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Dunlevy v. Kemper Insurance Group

Decided: October 19, 1987.

NORMA J. DUNLEVY, PLAINTIFF-APPELLANT,
v.
KEMPER INSURANCE GROUP; AMERICAN MOTORISTS INSURANCE COMPANY, AN ILLINOIS CORPORATION; ROBERT VAN DEMARK; JOHN SIMONE AND CAROL HELLER; JOINTLY, SEVERALLY AND IN THE ALTERNATIVE, DEFENDANTS-RESPONDENTS



On appeal from Superior Court, Law Division, Camden County.

Pressler, Bilder and Muir, Jr. The opinion of the court was delivered by Muir, Jr., J.A.D.

Muir

Plaintiff appeals from a summary judgment dismissing her complaint seeking common law damages against her employer's workers' compensation carrier for wrongful termination of court-ordered temporary disability benefits. We affirm.

Plaintiff's complaint sought compensatory and punitive damages for emotional and mental anguish sustained when defendant

American Motorists Insurance Company (American) unilaterally terminated her temporary disability benefits required by a compensation court award. The complaint alleged American negligently, willfully, wantonly, fraudulently and with intentional bad faith refused to make payments. This, plaintiff alleged, caused her mental, emotional and "physical" anguish. Judge Davis, in granting defendants' motion for summary judgment, concluded N.J.S.A. 34:15-28.1 provided an exclusive remedy for American's failure to make the required payments. In the process, he distinguished, and found inapplicable, the holdings of Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161 (1985).

Plaintiff argues the statute neither expressly nor impliedly grants an exclusive remedy when there is, as here, an allegation of an intentional infliction of injury. Thus, the central issue is whether the statutory remedy of N.J.S.A. 34:15-28.1 is exclusive to all other forms of common law redress when a compensation carrier, with the alleged intent to inflict harm, wrongfully terminates temporary disability benefits. A secondary issue, necessary to resolve the first, is whether N.J.S.A. 34:15-28.1 applies to a compensation carrier's unilateral termination of court adjudicated temporary benefits. We answer both issues in the affirmative.

The following are the facts, as reflected by the documents properly before the trial court on the summary judgment, viewed most favorably to the plaintiff.

Plaintiff sustained injuries, physical and mental, in the course of her employment at Northeast Apparel, Inc. At that time, American provided workers compensation insurance to Northeast. On May 17, 1981, a compensation judge ordered that Northeast pay "temporary compensation pursuant to statutory guidelines." He also ordered Northeast to authorize Dr. Carl Berger as the treating psychiatrist with "[Berger] rendering periodic reports covering treatment of petitioner."

On January 3, 1985, Berger's reports brought about a meeting between the three individual defendants, claims personnel for American. The three defendants concluded Berger overtreated plaintiff and caused American undue expense.

On January 7, 1985, counsel for American, by letter, advised plaintiff she should appear for examination by a psychiatrist, Dr. Walden Hall. On February 1, 1985, the same counsel wrote to Hall asserting costs of Berger's psychiatric treatment were staggering and that plaintiff's psychiatric problems should be her own responsibility. On March 5, Hall examined plaintiff. In his report to American, he stated plaintiff had reached a plateau of recovery relative to her work-related psychiatric problems. He attributed the bulk of plaintiff's psychiatric problems to factors pre-existing the work-related injury.

On March 12, 1985, American advised plaintiff her payments for psychiatric treatment were terminated. On April 15, American further advised plaintiff that the ...


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