Human v. Liberty Mutual Insurance

Mb. Justice Dyeb, delivered the opinion of the Court. This is a suit to recover benefits under our Workmen’s Compensation Statutes (T.C.A. sec. 50-901 et seq.) brought by the employee, a resident of Fentress County, in the Circuit Court of that County against the employer’s insurance carrier, a foreign corporation licensed — 337 — to do business in Tennessee. Tbe defendant insurance company bas no office, agency or resident director in Fentress County but does maintain an office or agency in Davidson County. Process was issued from tbe Circuit Court of Fentress County and served upon tbe defendant insurance company by service upon tbe Commissioner of Insurance and Banking under T.C.A. sec. 56-321. Upon seasonable objection, by defendant insurance company, tbe Circuit Court of Fentress County disclaimed jurisdiction and dismissed tbe petition. Employee, employed by Steiner-Liff Textile Waste Company, was injured in an accident at bis employer’s plant in Davidson County. At tbe time of tbis accident employee was temporarily in Davidson County and thereafter returned to tbe county of bis residence (Fentress County). Tbe defendant insurance company bad appointed tbe Commissioner of Insurance and Banking its agent for service of process. Tbe trial judge, in sustaining tbe plea in abatement, relied upon tbe cases of Chambers v. Sanford and Treadway, 154 Tenn. 134, 289 S.W. 533 (1926) and Flowers v. Aetna Casualty & Surety Co., 189 Tenn. 603, 212 S.W.2d 595 (1948). Tbe section of our Compensation Statutes at issue bere is T.C.A. sec. 50-1018. Tbe pertinent part of tbis statute is as follows: Tbe party filing tbe petition may, at bis option, instead of filing tbe same before tbe county judge or chairman, file tbe same as an original petition in either tbe circuit, criminal, or chancery court of the county in which petitioner resides or in which tbe alleged accident happens, * # *. Sec. 50-1018 — 338 — The right to file the petition in the county where petitioner resides or where the accident occurred is subject to the rules generally regulating venue and is subject to the condition the defendant be servable with process in the county where the petition is filed as in other civil cases. See Chambers v. Sanford and Treadway, supra; Flowers v. Aetna Casualty & Surety Co., supra and Brown v. Stone & Webster Eng. Co., 181 Tenn. 293, 181 S.W.2d 148 (1944). Under the holdings of these three cases venue in the case sub judice would, not be in Fen-tress County, since the defendant insurance company has no office, agency or resident director in that county. It is argued the Flowers and Brown cases are not controlling since they can be distinguished from the case sub judice. This difference arises from the fact in the Flowers and Brown cases both the employer and insurance carrier were sued, while in the case sub judice only the insurance carrier is sued. We do not agree this difference is controlling on the matter of venue. To so hold would result, in Workmen’s Compensation cases, one rule as to venue when only the insurance carrier is sued, while a somewhat different rule would apply when the employer corporation, alone or with its insurance carrier, is sued. The employee sub judice cites the case of T. H. Mastin & Co. et al v. Loveday, 202 Tenn. 589, 308 S.W.2d 385 (1957). In this case Mr. Justice Tomlinson stated the question for decision in the following language: So, the question in the case at bar is whether an injured employee may, under our Workmen’s Compensation Statute, maintain suit for his injuries in the county of his residence, the accident having happened in some — 339 — other county, against his employer’s insurer alone, that insurer being a non-resident of Tennessee, maintaining no office in Tennessee and with no resident agent designated in Tennessee on whom process could be served other than the State Commissioner of Insurance, upon whom process issued, and was served, from the Circuit Court of the employee’s residence. 202 Tenn. 591, 308 S.W.2d 386 There is a difference, which is controlling on the matter here at issue, between the Loveday case and the case sub judice. In the Loveday case the defendant had no office in Tennessee nor any designated resident agent on whom process could be served. In the case sub judice the defendant insurance Company has an office or agency in Davidson County where valid process may be served. The employee sub judice also cites the case of Insurance Company of North American v. Lane, 215 Tenn. 376, 386 S.W.2d 513 (1965). In this case the discussion on venue would be dictum, as is so noted in this opinion, since the defendant waived the defense of lack of venue by filing an answer. Even so the Court speaking through Special Justice Clement purposely made a thorough review of venue in Workmen’s Compensation cases. The employee cites the following statement from this case: It seems to us that all of the foregoing cases can best be reconciled by holding that workmen’s compensation cases must be brought (1) in the county of Petitioner’s residence, or (2) in the county in which the accident happened, if the defendant is subject to service of process in either of those counties, and if the insurance company alone is being sued, and service of process can be obtained on the Insurance Commissioner, venue is — 340 — restricted to the county of Petitioner’s residence or where the accident occurred; or, (3) that the petition may be filed in any county of the State where the Defendant maintains an office or agent for service of process only if the Defendant is not servable in either of the counties referred to aforesaid in keeping with the Workmen’s Compensation Act, T.C.A. sec. 50-1018. However, in any event where a material defendant is properly before the Court, counterpart process may issue as provided by law. 386 S.W.2d 520 The above statement from the Lane case has application to the case sub judice in the following manner. Under number (1) above the employee cannot file his petition in the county of his residence (Fentress) since the defendant insurance company is not subject to service of process in this county. Under number (2) above the •employee can file his petition in the county (Davidson) ■where the accident happened since the defendant insurance company is subject to service of process in this county. The language above, “and if the insurance company alone is being sued, and service of process can be obtained on the Insurance Commissioner,” applies in a situation similar to the Loveday case. That is where the insurance company has no office, agency or designated resident director in Tennessee subject to the service of process, which method is not open in the instant case since the defendant insurance company has an office or agency in Davidson County. The action of the trial judge in sustaining the plea in abatement filed by the defendant insurance company is affirmed. — 341 — Bubnett, Chief Justice, and Chatti», Justice, concur. Obeso», Justice, and William J. Hakbiso», Special Justice, dissent.