chapter [i.e., the Act] to an employee shall exclude all other rights and remedies of the employee ... at common law.... Except as provided in this chapter, no employer shall be held civilly liable for personal injury to or death of the employer's employee, for purposes of this chapter, whose injury or death is due to an accident or to an occupational disease while engaged in the service or business of the employer, the cause of which accident or occupational disease originates in the employment. In addition, immunity from civil liability for all causes of action except those based upon willful conduct shall also extend to the workers' compensation insurance carrier of the employer; to a person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer; [and] to an officer, director, agent, or employee of the carrier, person, firm, association, trust, fund, or corporation...."

See also § 25-5-11(a), Ala. Code 1975 ("[T]he injured employee ... may bring an action against any workers' compensation insurance carrier of the employer or any person, firm, association, trust, fund, or corporation responsible for servicing and payment of workers' compensation claims for the employer ... only for willful conduct which results in or proximately causes the injury or death."); § 25-5-1(4), Ala. Code 1975 (defining "employer" and noting that the employer's insurer is "entitled to the employer's rights, immunities, and remedies under" the Act, except as provided by § 25-5-11).[2] Here, the defendants clearly fall within the limited immunity protections granted by the Act. Thus, notwithstanding the defendants' specific reliance upon § 25-5-77(a), the proper inquiry is far simpler: Does the Act apply to Swain's tort claims? If so, those claims are barred by the exclusivity/immunity provisions of the Act.

         The seminal case regarding whether the Act bars tort claims arising from the handling of a workers' compensation claim is Lowman v. Piedmont Executive Shirt Manufacturing Co., 547 So.2d 90 (Ala. 1989). In Lowman, an employee was injured

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in the line and scope of her employment. The employer refused to process the employee's workers' compensation claim and instructed her to fill out a claim form stating that she had actually been injured at home. Later, a representative of the employer visited the employee in the hospital and threatened her with the responsibility for paying her large medical bills if she did not file her disability claim as stemming from an off-the-job injury. The employee brought tort claims against her employer, alleging fraud, conspiracy to defraud, and the tort of outrage. The trial court entered a summary judgment in favor of the employer on those tort claims.

         On appeal, our supreme court in Lowman concluded that the tort claims related to the employer's handling of the employee's workers' compensation claim were not barred by the exclusivity/immunity provisions of the Act. The court noted that "the exclusive remedy provisions were not designed to shield an employer or its insurer from the entire field of tort law"; rather, the court held, the exclusivity provisions of the Act "apply only to limit the liability of an employer or its insurer to the statutorily prescribed claims for job-related injuries," 547 So.2d at 92, and "the exclusivity provisions of the Act do not afford protection for injuries not caused by a job-related accident." Id. at 93. The court concluded that the employer's alleged post accident tortious conduct was not an "accident" compensable under the Act. The court reasoned that "[t]he relationship between the original accident, which led to [the employee]'s hospitalization, and the subsequent actions of [the employer], which are the subject matter of this action, is entirely too tenuous to bring the later activities under the coverage of [the law of] workmen's compensation." 547 So.2d at 93. Thus, our supreme court concluded that the provisions of the Act did not preclude the employee's claims of fraud, conspiracy, and the tort of outrage.

         Lowman is sometimes cited by our supreme court for the proposition that "[t]he exclusivity provisions of [the] Act do not bar tort-of-outrage or fraud actions by employees." Soti v. Lowe's Home Ctrs., Inc., 906 So.2d 916, 919 (Ala. 2005) (citing Lowman); see also , e.g., ITT Specialty Risk Servs., Inc. v. Barr, 842 So.2d 638, 646 (Ala. 2002) (quoting Hobbs v. Alabama Power Co., 775 So.2d 783, 786 (Ala. 2000), quoting in turn Lowman, 547 So.2d at 95) (noting that our supreme court "`has recognized that intentional tortious conduct, such as intentional fraud, "committed beyond the bounds of the employer's proper role," is actionable notwithstanding the exclusivity provisions of the [Act]'"); Gibson v. Southern Guar. Ins. Co., 623 So.2d 1065, 1066 (Ala. 1993) ("[T]he intentional tort of outrageous conduct and the tort of intentional fraud are not barred by the exclusivity provisions of the Act and can exist in a workers' compensation setting." (citing Lowman)). Such broad statements are, however, an oversimplification. Indeed, Lowman cautioned against discarding immunity merely because a plaintiff uses "`magic words'" like "outrageous" or "intentional" in a complaint, 547 So.2d at 94 (quoting 2A A. Larson, The Law of Workmen's Compensation § 68.34(c) (1988)), and our supreme court has since clarified that an intentional-tort claim does not circumvent the exclusivity/immunity provisions of the Act when the tortious conduct leads to a covered injury. In Ex parte Progress Rail Services Corp., 869 So.2d 459, 470 (Ala. 2003), our supreme court explained:

"[W]hile recognizing the immunity an employer enjoys with respect to an employee's on-the-job injury, the [Lowman] Court declared the principle ... that the exclusivity provisions do not apply if an employee's injury falls outside the coverage

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of the Act. As Lowman declared, `an employer is protected from tort liability only as to injuries expressly covered by the language of the Act.' 547 So.2d at 93. Therefore, the statement in Lowman that `intentional tortious conduct ... committed beyond the bounds of the employer's proper role is actionable,' 547 So.2d at 95 (emphasis supplied), does not support the different proposition ... that intentional tortious conduct committed within the bounds of the employer's proper role is actionable."

869 So.2d at 470; see also Ex parte Rock Wool Mfg. Co., 202 So.3d 669, 673 (Ala. 2016) ("Lowman is best characterized, not as an exception to the immunity granted by the exclusive-remedy provisions of the [Act], but rather as a factual scenario in which the exclusive-remedy provisions of the [Act] simply did not apply because there was no `accident' that brought the case under the coverage of the [Act]."); Hudson v. Renosol Seating, LLC, 73 So.3d 1267, 1273 (Ala.Civ.App. 2011) (recognizing that Progress Rail "stands for the proposition that when an employee's claim is otherwise within the scope of the Act, the exclusivity provisions cannot be avoided by the mere expedient of alleging that conduct of the employer giving rise to the claim was willful or intentional"). Thus, it is clear that Swain cannot avoid the application of the exclusivity/immunity provisions of the Act merely by pleading the existence of outrageous or fraudulent conduct on the part of the defendants. Rather, he must show that his injury falls outside the coverage of the Act.

         Determining whether an injury is covered by the Act, however, is not always a straightforward inquiry. Here, Swain has clearly alleged that he suffered compensable physical and mental injuries arising from his workplace accident, the recovery in tort for which is barred by the exclusivity/immunity provisions of the Act. He has also alleged "new" mental injuries that, he contends, were caused by the defendants' postaccident tortious conduct. Determining whether the allegedly new postaccident mental injuries are sufficiently related to the job-related physical injuries such that they are barred by the exclusivity/immunity provisions of the Act requires a proximate-cause analysis. Judge Moore has explained:

"Originally, the courts took a rather broad view of the causal relationship necessary to activate the exclusivity provisions. If the nonphysical injury would not have occurred but for the physical injury, the employee would be precluded from seeking a civil remedy for the non-physical tort. Eventually, however, the Supreme Court of Alabama [in Lowman] determined that the `but for' analysis could lead to preposterous results and held that a civil action for a nonphysical tort would lie when the relationship between the physical injury and the alleged tort was only tenuous at best. In other words, a claim for nonphysical injuries would be barred only if the non-physical injuries were proximately caused by the physical injuries. That final approach is most logical because the Act only covers psychic injuries proximately caused by a personal injury due to an accident arising out of and in the course of the employment."

2 Terry A. Moore, Alabama Workers' Compensation § 20:11 (2d ed. 2013) (emphasis added; footnotes omitted). Whether Swain's alleged new mental injuries can be considered proximately caused by his workplace accident, however, presents an issue of fact that is generally not appropriate for resolution on a Rule 12(b)(6) motion to dismiss. See Wilbanks v. United Refractories, Inc., 112 So.3d 472, 474 (Ala. 2012) (noting that the question of proximate

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cause is ordinarily one for the finder of fact).

         In this case, Swain has asserted claims on theories of intentional infliction of emotional distress, fraud, and conspiracy based on the defendants' postaccident handling of his workers' compensation claim. Swain has alleged that he has suffered mental anguish and emotional distress as a proximate result of the defendants' conduct, injuries that he contends are distinct from those he suffered as a result of his alleged on-the-job accident. On the authority of Lowman and its progeny, we must conclude that there is at least a possibility that Swain's tort claims are not barred by the provisions of the Act, such as § 25-5-77(a).

         We next turn to the alternative basis cited in the trial court's judgment — that Swain cannot establish necessary elements of each of his alleged tort claims. Initially, we note that one of the concerns addressed by Lowman was that, by recognizing that intentional tortious conduct could be actionable outside the aegis of the Act, claimants would seek to transform compensation claims into tort claims merely by invoking terms like "fraudulent" and "outrageous." Our supreme court, quoting a noted workers' compensation law treatise, cautioned:

"`It seems clear that a compensation claimant cannot transform a simple delay in payments into an actionable tort by merely invoking the magic words "fraudulent, deceitful and intentional" or "intentional infliction of emotional distress" or "outrageous" conduct in his complaint. The temptation to shatter the exclusiveness principle by reaching for the tort weapon whenever there is a delay in payments or a termination of treatment is all too obvious, and awareness of this possibility has undoubtedly been one reason for the reluctance of courts to recognize this tort except in cases of egregious cruelty or venality.'"

547 So.2d at 94 (quoting Larson, The Law of Workmen's Compensation § 68.34(c)). Thus, a higher burden of proof applies to alleged intentional-tort claims arising out the handling of a workers' compensation claim:

"Because, by this opinion, we recognize that intentional tortious conduct (i.e., intentional fraud) committed beyond the bounds of the employer's proper role is actionable, we deem it appropriate to address the standard of proof to be applied in determining whether a claim is due to be presented to a jury. In order to insure against borderline or frivolous claims, we believe, in view of the exclusivity clause, that a plaintiff, in order to go to the jury on a claim, must make a stronger showing than that required by the `substantial evidence rule' as it applies to the establishment of jury issues in regard to tort claims generally. See [Ala.] Code 1975, ยง 12-21-12. Therefore, we hold that in regard to a fraud claim against an employer, a fellow employee, or an employer's ...

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