the employer of these restrictions. The essence of plaintiffs' claims is that Liberty Mutual tortiously instructed Mrs. Snyder to return to work, where her employer allegedly required her to perform work which exceeded the restrictions imposed by her physician, causing further injury to her back. Specifically, plaintiffs allege that Liberty Mutual was negligent in instructing her to return to work without taking adequate steps to verify that appropriate work was available and without investigating the experience of plaintiff's supervisor in evaluating physical work restrictions and in assigning appropriate duties.
The articulation of plaintiffs' legal theories in their response to the motion for summary judgment makes it clear that plaintiffs' claims focus not on the insurer's separate and independent relationship with Mrs. Snyder, but on her workplace injury. The heart of plaintiffs' claim is not the conduct which took place outside the workplace and independent of the employer's business operation, as in Tropiano. Rather, the plaintiffs' entire case rests on the premise that the insurer was not sufficiently involved in the workplace environment to protect Mrs. Snyder from injury on the job.
In their response to defendant's motion to dismiss, plaintiffs illustrated their position with the hypothetical case of an insurance agent who, while in a company car and on company business, negligently struck plaintiff while in the parking lot of the plaintiff's employer. Such an accident would clearly be unrelated to the defendant's status as the workmen's compensation carrier for plaintiff's employer. Similarly, if the insurance carrier had somehow induced a physician to return a patient to light duty work against the physician's best medical judgment, that conduct might be viewed as completely independent of the employer's business operation and the patient's status as an employee. However, neither of these hypotheticals fits the present case, which is rooted in the actions of the employer and the failure of the employer to make light duty work available.
Plaintiffs' complaint describes an insurance carrier acting solely in its role as a workmen's compensation carrier for Mrs. Snyder's employer. The alleged negligence of the insurance carrier is intimately intertwined with the employer's actions in the workplace setting.
As in Jadosh, the negligence of the carrier is alleged to be a direct cause of plaintiff's physical injury in the workplace on the theory that had there been proper "vocational rehabilitation," the second injury might never have occurred. Therefore, assuming without deciding that there was negligence in this case, Liberty Mutual is entitled to all of the employer's immunities and protections under the Workmen's Compensation Act. 77 Pa. S.A. § 501 (Purdon Supp. 1988); Kifer v. Liberty Mut. Ins. Co., 777 F.2d 1325, 1339 n.13 (8th Cir. 1985), Pirocchi v. Liberty Mutual Ins. Co., 365 F. Supp. 277, 280-81 (E.D. Pa. 1973); Jadosh, 442 Pa. 451, 275 A.2d 58.
Plaintiff has also asserted claims for negligent misrepresentation, fraud, and conspiracy. Arguably, these claims focus on the defendant's independent relationship with Mrs. Snyder, and not on the workplace injury. The record is devoid of any facts which would support a finding of a material misrepresentation. Therefore, these claims must fail. Similarly, the allegation that fraudulent misrepresentations were made with the intent to cause harmful or offensive bodily contact fails to survive this motion for summary judgment. Plaintiff has voluntarily withdrawn her claim of bad faith.
Therefore, I will grant the defendant's motion for summary judgment. An appropriate order is attached.
ORDER - June 9, 1988
Upon consideration of defendant's motion for summary judgment, plaintiffs' response, defendant's reply, plaintiffs' supplemental response, the memoranda and exhibits submitted by the parties, and for the reasons stated in the attached memorandum, IT IS ORDERED that the defendant's motion for summary judgment is GRANTED. Judgment will be entered in favor of the defendant and against the plaintiffs.
IT IS SO ORDERED.