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Kuykendall v. Gulfstream Aerospace Technologies12/17/2002
with the refusal to pay a twice, court-ordered award for a bad faith claim such as punitive damages. Section 43 simply provides no vehicle through which to make the employee whole.
Under the facts presented, the majority has effectively left the employee with no satisfaction. The employee did attempt to get the employer's self-insured status suspended or revoked. The record is unclear why the request was denied, but it is undisputed that it was. Also, with only $1,317.89 left unpaid, it is doubtful that the employee could even afford to hire an attorney to pursue enforcement of the judgment -- to do so would most certainly cost more than the benefits and interest he might eventually be awarded. There is absolutely no reason to believe that the employer would be any more likely to respond to the district court's order than he was to those of the Workers' Compensation Court. Even with an enforceable judgment, the employee would most likely come away empty handed and with an attorneys' fee to pay.
Finally, the fact that an essentially administrative penalty is provided in the Workers' Compensation Act to encourage prompt payment of awards should not preclude suit for bad faith breach of the insurance contract. Attorneys, doctors, teachers and other professionals may be subject to discipline through administrative procedures. Nevertheless, provision for such professional discipline will not preclude malpractice actions. It should not preclude an action for bad faith breach of the workers' compensation insurance contract.
II. OKLAHOMA JURISPRUDENCE HAS LED EMPLOYEES TO REASONABLY EXPECT FAIR DEALING AND HAS PUT WORKERS' COMPENSATION INSURERS ON NOTICE THAT ACTING IN BAD FAITH MAY SUBJECT THE INSURER TO TORT DAMAGES.
Our most recent pronouncement concerning the possibility of bringing a bad faith action for post-award conduct in the workers' compensation arena, Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276, is factually distinguishable. Granted, in Fehring, we stated that there had been no unequivocable sanction of the viability of a tort suit against a workers' compensation insurer for the bad faith post-award conduct of failing to timely pay a workers' compensation award. Further, the majority relied upon 85 O.S. §2001 §42 as providing an enforcement mechanism for payment of workers' compensation awards. In so doing, we espoused no reason for recognizing a monetary sanction over that provided by the Workers' Compensation Act.
Nevertheless, Fehring did not involve either an insurance company or a self-insured employer's failure to pay a workers' compensation award. Rather, it determined that the State Insurance Fund was a state entity entitled to immunity under the Governmental Tort Claims Act, 51 O.S. 2001 §151 et seq. and that the employee could not avoid the immunity issue by recasting the cause as contractually based. In short, Fehring was most concerned with the immunity associated with a governmental agency -- not with whether a private insurer might be held liable for a bad faith breach of a workers' compensation insurance policy.
In Goodwin v. Old Republic Ins. Co., 1992 OK 34, 838 P.2d 431, we began by assuming that a workers' compensation bad faith insurer could be held liable for its bad faith refusal to pay a valid claim. We determined in Goodwin that no award could be sustained on the insurer's failure to pay the claim within eighteen days of the award. Nevertheless, several things in Goodwin were found to be indisputable. The opinion provides:
"It is undisputed that intentional acts are statutorily excluded under the Workers Compensation Act. It is undisputed that the bad faith refusal to pay an insu
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