author: OPALA, J.

text:
    2002 OK 92
    Joan F. HEDGES, now Phillips, Plaintiff-Appellant, v. Edward Lane HEDGES, Defendant-Appellee.
    No. 96,030.
    Supreme Court of Oklahoma.
    Nov. 26, 2002.
    Rehearing Denied Feb. 11, 2003.

      Barry K. Roberts, Norman, Oklahoma, James M. Levine, Oklahoma City, Oklahoma, for Appellant.
    Jon L. Hester, Seott A. Hester, Oklahoma City, Oklahoma, for Appellee.

      . Identified herein are only those counsel for the parties whose names appear on the appellate briefs.

   OPALA, J.

T1 Two issues are dispositive of this appeal: (a) Does Obligee-Mother's laches in prosecuting this postjudgment proceeding avail as an equitable defense against her quest for satisfaction of past-due and unpaid periodical installments of a child-support obligation? and (b) If laches is not available, is the record clear that the trial court would have entered the post-divorce order for Obli-gor-F ather solely on his statutory defense of agreement-based satisfaction of the entire obligation? We answer the first question in the negative. Because the trial court relied on both laches and "waiver' in denying Mother's relief quest and we cannot, on this record, determine whether it would have predicated its order solely on Mother's agreement-based relinquishment of rights (if it had ruled out laches as unavailable), the cause stands remanded for reconsideration of the latter defense alone-that which rests on the parties' oral agreement.

I

THE ANATOMY OF LITIGATION

12 Joan F. Hedges, now Joan F. Phillips (Mother), and Edward Lane Hedges (Father) were divorced on 13 April 1988. Three children were born of the marriage-JCH in 1978, BFH in 1977 and EMH in 1979. Father was directed to pay as child support a total of $684.00 per month. The children reached majority in 1991, 1995 and 1997. On 19 June 2000 Mother brought contempt proceedings against Father for his failure to pay child support. She alleged a total arrearage with interest of $84,992.08. Father interposed several affirmative defenses.

13 The trial court (a) determined that contempt was not an available enforcement remedy and dismissed the application for that relief, (b) recast the proceeding into one for satisfaction of past-due and unpaid child-support obligation, (c) found that an "agreement existed between the parties" which "operated to preclude the mother from collecting all the child support that was ordered," (d) concluded that because of the "mother's waiver by oral agreement" and the length of time that had passed since the children had reached the age of majority, laches and waiver precluded her from "recovering any arrearage which may have existed as a matter of law" and (e) denied Mother's quest for relief, resting its order "upon the equitable defenses of laches and wartver."

T4 Mother's appeal stands retained for this court's disposition.

II

THE ARGUMENTS ON APPEAL

15 Mother (appellant) argues on appeal that the trial court should have applied the teachings of Aguero v. Aguero and Cowan v. Cowan, two Court of Civil Appeals' opinions which pronounce that "equitable defenses" cannot be invoked to shield a parent from the legal consequences of child support's nonpayment. According to Mother, had the trial court based its decision on the Aguero and Cowan analyses of this court's jurisprudence in McNeal v. Robinson and Thrash v. Thrash, it would have rejected Father's equitable defenses against Mother's quest. Mother, on the other hand, claims that she bas an undefeated right to pursue past-due child support based on the explicit language of 43 O.S.Supp.1996 § 137. If the court should agree that equitable defenses do not shield Father from his obligation to pay delinquent child support, she argues that we must confine our inquiry to the single question of what amount remains unaffected by the time bar.

T6 Father counters that according to Thrash, "equitable defenses may be invoked to bar the recovery of delinquent child support payments." He points out that the teachings of Thrash have not been departed from and that anything to the contrary in Aguero and Cowan, though perhaps persua-give, has no precedential value. Father also notes that Swearingen v. Swearingen recognizes laches as an available defense in child-support enforcement proceedings. He argues that the equitable doctrines of "laches and waiver" should be upheld as a bar to Mother's recovery.

III

THE NATURE OF THIS POSTJUDGMENT PROCEEDING

17 This postjudgment proceeding in a divorce case was brought to ascertain the quantum of arrearage, i.e., adjudicated child support then due and owing, and to enforce the declared obligation's satisfaction. Father plead multiple defense theories, but appears to have later abandoned all but those tendered by the evidence adduced at trial -(a) laches and (b) an agreement-based reduction (or relinquishment) of a past-due, unpaid obligation. Laches is the only equitable defense implicated here. This is so because the latter defense, characterized by the parties and by the trial court as "waiver," is statutorily declared and its effectiveness stands limited to matured and unpaid installments either reduced or relinquished by "mutual agreement. We need not globally address ourselves today to the continued in-vocability of laches as an equitable defense in arrearage enforcement proceedings. This is so because, on this record, we hold that it does not avail in this case.

IV

THE TRIAL COURTS ALLOWANCE OF THE LACHES DEFENSE FOR DELAYED PROSECUTION OF MOTHERS QUEST IS CLEARLY CONTRARY TO THE WEIGHT OF THE EVIDENCE

T8 Laches is an equitable defense against the tardy prosecution of stale claims not yet barred by limitations. Before a claim will be considered barred by laches it must be shown that (a) there has been an unreasonable delay in the commencement of proceedings to enforce the claim and that (b) by reason of this delay the defendant has been materially prejudiced. The party invoking the doctrine's benefit as an affirmative defense has the burden of proof and persuasion. There is no bright-line rule for ascertaining when a claim becomes barred by laches or what delay is excusable. Application of the doctrine is discretionary and varies with the facts and cireumstances of each case. The defendant is required to show more than mere lapse of time. Equity must follow the law. It may not allow legal limitations to be abridged unless there are equitable considerations of a compelling nature which demonstrate prejudice-dealing delay.

T9 In support of his laches defense, Father argues that Mother's ten-year delay in prosecuting her quest has caused a substantial amount of interest to accrue ($32,082.58) for a total child-support arrears of $82,080. He urges that he is put at a severe disadvantage and will be irreparably damaged if he were ordered to satisfy the full amount of the arrearage that is pressed. At the time of trial his gross annual income was $80,800. He argues that because of his age (he is in his 50's), he will never earn enough money to pay off the obligation and the large amount of interest that Mother has allowed to accrue during the years of her inaction and failure to enforce the unpaid child-support obligation.

110 Child-support proceedings are of equitable cognizance. In suits of that class, a trial court's decree will be set aside only if it is found to be clearly contrary to the weight of the evidence or to some governing principle of equity jurisprudence.

111 The record here is grossly deficient. Father's failure to pay the decreed child support in reliance on the alleged oral agreement with Mother and the resulting accumulation of arrearage (with interest) do not, in contemplation of law, constitute the prejudice that is necessary to support the defense of laches. Although as a result of Mother's delay he now owes a substantial amount of accrued interest, his proof does not demonstrate that the delayed institution of enforcement proceedings placed him in a far more detrimental or disadvantaged position. It indicates only that he would mow owe more money.

{12 Because there has been no record showing of a material prejudice-dealing delay injurious to Father's interest, we hold that Mother's quest for enforcement of unpaid child-support obligation is not barred by the equitable doctrine of laches.

V

THE DEFENSE OF AN AGREEMENT-BASED REDUCTION (OR RELINQUISHMENT) OF CHILD-SUPPORT OBLIGATION IS STATUTORILY LIMITED TO MATURED (PAST-DUE) AND UNPAID | INSTALLMENTS

A.

Father's Agreement-based Defense

{13 Father argues that Mother "waived" her right to collect past-due and unpaid child support because of an oral agreement she made with him shortly after the divorce petition was filed but before the decree's entry. By its terms she is said to have agreed to accept fifty percent less than the amount reflected in the decree. According to his testimony Mother thought the amount to be decreed as child-support obligation was excessive. She allegedly agreed that if he would assume responsibility for all the bills and not ask for the return of any items she took out of the house she would accept as full satisfaction the reduced amount of child support. This agreement was not incorporated in the decree.

T14 Father also testified that after his post-decree bankruptcy, Mother informed him that the mortgage company and a finance company sought a judgment against her. According to Father, she then agreed to accept a lesser amount of child support in return for his keeping her whereabouts unknown to process servers. He testified that arrearages began accruing in August of 1989 and that he stopped paying child support in 1995 because his second child had reached the age of majority. Father claimed that Mother never pressed him for payment of any arrearages until she brought contempt proceedings in June of 2000, when the youngest child was 21 years old and the oldest 27. He argues Mother's silence and her inaction for such a long time show that she acquiesced in receiving lesser sums of support as well as evince that there was some understanding between the parties.

115 Mother disputes the existence of an oral agreement. She claims she neither agreed to reduced child support nor acquiesced (by silence or inaction) in accepting a lesser amount. According to Mother, she would occasionally contact Father about the reduced payments, but after her youngest son, EMH, reached the age of 19, she no longer tried to contact him about child support. She testified that several years before EMH's 19th birthday, she approached two lawyers about collecting the unpaid child support. - Faced with financial difficulties as well as problems between Father and her oldest son, Mother chose not to then commence enforcement proceedings.

B.

A Trial Judge's Unmemorialized Oral Remarks, Made at Any Stage of the Nisi Prius Proceedings, Constitute No Part of the Trial Court's Order or Findings

116 According to Mother, the trial court explicitly ruled there was mo agreement between the parties whose terms were certain enough to be enforceable. For this view she directs us to the trial judge's oral comments made during the 20 December 2000 hearing. She urges that because this oral "ruling" was not challenged by counter-appeal, it has become final and is now the settled law of the case.

{17 A trial judge's statements in announcing the post-decree order do not constitute her "findings of fact" and will not be considered to vary the order whose terms are to be measured solely by the recorded journal entry. None of the remarks Mother relies upon here can be made a basis for reversal. They were not incorporated into the journal entry of the proceedings that followed the oral ruling.

C.

The Statutory Scheme in Force at the Time of the 1988 Divorce Decree

118 The legislature recognized in 1987 that an agreement-based reduction (or relinquishment) of past-due and owing child-support installments is effective in law. According to the terms of 12 0.S.Supp. 1987 § 1277 (renumbered 43 O.S. O.S.Supp. 1989 § 112 ), the obligor-obligee parents by "mutual agreement" may relinquish the "payment of all or a portion of the past due amount." "Mutual agreement" within the meaning of the statute must address and be confined to that part of the child-support obligation which had accrued at the time of the agreement. The statute clearly transformed the pre-existing equitable defense of contract-based reduction (or relinquishment) of decreed child support into a legal defense and limited its effectiveness to the then-matured unpaid installments that were reduced (or relinquished) by mutual agreement. While the obligor-obligee parents can modify past-due and unpaid installments by agreement, future support is subject only to prospective modification by the court. In sum, the outer reach of the parties' mutual agreement is the reduction (or relinguishment) of matured installments, while the outer limit of statutory power confines the court's authority to reducing (or modifying) unmatured installments.

D.

The State of the Record That Addresses Father's Agreement-Based Defense

$19 We cannot assess, on this record, the legal effectiveness of the critical statutory agreement-based defense. This is so because on the dispositive point in question there is considerable evidentiary vacuity.

20 (1) We are unable to identify (with any degree of precision) the cireumstances the noncustodial parent relies on to fashion his agreement-based "binding understanding" with Mother. There is here but paltry proof to support either an agreement-based reduction (or relinquishment) of child-support obligation (by parol agreement) or the custodial parent's denial of the agreement's existence. Neither does the proof clearly reveal the date of the mutual agreement (or agreements), which is critical to ascertaining the amount of matured unpaid installments that stood relinquished by its terms.

[ 21 (2) The trial court based the denial of Mother's enforcement quest on her joint finding of laches and of waiver by agreement-based reduction of child support. Today's pronouncement-that laches does not avail-will not support the ruling's affir-mance on the latter defense. From this amorphous record we cannot tell whether, in the absence of laches, the so-called waiver defense would have been accepted by the trial court and made the basis for its ruling in Father's favor.

{22 There is another reason for remanding the cause instead of directing that the defense of contract-based reduction (or relinquishment) be rejected in postremand proceedings. Father's agreement-based defense was focused on equitable considerations rather than on the statutory nature of his defense. The statutory defense (based on the parties' "mutual agreement") was neither brought to the attention of, nor considered by, the trial court. The parties seem to have presented the case in total oblivion to the restrictive effect of a controlling statute on Father's waiver defense. Their lack of awareness is apparent not only from the transcript of the evidentiary proceedings, but also from the trial court's decision as well as from the briefs on appeal. Because Father did not know that the range of his agreement-based defense stood statutorily limited, it is only fair that on this dispositive point he should have the opportunity to revisit that defense in light of those restrictions and to bring his theory within the ambit of statutory terms. In these cireumstances, a ruling favoring Mother as a matter of law would be a less than equitable solution. Moreover, even if we could reject out-of-hand Father's agreement-based defense, there can be here no proceeding for enforced satisfaction of a judgment until the quantum due has been ascertained below and the impact of the time-bar issue resolved.

123 If the record is sufficient, this court will-in an appeal from an equity decision-render that decree which the chancellor should have entered. When reviewing an equity case, an appellate court cannot exercise first-instance cognizance by making original findings of fact. Whenever necessary findings are absent, the cause must be remanded with directions that they be made. Because we cannot anticipate what critical facts will be relied on for pressing Father's statutory agreement-based defense, the cause must be remanded for a full adversarial hearing on that issue alone.

VI

THE PROCEEDINGS ON REMAND

24 In postremand proceedings the trial court shall, among others, (1) reject Father's laches defense; (2) afford Father the opportunity to adduce proof of a "mutual agreement" with Mother concerning reduction or relinquishment of the then past-due and owing decreed child-support installments and the date it was made; and (8) if there be ascertained a past-due-and-owing portion of the child-support obligation, direct that it be satisfied as a judgment

T25 The proceedings to be conducted on remand shall stand confined to a full-scale inquiry into whether a statutory agreement-based defense (rested on a parol agreement or agreements and/or by acquiescence) can be found. Both parties are to be given the opportunity to develop the proof necessary to advance their respective positions. In its postremand consideration of the issue in contest the court should accord due importance to the subject matter of the mutual agreement. If it finds that a mutual agreement (or agreements) was made, it should establish its date for the purpose of ascertaining the quantum of matured unpaid installments that stood relinquished (or reduced) by its terms. If the agreement dealt only or partly with future installments it is unenforceable (in toto or pro tanto), but if it dealt with past-due and unpaid installments, it is within the range of Father's statutory defense.

126 Should the trial court rule that there was no viable statutory agreement-based reduction (or relinquishment) or that the parties' agreement (or agreements) does not reduce (or relinquish) all the overdue and unpaid installments, the trial court should consider the impact, if any, of post-decree (after-enacted) statutory changes that may legally affect the obligation sought to be satisfied.

VHI

SUMMARY

127 The trial court's allowance of laches defense against Mother's enforcement quest in contest is clearly contrary to the weight of the evidence. Absent a laches defense, we cannot say on this record whether an agreement-based defense alone would have led to the trial court's denial of Mother's enforcement quest. Because affirmance of Father's nisi prius victory (on the agreement-based defense) is not his due, the cause stands remanded for a full adversarial re-inquiry into the merits of this defense against Mother's demand. In postremand proceedings to follow this pronouncement, the trial court may consider whether there was an enforceable agreement-based reduction or relinquishment and assess the amount of the obligation still due, if any. In the event the court finds that there is an unpaid obligation to be enforced, it should give Mother a judgment for that amount.

128 The trial court's post-decree order is affirmed in part and reversed in part; cause remanded for further consideration to be consistent with today's pronouncement.

29 ALL JUSTICES CONCUR.

      . The parties and the trial court characterize Father's defense as a "waiver." We view the essence of that defense as invoking a statutory agreement-based reduction (or relinquishment) of the decreed child-support liability. See Part V(C) infra. For the pertinent provisions in force at the time of the decree's entry, see the terms of 12 O.S.Supp.1987 § 1277 (renumbered as 43 O.S.Supp.1989 § 112), infra note 33.

      . Today's opinion deals solely with a parent's right to enforce decreed child support against another parent after the children have reached majority. The child's own right to support recovery is not addressed. As the court made clear in State Dept. of Human Services ex rel. KA.G. v. T.D.G., 1993 OK 126, T 10, 861 P.2d 990, 994-95, no parent may, through settlement, agreement, or otherwise, compromise the child's right to enforce a support obligation against its parent.

      . An exhibit to Mother's application indicates that (a) the total amount of decreed child support was $82,080.00, (b) Father had paid $29,120.54, (c) interest of $32,032.58 had accumulated as of 15 June 2000, and (d) Father owes an accumulated balance of $84,992.08. At trial Mother's counsel moved to amend the exhibit by adding $2,713.37 in interest.

      . As defenses against Mother's satisfaction quest Father alleged the doctrines of laches or acquiescence, waiver, equal protection and due process invasions, equitable credit, miscomputation of arrearage and unclean hands.

      . The trial court correctly dismissed the contempt application. Once a child attains majority, the child-support obligation is no longer enforceable by contempt proceedings. Reynolds v. Reynolds, 1943 OK 133, ¶ 6, 137 P.2d 914, 916-17. Mother does not, on appeal, claim error in her contempt application's dismissal.

      . 1999 OK CIV APP 38, 976 P.2d 1088.

      . 2001 OK CIV APP 14, 19 P.3d 322.

      . - In Aguero, supra note 7, COCA pronounced that the interposition of "equitable defenses" in a child-support recovery-of-arrearage proceeding is narrowly limited to the facts and to the teachings of McNeal v. Robinson, 1981 OK 43, 628 P.2d 358. In McNeal the court held the equities demanded that the noncustodial father receive credit against the child-support arrearage for the time he cared for the child in his home. The court opined it would have been inequitable to grant the mother a child-support "arrearage judgment" even though she had impliedly consented to an informal departure from the decreed child-support regime by making no complaint against it for at least one-and-a-half years. Id., at 19, at 360. According to Aguero, nothing in post-McNeal - jurisprudence - indicates - that McNeal's recognition of alternative compliance with a support order has been, or should be, broadly expanded to include the concept of "noncompliance due to laches, estoppel, waiver." Id. at 124, at 1094. Based on the teachings of Aguero, the statement in Thrash v. Thrash, 1991 OK 32, 809 P.2d 665, that in certain circumstances "equitable defenses may be invoked to bar the recovery of delinquent child support payments" is limited to the facts and holding of McNeal. Aguero, supra note 7, at ¶ 23, at 1093.

      . Supra note 9.

      . Supra note 9.

      . The pertinent terms of 43 O0.S.Supp.1996 § 137 were:
      A. Any payment or installment of child support ordered pursuant to any order, judgment, or decree of the district court or administrative order of the Department of Human Services is, on and after the date it becomes past due, a judgment by operation of law. Such judgments for past due support shall:
      1. Have the full force and effect of any other judgment of this state, including the ability to be enforced by any method available under the laws of this state to enforce and collect money judgments; and
      wok ok
      B. Such judgments shall be subject to an action for collection only after the child support obligor has been given notice and opportunity for a court or administrative hearing to determine the amount that is past due; provided, that if the obligor has been given a hearing in some other proceeding to contest the amount past due, the obligor shall not be-entitled to another hearing to determine whether amounts are past due for the same time period.
      C. A child support judgment shall not become dormant for any purpose, except that it shall cease to be a lien upon real property five (5) years from the date it is filed of record with the county clerk in the county where the property is located, unless execution is issued and filed within five (5) years from the date the judgment is determined or last execution on the judgment is issued as required by law.
      1. Except as otherwise provided by court order, a judgment for past due child support shall be enforceable until paid in full.* * *
      (emphasis added).
      The 1998 and 2000 amendments do not affect this case because they were enacted after the last child-support payment became past-due and owing.

      . Father's brief quotes from Thrash, supra note 9 at 668.

      . 2000 OK CIV APP 92, 54 P.3d 120.

      . We assume from Father's failure (a) to tender below any proof to support his other plead defenses (see supra note 5) and (b) to press a counter-appeal for reinstatement of any or some of them that these came to be abandoned in the course of trial-court proceedings.

      . See supra note 2.

      . See the pertinent terms of 12 0.$.Supp.1987 § 1277 (renumbered 43 O.$.Supp.1989 § 112), infra note 33.

      . See Part V infra.

      . See Part IV infra. Moreover, the common-law tradition in appellate judicature eschews across-the-board pronouncements. Changes in the common law are done in an incremental fashion, on a case-by-case basis. See Myers v. Lashley, 2002 OK 14, 1 17, 44 P.3d 553, 561.

      . Smith v. Baptist Foundation of Oklahoma, 2002 OK 57, ¶ 9, 50 P.3d 1132, 1138; Sooner Federal Savings & Loan Ass'n v. Smoot, 1995 OK 31, ¶ 21, 894 P.2d 1082, 1090; Olansen v. Texaco, Inc., 1978 OK 139, 134, 587 P.2d 976, 985-86.

      . Sooner Federal Savings, supra note 20, at ¶ 21, at 1190; Marshall v. Amos, 1968 OK 86, ¶ 28, 442 P.2d 500, 506.

      . Phelan v. Roberts, 1938 OK 139, ¶ 14, 77 P.2d 9, 11; Nickel v. Janda, 1923 OK 944, ¶ 9, 242 P. 264, 266; Harn v. Smith, 1921 OK 328, ¶ 38, 204 P. 642, 651.

      . Olansen, supra note 20 at 985; Marshall, supra note 21 at ¶ 0 syl. 6, at 500.

      . Crumley v. Smith, 1964 OK 218, ¶ 20, 397 P.2d 119, 125.

      . Bailey v. Murdock, 1966 OK 185, ¶ 7, 421 P.2d 639, 643.

      . Thrash, supra note 9 at T9, at 668.

      . A reviewing court will not disturb a trial court's equity decision absent abused discretion or a finding that it is clearly contrary to the weight of the evidence. Johnson v. Johnson, 1983 OK 117, ¶ 15, 674 P.2d 539, 544; Kiddie v. Kiddie, 1977 OK 69, ¶ 3, 563 P.2d 139, 140-41; Peters v. Peters, 1975 OK 114, ¶ 9, 539 P.2d 26, 27.

      . According to Father, their joint obligations included a mortgage on the house and various bills totaling $11,000. Mother testified that their "joint bills" included a house mortgage, a $10,000 loan and a Sight-n-Sound bill ($800 or $900).

      . The record reveals that Father's bankruptcy petition was filed 9 December 1988.

      . Father later testified that he made his last child-support payment in January of 1997, a fact which was not reflected on Mother's exhibit.

      . - Mother relies on the trial judge's unmemorial-ized statements in the transcript made of the 20 December 2000 hearing on Mother's enforcement quest:
      "It appears that they did have an agreement that the consideration for not being exposed to creditors would be something in return, we don't know whether or not it was half the child support or what it was, since they're not clear on it. It appears that there's an agreed choice to not enforce due to some threat of the children, which may have been the choice of Ms. Phillips at the time, and considering the length of time in which she has chosen not to try to collect the child support, it appears that it would be inequitable for this court to now, since the children will not benefit from the child support, in that they are no longer minors, that it addresses the public policy of not enforcing child support for the sake of the children."
      (emphasis added).

      . Thompson v. Inman, 1971 OK 32, 482 P.2d 927, 937; Irwin v. Irwin, 1966 OK 146, ¶ 12, 416 P.2d 853, 857; Diem v. Diem, 1962 OK 124, ¶ 11, 372 P.2d 19, 23; Moree v. Moree, 1962 OK 95, ¶ 6, 371 P.2d 719, 722.

      . The terms of 12 O.S.Supp.1987 § 1277 (renumbered 43 0.$.Supp.1989 § 112) provided in pertinent part:
      "... If there are ... children [of the marriage], the court shall make provision for ... support, . and may modify or change any order in this respect ... provided that the amount of the periodic child support payment shall not be modified retroactively or payment of all of a portion of the past due amount waived, except by mutual agreement of the obligor and obli-gee ...."
      (emphasis supplied).
      The 1990, 1993, 1994, 1996 and 1998 (eff. 4 March 1998) amendments did not substantially change the quoted text. The 1998 (eff. 1 Nov. 1998), 1999, 2000, 2002 amendments do not affect this case because they were enacted after the last child-support payment became past-due and owing.

      . We interpret the statutory phrase "mutual agreement" to mean an agreement-based reduction (or relinquishment) of past-due and owing decreed benefits. The agreement may not affect any part of the obligation not yet due.

      . See the pertinent terms of 12 O.$.Supp.1987 § 1277 (renumbered 43 O.S.Supp.1989 § 112), supra note 33. Baker v. Bursch, 1962 OK 186, 117, 374 P.2d 31, 33-34; Greeson v. Greeson, 1953 OK 111, ¶ 9, 257 P.2d 276.
      We note that effective 1 November 1999 a "standard agreed order form" must be "used by all parents for any agreements submitted to the court for approval as a part of the informal review and adjustment process provided in Section 188 of this title." 43 § 120(B)(2) (emphasis added). This 1999 amendment has no effect on this case because it was enacted after the decree was entered 13 April 1988 and after the last child-support payment became past-due and owing.

      . On this record we can neither accept nor reject the argument that the tendered agreement-based defense is lability-defeating or lability-reducing. That is to be established by much clearer proof to be adduced on remand.

      . Larman v. Larman, 1999 OK 83, ¶ 18, 991 P.2d 536, 542-43.

      . Id.

      . Because in a post-remand retrial both parties may be able to secure proof sufficient to support their respective positions on whether an agreement-based defense should be allowed, the cause will be remanded for further nisi prius proceedings to afford them the opportunity to supply any deficiency in the record. Whenever an appellate court is of the view that other evidence may be produced on remand (or is unable to say that such evidence may not be secured), it will not direct that the suit be terminated by judgment but rather will order the cause (in which the nisi prius decree stands reversed) to be remanded for new trial. Guinn v. Church of Christ of Collins-ville, 1989 OK 8, ¶ 22, 775 P.2d 766, 775; Sherrill v. Sovereign Camp, W.O.W., 1938 OK 549, ¶¶ 12-13, 86 P.2d 295, 296.

      . See Part V(A), supra.

      . For the statutory scheme in force at the time of the decree's entry, see 12 O.S.Supp.1987 § 1291(A) and (C) (eff. 1 Oct. 1987)(renumbered 43 O.$.Supp.1989 § 137), whose terms (a) transform an order in equity (for the payment of continuing child support) into a judgment by operation of law as each installment falls due and remains unpaid and (b) provided that the judgment shall become dormant if not enforced within five years. For the 1996 amendment that extinguished the statute's dormancy provisions and made the past-due and owing child-support installments enforceable until paid in full, see 43 O.$.Supp.1996 § 137 (eff, 1 Nov. 1996), supra note 12. For the statute that eliminated the five-year statute of limitations for enforcement of unpaid child support, see 12 O.$.1981 § 95(6). For the 1996 amendment that extinguished the time bar upon the enforcement of past-due and unpaid - child-support installments, see 12 O0.$.$upp.1996 § 95(9). Each of these after-enacted provisions should be carefully considered in order to ascertain its effect, if any, on the obligation that is sought to be enforced, keeping in mind the rule that judgments are generally to be governed by the law in effect at the time they were entered. Evans v. Evans, 1993 OK 59, ¶¶ 10-11, 852 P.2d 145, 149.
      We express no opinion (a) on Father's argument that he was entitled to a reduction in child support as each child reached majority or (b) on Mother's response that automatic modifications are prohibited by the provisions of 43 O.S.Supp. 1994 § 118(B)(1) (enacted eff. 1 Sept. 1994). We cannot foretell, with any degree of accuracy, that these issues will arise again in postremand proceedings.


source: Caselaw Access Project

author: WINCHESTER, J. HODGES, J., KAUGER, J.,

license: Public Domain

text:
    2002 OK 96
    C.C. KUYKENDALL, Appellant, v. GULFSTREAM AEROSPACE TECHNOLOGIES, Appellee.
    No. 97,036.
    Supreme Court of Oklahoma.
    Dec. 17, 2002.
    Rehearing Denied April 1, 2003.

      Louis P. Falsetti, Brady, Schaulat & Fal-setti, Oklahoma City, OK, for Appellant.
    Gary C. Pierson, Shawn E. Harrell, Nathan L. Whatley, McAfee & Taft a Professional Corporation, Oklahoma City, OK, for Appellee.
   WINCHESTER, J.

11 The issue before us is whether Oklahoma will recognize a tort for bad faith against a self-insured employer who failed to pay for medicine prescribed for its employee as ordered by a Workers' Compensation Court. We decline to create a common law remedy when the legislature has provided a statutory remedy in the Workers' Compensation Act.

2 On August 14, 2001, the appellant, C.C. Kuykendall, filed a petition in district court naming Gulfstream Aerospace Technologies, the appellee, as defendant. The petition alleged that Kuykendall filed pleadings in Workers' Compensation Court to reopen a prior court order for a change of condition, the worsening of a neck injury he had suffered. An order for permanent partial disability was filed on September 8, 2000, which was appealed to the Workers' Compensation Court En Bane. That court affirmed the trial court's order on November 29, 2000. The trial court's order provided that Gulfstream, a self-insured employer, should provide the claimant, Kuykendall, with continuing pre-seription medication from Dr. Steve Drabek to maintain Kuykendall's condition.

13 Kuykendall forwarded these prescription receipts to Gulfstream for reimbursement in January 2001. The total amount for the prescriptions was $2,629.78. Without an explanation, Gulfstream forwarded a check to Kuykendall for $1,811.89, and refused to pay the balance of the preseriptions, all of which were prescribed by Dr. Drabek. On January 18, 2001, Kuykendall filed pleadings in Workers' Compensation Court to revoke Gulf-stream's "own risk" permit. The court denied Kuykendall's request for revocation, but required Gulfstream to pay for the treatment. However, Gulfstream has continued to refuse to pay the balance for the prescriptions. Kuykendall subsequently filed his petition in district court.

T4 The petition alleged that Gulfstream's actions were in bad faith and malicious, and that its disregard for the orders of the Workers' Compensation Court were without reason or justification. The petition asked for the balance for the prescriptions in the amount of $1,817.89, plus punitive damages. Gulfstream answered with a motion to dismiss claiming that the district court did not have subject matter jurisdiction, and that Kuykendall failed to state a claim against Gulfstream upon which relief could be granted. After Kuykendall responded, the trial court dismissed the case with prejudice. The court found that Kuykendall had failed to state a claim upon which relief could be granted because no viable cause of action existed for bad faith post-award conduct arising out of a workers' compensation case in Oklahoma. The Court of Civil Appeals reversed and remanded. We previously granted certiorari.

15 Gulfstream, in its petition for writ of certiorari, argues that the Court of Civil Appeals' opinion has created a new tort for bad faith post-award conduct in a workers' compensation case despite decisions by this Court to the contrary. Gulfstream cites three cases, Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276, Anderson v. U.S. Fidelty and Guar. Co., 1997 OK 124, 948 P.2d 1216, and Goodwin v. Old Republic Ins. Co., 1992 OK 34, 828 P.2d 481. Gulfstream quotes Fehring: "To date this Court has not unequivocally sanctioned 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 claim." Fehring, 2001 OK 11, ¶ 26, 19 P.3d at 284. To support that observation this Court cited the specially concurring and dissenting opinions in Anderson.

16 Kuykendall answers that the issue in Fehring was narrow. In that case a claimant and his wife sued the State Insurance Fund (SIF) for bad faith failure to pay a workers' compensation award. Their petition alleged that the Workers - Compensation Court awarded Fehring permanent partial disability benefits. After the order became final, the benefits were not timely paid by the SIF. Another Workers' Compensation Court order issued because the SIF had not paid. After that order became final, SIF still refused to pay. The Court found that the Governmental Tort Claims Act (GTCA) protected the SIF against a bad faith cause of action. For an agency to be liable under the GTCA, the plaintiff must prove that the conduct of the agency's employee was within the employee's seope of employment. To be within the seope of employment, the employee's actions must be in good faith. If an agency's employee acted in bad faith, the employee would not be acting within the seope of employment and the agency would be immune under the act. Kuykendall concludes that Fehring did not exclude future recognition of a cause of action for bad faith post-award conduct. He urges that Fehring assumed such a cause of action existed, as had all prior decisions of this Court.

T7 The Goodwin and Anderson cases, which are cited in Fehring, discuss bad faith refusal to pay an employee's workers' compensation award. Both cases assume for the purpose of resolving the issues that a work-erg compensation insurance company may be subjected to liability in tort for willful, malicious, and bad faith refusal to pay. Goodwin, 1992 OK 34, ¶ 1, 828 P.2d at 431-432, Anderson, 1997 OK 124, 16, 948 P.2d at 1217. The discussion of bad faith in Goodwin led to a conclusion in Whitson v. Oklahoma Farmers Union Mut. Ins. Co., 1995 OK 4, ¶ 8, 889 P.2d 285, 287, that Goodwin actually recognized an insurer's duty of good faith and fair dealing to the injured workers' compensation claimant. - Fehring corrected that conclusion and observed that Goodwin merely assumed such a claim existed. (Goodwin, 1992 OK 34, ¶¶ 1, 15, 17, 828 P.2d at 431-432, 485, 486; Fehring, 2001 OK 11, ¶ 26, n. 20, 19 P.3d at 284, n. 20.

18 No Oklahoma case holds that a workers' compensation insurer has a duty of good faith in paying a workers' compensation award, the violation of which is a tort. A holding of a case declares the conclusion of law reached by the court as to the legal effect of the facts disclosed. Black's Law Dictionary 658, (5th ed.1979). "Holding" may be contrasted with obiter dictum, which is a statement in a decision that is unnecessary to support the conclusion reached. American Trailers v. Walker, 1974 OK 89, ¶ 18, 526 P.2d 1150, 1154. Ratio decidendi is the ground or reason of the decision and refers to a statement in a decision necessary to support the holding. Black's Law Dictionary 1185, (5th ed.1979). In Goodwin and Anderson, assumptions concerning a bad faith tort were made for the purpose of deciding the issues in the two workers' compensation cases, but no conclusion of law was reached regarding such a tort.

19 Even if this Court were to recognize an insurer's duty to exercise good faith and fair dealing toward a worker's compensation claimant, that duty would not apply equally to a self-insured employer. The cited cases draw a distinction between workers' compensation insurers and self-insured employers. In Goodwin the Court cited the exelusivity provision, now codified as 12 0.8. 2001, § 12, which provides in pertinent part: "The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer ... at common law or otherwise, for such injury, loss of services, or death ...." (Emphasis added.) The Court then contrasted the potential liability of an insurer with the liability of an employer and commented, "It should be noted that the exclusivity provision of the statute relates to the liability of the employer-not that of the insurer." (Emphasis in original.) Goodwin, 1992 OK 34, ¶ 5, 828 P.2d at 482. Goodwin continues, "Section 12 provides an exclusive remedy for one type of claim-work-related injuries i.e., the liability of the employer." Goodwin, 1992 OK 34, ¶ 12, 828 P.2d at 434. The case notes that a bad faith refusal to pay an insurance contract under its terms may be an intentional tort, but it will not extend to the employer, which is in a subclass entitled to protection. Goodwin, 1992 OK 34, ¶ 15, n. 17, 828 P.2d at 435, n. 17.

10 In Whitson, the claimant argued that his employer, which happened to be an insurance company, but not the carrier for workers' compensation, had a duty of good faith toward him tantamount to that owed by an insurance company to its insured. After citing the exclusivity provision, the Court referred to Goodwin and concluded that "an employer's liability to an injured worker is limited to that created by § 12 of the Workers' Compensation Act. Whitson, 1995 OK 4, ¶ 8, 889 P.2d at 287.

111 Harter Concrete Products v. Harris, 1979 OK 38, 592 P.2d 526, describes the purpose and effect of the Workers' Compensation statutes. These statutes were engeted to provide a substitute remedy to an employee for accidental injuries received during covered employment. The burden of proving negligence was removed. In exchange, the employer is protected from any other liability to the employee. Harter held that this protection extended to all Hability, whether direct or indirect, resulting from the employee's injuries. Harter, 1979 OK 38, ¶ 7, 592 P.2d at 528. Accordingly, the self-insured employer's liability is limited to that provided by the Workers' Compensation statutes.:

112 The Workers' Compensation Act provides remedies available to employees when their employers or insurance companies violate a provision. Section 42 sets forth the sole remedy available when there is a failure to pay compensation due under the terms of an award. Lum v. Lee Way Motor Freight, 1987 OK 112, ¶ 28, 757 P.2d 810, 818. Title 85 0.98.2001, § 42(A) provides in pertinent part:

If payment of compensation or an installment payment of compensation due under the terms of an award ... is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefor, the Court may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award ... shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction.... Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.

{13 This statute provides the remedy for an employee to collect from the self-insured employer who refuses to pay the amount awarded by the workers' compensation court. When a certified copy of the award is filed in the offices of the court clerk of a county, and entered on the judgment docket, that certified unpaid award effectively becomes and is enforceable as a district court judgment. Enforcement proceedings may then be conducted in the district courts. Bishop v. Wilson Quality Homes, 1999 OK 60, 16, 986 P.2d 512, 514. The exclusivity statute, 12 0.8.2001, § 12, supports our conclusion that no common law remedy is available against an employer which is self-insured even though he fails to pay an award of the workers' compensation court. The wronged employee must follow the remedy provided by 85 0.$.2001, § 42(A).

CERTIORARI PREVIOUSLY GRANTED; OPINION OF THE COURT OF CIVIL APPEALS VACATED; JUDGMENT OF THE DISTRICT COURT AFFIRMED.

14 HARGRAVE, C.J., LAVENDER, OPALA, SUMMERS, WINCHESTER, JJ., concur.

15 WATT, V.C.J., HODGES, KAUGER, BOUDREAU, JJ., dissent.

HODGES, J.,

dissenting, with whom WATT, V.C.J. and BOUDREAU, J. join.

T1 In 1915, Oklahoma workers and employers became parties to an "industrial bargain" imposed by statute. Employers gave up their common law defenses of contributory negligevice, assumption of risk, and the fellow servant doctrine. They received fixed no-fault liability. Employees gave up their common law right to sue in district court. In return they received wage benefits and medical care as their exclusive remedy under the Workers' Compensation Act.

T2 The cost of these benefits is placed on the consumer through the medium of insurance, the premium cost of which is passed on in the price of products or services An employer may purchase workers' compensation insurance or elect, under certain criteria, to become self-insured. Insurers, or employers functioning as an insurer, have never been parties to the industrial bargain.

T3 Today, this Court extends the exclusive remedy provisions of the Workers' Compensation Act to insurers, thus relieving them of their common law duty to deal fairly and act in good faith, This gift to workers' compensation insurers is not authorized by the Act, nor is it supported by precedent. To the contrary this Court has noted that "the exclusivity provision of the statute relates to the liability of the employer-not that of the insurer." - Goodwin v. Old Republic Insurance Co., 828 P.2d 431, 432 (Okla.1992).

T4 Section 42(A), as this Court held in Lum v. Lee Way Motor Freight, 757 P.2d 810, 818 (Okla.1987), "sets forth the sole remedy available when there is a failure to pay compensation due under the terms of an award." Lum, however, did not involve an insurer. It enforced a guaranty of a parent corporation for payment of the workers' compensation awards of the employees of its defunct trucking company. Nothing in Lum or in any of the decisions relied upon by the majority addressed the issue of whether the industrial bargain extends to workers' compensation insurers or employers acting as the functional equivalent of an insurer. See Whitson v. Oklahoma Farmers Union Mut. Ins. Co., 889 P.2d 285, 287 (Okla.1995) (exelu-sivity provision "applies expressly to employers, although not to workers' compensation carriers"); Harter Concrete Prods. v. Harris, 592 P.2d 526, 528, (Okla.1979) (employer could not be joined as third party in workers' personal injury action against product manufacture in view of exclusive remedy provision). There is simply no reason that a workers' compensation insurer or its fune-tional equivalent should be exempt from the duty of good faith and fair dealing imposed on every other insurer.

T5 Today's extension of the industrial bargain to insurers is legally unjustified for another reason. An insurer's refusal to deal fairly and act in good faith is an intentional tort. Buzzard v. Farmers Ins. Co., Inc., 824 P.2d 1105, 1109 (Okla.1991). As such, it lies wholly outside the no-fault mechanism of workers' compensation.

16 Workers' compensation was constructed to address "accidental personal injury." Okla. Stat. tit. 85, § 11 (2001). That jurisdictional element of a workers' compensation claim is missing when an insurer or a self-insured employer willfully inflicts injury by refusing to pay an award out of animosity towards the claimant or the Workers' Compensation Court. In such a situation, the injured worker should be allowed to seek redress for the insurer's conduct in the district court.

T7 This Court has never indicated that a self-insured employer is entitled to the benefit of the Act's exclusive remedy provision when, while acting as an insurer, it wrongfully and intentionally refuses to pay a workers' compensation award. I would hold that a workers' compensation insurer or a self-insured employer standing in an insurer's shoes faces liability for its bad faith refusal to pay the for medical care or wage benefits provided in a workers' compensation award.

KAUGER, J.,

with whom Watt, V.C.J., Hodges and Boudreau, JJ. join, dissenting:

11 A single, first impression question of law is presented: whether a self-insured employer is shielded by the Workers' Compensation Act, 85 0.8.2001 § 1, et seq. from tort liability for the intentional, bad faith refusal to pay post-award benefits. Although I express no opinion on whether the facts in this cause would support such an award, I dissent from the majority's determination that the Workers' Compensation Act precludes recovery for the intentional, tortious, post-award acts of a self-insured employer. The majority's position is not supported by legislative mandate, our opinions considering the nature of bad faith actions in the workers' compensation arena or well reasoned extant jurisprudence.

FACTS

12 While in the employ of the defendant/appellee, Gulfstream Aerospace Technologies (employer), the plaintiff/appellee, C.C. Kuykendall (employee), suffered a work-related injury. The employer is self insured for purposes of guaranteeing payment of its workers' compensation obligations.

T3 On September 8, 2001, the employee was successful in having the workers' compensation cause reopened based on a change in condition for the worse. The employer appealed to the Workers' Compensation Court en bane. In an order dated November 29, 2000, the Court en bane affirmed the trial court, specifically ordering the employer to provide the employee with continuing pre-seription medication. The following January, the employee forwarded prescription receipts to his employer totaling $2,629.78. Although the employer reimbursed expenditures of $1,311.89, it refused to pay the balance of $1,817.89. Thereafter, the employee tried, but was unsuccessful, in having the employer's own-risk permit revoked. Nevertheless, the Workers' Compensation Court determined that the employee's medical treatment was reasonable and necessary. Further, in a second order dated April 30, 2001, the employer was again directed to provide treatment. The employer ignored the second directive to pay.

T4 Almost a year after the employer was initially ordered to pay the costs of the employee's prescription drugs and five months after the second order for reimbursement, the employee filed this cause in district court. The employee sought actual and punitive damages for his employer's bad faith, malicious, post-award conduct in refusing to pay for the court-ordered prescription drugs.

15 On October 28, 2001, the trial court granted the employer's motion to dismiss with prejudice finding that Oklahoma did not recognize a bad faith cause of action for post-award conduct arising from a workers' compensation case. Determining that the employee had stated a valid claim for bad faith post-award conduct, the Court of Civil Appeals reversed and remanded the cause on February 15, 2002. We granted certiorari review on April 22, 2002.

T6 THE MAJORITY'S REFUSAL TO RECOGNIZE A CAUSE OF ACTION FOR THE POST-AWARD - BAD FAITH BREACH OF A WORKERS' COMPENSATION INSURER IS UNSUPPORTED BY LEGISLATIVE MANDATE, OUR OPINIONS CONSIDERING THE NATURE OF BAD FAITH ACTIONS IN THE WORKERS' COMPENSATION ARENA OR WELL-REASONED EXTANT JURISPRUDENCE.

T7 The employer argues that Oklahoma jurisprudence will not support the recognition of a bad faith claim for post-award conduct in the workers' compensation arena. Further, the employer asserts that 85 0.8. 2001 § 11, commonly referred to as the exclusivity provision, shields it from all liability not imposed under the workers' compensation statutes. Finally, the employer insists that 85 0.8.2001 § 42 provides the exclusive mechanism for enforcement of an employee's workers' compensation award. In contrast, the employee contends that the Workers' Compensation Act does not prohibit his recovery and that our cases support the recognition of a bad faith cause of action for a self-insured employer's post-award conduct.

{8 Here, the employer is wearing two hats, that of employer and that of an insurer. The insurer's hat was substituted for the employer's hat once the Workers' Compensation Court ordered payment of prescription expenses. The same protections accorded to an employer under the Workers Compensation Act do not extend to that of an insurer. The liability of self-insured or own-risk employers is analogous to that of insurance carriers. The self-insured or own-risk employer voluntarily assumes the status as insurer. There simply is no distinction between a workers' compensation insurance carrier and an employer who voluntarily assumes self-insured status. Therefore, if an insurer may be sued for bad faith, a similar cause of action will lie against the self-insured employer.

I.

T9 A. AN INJURED EMPLOYEE MAY MAINTAIN A COMMON LAW AC TION FOR DAMAGES IF THE EMPLOYER FAILS TO SECURE THE PAYMENT OF - COMPENSATION FOR THE INJURIES.

110 Title 85 0.8.2001 § 61 requires an employer to secure compensation to employees for work-related injuries. Employers who fail to secure compensation are subject to the penalty provisions of § 12 of the Workers Compensation Act allowing an employee or a representative to maintain an action in district court for work-related injuries. Title 12 0.98.2001 § 12 provides in pertinent part:

. If an employer has failed to secure the payment of compensation for his injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee ..."

The legislatively-imposed penalties are severe. The employer is striped of the defenses of negligence of a fellow servant, assumption of the risk and the employee's contributory negligence.

T11 Equally onerous is the legislatively-prescribed penalty for an insurer's intentional, knowing or wilful violation of other provisions of the Workers' Compensation Act, associated rules or regulations-suspension or revocation of the insurer's license or authority to do business in Oklahoma. Title 85 00.98.2001 $ 42(B) provides:

"If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers' Compensation Act or any published rules or regulations promulgated thereunder, the Insurance Commissioner, on the request of a judge of the Court or the Administrator, shall suspend or revoke the license or authority of such insurance carrier to do a compensation business in this state."

12 Coverage or the ability to pay are not at issue here, and there is no question that the self-insured employer provided some workers' compensation benefits. The dispos-itive issue is whether the employer secured payment of compensation for its employee's injuries. The employee has not been paid for expenses which twice have been determined by the Workers' Compensation Court to be for a work-related injury. The employer has ignored two orders issued from the Workers' Compensation Court.

T 13 The common law remains in full force in Oklahoma, unless a statute explicitly provides to the contrary. Both 12 0.8.2001 § 2 and 25 0.98.2001 § 29 require that statutes in derogation of the common law be liberally construed with a view to effecting their objects and to promoting justice. This Court may not preclude an injured person from pursuing the remedy of a recognized wrong in the absence of contrary legislative intent. The Legislature has not barred an employee's bad faith action. Rather, it has specifically effectuated its intent that employers who fail to provide coverage will be subject to suit in district court.

{14 This Court should not-in the presence of statutory language which contemplates that employers who do not secure workers' compensation benefits are subject to suit in district court and in the absence of the expressed legislative intent to deprive an employee of the bad faith cause of action-bar a post-award suit for the intentional tort in district court. It is difficult to fathom how the employee-who remains unpaid for court-ordered benefits-is in a position much improved from the employee who finds his employer has obtained no coverage. In both instances, the employee may well remain unpaid for a work-related injury.

{15 B. INTENTIONAL ACTS OF BAD FAITH DO NOT FALL WITHIN THE RUBRIC OF "ACCIDENTAL" INJURIES COMPENSABLE UNDER THE WORKERS' COMPENSATION ACT.

16 Section 11 of the Workers' Compensation Act makes employers liable for scheduled compensation for the disability or death of an employee resulting from an "accidental personal injury." - As defined, "injury or personal injury" means "only accidental injuries." The exclusivity provision, 85 0.8. 2001 § 12, provides that the liability pre-seribed in § 11-liability for accidental injury-shall be exclusive and in place of all other employer liability.

[ 17 Recovery for damages associated with the intentional tort of bad faith simply do not fall within the exclusive jurisdiction of the Workers' Compensation Court. Such provisions are irrelevant to causes of action not encompassed within the statutory scheme. No one asserts that had the employer intentionally knifed the employee in the back, the employee would be entitled to sue in district court for damages associated with an intentional assault and battery. Here, the employer has intentionally stabbed the employee in the pocketbook while under two court orders to make payment. The mode of recovery should not vary based on the nature of the intentional tort.

(18 C. AS A STATUTORILY DEFINED THIRD-PARTY BENEFICIARY OF THE WORKERS' COMPENSATION INSURANCE CONTRACT, THE EMPLOYEE MAY MAINTAIN A BAD FAITH - CAUSE - OF - ACTION AGAINST THE INSURER.

19 This Court first recognized a cause of action in tort for an insurance company's bad faith refusal to pay a valid insurance claim in Christian v. American Home Assurance Co., 1977 OK 141, 577 P.2d 899. The duty arises from the recognition that a substantial part of the right purchased by an insured is the right to receive policy benefits promptly. The implied-in-law duty of good faith and fair dealing extends to all types of insurance companies and insurance policies. However, the insurer's duty to deal fairly and act in good faith is limited. It does not extend to every party entitled to payment. Rather, there must be a contractual or statutory relationship between the insurer and the party asserting the bad faith claim.

120 The Workers' Compensation Act sets forth a compensation scheme that is based on a three-party agreement entered into by the employer, the employee and the compensation carrier. An employee is not merely a potential claimant in relation to his or her employer's workers' compensation insurance contract. Title 85 0.8.2001 § 65.8 provides in mandatory language:

"Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Workers' Compensation Act shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected under such policy for the payment of benefits ... which contract may be enforced by such employee as the beneficiary thereof." [Emphasis supplied.]

Under § 65.3, employees are specifically denominated as third party beneficiaries with the express right to enforce the workers' compensation insurance contract.

121 Insurers owe a duty of good faith to employees deemed to be a third-party beneficiaries of a workers' compensation insurance contract. Employees, statutorily recognized as third party beneficiaries, should be allowed to recover for bad faith breaches. It is not for this Court to presume that the Legislature, after giving employees the legal posture to pursue a bad faith breach, expected that we would deny the right with the stoke of a judicial pen.

122 D. THE PENALTY PROVISION OF THE WORKERS' COMPENSATION ACT IS INADEQUATE TO MAKE AN EMPLOYEE WHOLE FOR INJURIES CAUSED BY THE INSURERS BAD FAITH BREACH.

23 Pursuant to 42 0.8.2001 § 42, an employee may proceed to district court for enforcement of a workers' compensation award when the benefits are not paid in ten days. The employee may either convert the award to an enforceable judgment bearing interest at the rate of eighteen percent or seek suspension or revocation of the insurer's authority to act as a compensation insurer.

24 Section 42 does not have a provision allowing the award of attorney's fees-an employee seeking imposition of either of the penalties will be required to expend a portion of the recovered award and interest in compensation of legal counsel. In a bad faith action, the employee would be entitled to the award. The employee could also seek other items of recovery consistent with the harm flowing from the bad faith breach, including punitive damages.

125 The penalty provision should not be construed to prevent a bad faith claim. The procedures for enforcement may result in the employee ultimately recovering the award's payment plus interest. However, the employee will be responsible for satisfying any debt incurred as attorney fees in an attempt to collect the benefits. The statute does not allow for recovery of attorney fees. It provides no vehicle for the collection of other items associated 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.

1 26 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 $1,817.89 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.

T27 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.

IL.

128 - OKLAHOMA - JURISPRUDENCE HAS LED EMPLOYEES TO REA-SsONABLY EXPECT FAIR DEALING AND HAS PUT WORKERS COMPENSATION INSURERS ON NOTICE THAT ACTING IN BAD FAITH MAY SUBJECT THE INSURER TO TORT DAMAGES.

129 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 0.8. § 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.

1 30 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 O0.8.2001 § 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.

31 In Goodwin v. Old Republic Ins. Co., 1992 OK 34, 828 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 insurance contract under its terms may be an intentional tort. It is undisputed that 15 0.8. 1982 § 29 authorizes a third party benefi-clary to enforce the terms of a contract made for the party's benefit. It is indisputable that 85 0.8.1981 § 65.3 declares that insurance coverage is secured for the benefit of the worker and that the worker is the third party beneficiary under the policy. If an employee is injured by an insurer's bad faith-intentional failure to pay benefits under an award, the employee has a common law action in tort under the Christian doctrine." [Footnotes omitted. Emphasis supplied.]

The same premises indisputable and undisputed in Goodwin remain so today. Only accidental injuries are covered by the Workers Compensation Act. Third party beneficiaries may enforce contract terms made for their benefit. Bad faith breaches may be intentional torts. Employees continue to be third party beneficiaries of the workers' compensation insurance contract. These employees should be allowed to enforce the terms of the contract and to bring suit in district court for the contract's bad faith breach.

1 32 Anderson v. United States Fidelity & Guaranty Co., 1997 OK 124, 948 P.2d 1216 presented the issue of whether an insurer's pre-award conduct would support a tort action for the bad faith of the workers' compensation insurance carrier. While we disallowed a claim for pre-award conduct, we noted that Goodwin, supra, recognized that a bad faith claim was separate and apart from the work relationship and that it arose against the insurer only after an award had been entered.

{33 Perhaps the most obvious signal to workers' compensation insurers of the need to act in good faith is YWCA of Oklahoma City v. Melson, 1997 OK 81, 944 P.2d 304. In YWCA, a workers' compensation self-insured group attempted to prohibit the production of financial documents the employee sought for in-trial proof to support an actual and punitive damages claim for the bad faith failure to pay a workers' compensation award. This Court held in YWCA that the documents were discoverable with consideration being made for the protection of sensitive materials, Although the existence of a bad faith claim was not presented for resolution in the cause, we allowed the discovery of materials intended to be utilized for the purpose of gaining a damages award in tort.

[ 34 When considered together-Fehring, Goodwin, Anderson and YWCA-have forecast, to insurance carriers and self-insured employers, the need to act in good faith to avoid tort liability. With those cases as a part of Oklahoma's jurisprudence, it is reasonable both for the employee to expect fair dealing and for insurers and self-insured employers to be required to act in good faith.

1 35 The only intellectually honest thing to do-if the majority is going to prohibit post-award bad faith actions in district court-is to overrule Fehring, Goodwin, Anderson and YWCA. Otherwise, the Court has left the impression that there may be some opportunity for the bringing of a bad faith action when it has precluded such actions against both insurers and self-insured employers. The fact that the employer here is self-insured will not prohibit the application of this case to one involving an insurance company. The liability of self insured or own risk employers is identical to that of insurance carriers. There is no distinction between a workers' compensation insurance carrier and an employer who voluntarily assumes self-insured status. Therefore, if a self-insured employer is not subject to suit for its post-award bad faith conduct, an insurer will not be liable for the same tortious acts. There simply will be no avenue for the bringing of a bad faith tort claim associated with any workers' compensation cause.

IL.

1 36 WELL-REASONED EXTANT JURISPRUDENCE-NEITHER - CONSIDERED NOR ANALYZED BY THE MAJORITY-SUPPORTS THE RECOGNITION OF THE TORT OF BAD FAITH FOR POST-AWARD CONDUCT.

137 Just as the employer ignored two court orders to pay for the employee's pre-seription drugs, the majority ignores persuasive extant jurisprudence supporting the imposition of a bad faith cause of action for post-award conduct. The majority makes no reference to extant jurisprudence. Nevertheless, many courts have considered whether workers' compensations statutes similar to Oklahoma's prohibit the institution of bad faith claims against insurers. This Court, like several others presented with the issue of whether such a claim will lie in the pre-award context, has determined that the district court lacks jurisdiction. However, a substantial number of courts determining the issue based on conduct occurring after a final determination of benefits have recognized the employee's right to pursue damages for the bad faith intentional tort.

T38 Courts refusing to acknowledge an independent tort action have done so: on grounds that no third-party beneficiary status exists between the employer and the insurer Oklahoma which recognizes third-party beneficiary status by statute; out of concern that carving out an exception for tort actions might swallow the rule of employer immunity -unconvineing considering that the issue is not employer conduct but an insurer's actions; and because remedies provided by the acts are adequate and penalty provisions will deter misconduct -not in Oklzshoma where no provision exists for the recovery of attorney fees or punitive damages.

T39 The better reasoned opinions-and those more closely aligned both with Oklahoma's legislative framework and with the forecast of this Court's opinions indicating that a bad faith tort action might lie for post-award conduct-allow independent actions for bad faith. They provide that the exelu-sivity provisions of their respective workers' compensation schemes are inapplicable because: bad faith is not a direct or natural consequence of the original compensable injury; the relief sought is separate and apart from the original physical injury; no specific legislative intent is expressed concerning the abrogation of bad faith actions; employees are necessarily third-party benefi-claries of workers' compensation insurance contracts; to refuse would defeat the remedial purposes of the statutes; workers' compensation statutes are not intended to encompass such injuries; and concurrent remedies often exist in the administrative and judicial fora.

{40 Neither do these courts determine that remedies encompassed within the workers' compensation context prevent recovery of bad faith damages. These findings are supported by the recognition that the statutory remedies: are most often modest when compared to recoveries at common law; do not make the employee whole; have lttle deterrent effect; apply only to negligent conduct rather than to intentional torts; rather than providing true penalties promote prompt payment; and are not intended to be the sole remedy for all types of insurer wrongful conduct.

CONCLUSION

{41 It is axiomatic that an employee's rights and remedies from an accidental injury suffered in the course of employment are exclusively provided under the Workers Compensation Act, 85 0.8.2001 § 1, et seq. District courts have no subject matter jurisdiction over a claim to workers' compensation benefits. Nevertheless, the exclusivity principle is limited to matters surrounding a job-related accidental injury. It does not extend to post-award dealings during which a tort may arise by reason of a bad faith breach by the insurer or self-insured employer. Although administrative fines may have some deterrent effect on self-insured employers, they do not purport to address the plight of the injured worker who may suffer great deprivation as a result of the tortious denial or delay of benefits. Further, allowing an employee to proceed in tort in the district court does not invade the province of the Workers' Compensation Court. Before an employee may file a bad faith action, the Workers' Compensation Court's work will have been concluded-the award for the job-related injury will be in place. Once the award has been finally determined by the Workers' Compensation Court, the issue will be identical to any bad faith tort action-whether the insurer has failed to execute its contract in good faith.

142 Today, the majority places an over-broad interpretation on the exclusivity and remedy provisions of the Workers' Compensation Act. It does so without overruling cases which would indicate that employees are entitled to expect, and that insurers are required to act, in good faith in the workers' compensation arena. It extends immunity from a bad faith suit to a self-insured employer in absence of specific statutory language requiring such a result and in the presence of the Legislature's declaration that, as third-party beneficiaries, employees may enforce such contracts. The majority does so although the Legislature has had the benefit of numerous rulings of this Court indicating that such a cause of action might well lie in post-award situations. Rather than judicially legislating a result not supported or required by the Workers' Compensation Act, our prior jurisprudence or well-reasoned extant case law, I would recognize the cause of action without expressing whether the facts presented support an award. The decision to preempt the common law action should be left to the Legislature's wisdom through the use of specific language if it disagrees with such a resolution.

      . Title 85 0.$.2001 § 61 provides in pertinent part:
      "A. An employer shall secure compensation to his employees in one of the following ways: ... 4. By furnishing satisfactory proof to the Administrator of the employer's financial ability to pay such compensation....
      C. _ An employer who fails to comply with the provisions of this section shall be subject to the penalty provided for in Section 12 of this title. ..."
      Title 85 0.8.2001 § 12 provides in pertinent part:
      ''The liability prescribed in Section 11 of this title shall be exclusive and in place of all other lability of the employer ... at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. If an employer has failed to secure the payment of compensation for his injured employee, or his legal representatives if death results from the injury, may maintain an action in the courts for damages on account of such injury, and in such action the defendant may not plead or prove as a defense that the injury was caused by the negligence of a fellow servant, or that the employee assumed the risk of his employment, or that the injury was due to the contributory negligence of the employee ..."

      . Title 85 0.S. Supp.2001 § 11 provides in pertinent part:
      "A. Every employer subject to the provisions of the Workers' Compensation Act shall pay, or provide as required by the Workers' Compensation Act, compensation according to the schedules of the Workers' Compensation Act for the disability or death of an employee resulting from an accidental personal injury sustained by the employee arising out of and in the course of employment, without regard to fault as a cause of such injury ..."
      Section 11 has been amended since the date of injury. Nevertheless, because the quoted language is identical to that of the 1996 statute, references are to the current version.

      . Title 85 0.$.2001 § 42 provides in pertinent part:
      "A. If payment of compensation or an installment payment of compensation due under the terms of an award, except in the case of an appeal of an award or an award from the Multiple Injury Trust Fund, is not made within ten (10) days after the same is due by the employer or insurance carrier liable therefore, the Court may order a certified copy of the award to be filed in the office of the court clerk of any county, which award whether accumulative or lump sum shall have the same force and be subject to the same law as judgments of the district court. Any compensation awarded and all payments thereof directed to be made by order of the Court, except in the case of an appeal of an award or an award of compensation from the Multiple Injury Trust Fund, shall bear interest at the rate of eighteen percent (18%) per year from the date ordered paid by the Court until the date of satisfaction.... Upon the filing of the certified copy of the Court's award a writ of execution shall issue and process shall be executed and the cost thereof taxed, as in the case of writs of execution, on judgments of courts of record, as provided by Title 12 of the Oklahoma Statutes; provided, however, the provisions of this section relating to execution and process for the enforcement of awards shall be and are cumulative to other provisions now existing or which may hereafter be adopted relating to liens or enforcement of awards or claims for compensation.

        B. If any insurance carrier intentionally, knowingly, or willfully violates any of the provisions of the Workers' Compensation Act or any published rules or regulations promulgated thereunder, the Insurance Commissioner, on the request of a judge of the Court or the Administrator, shall suspend or revoke the license or authority of such insurance carrier to do a compensation business in this state."

      . Whitson v. Oklahoma Farmers Union Mutual Ins. Co., 1995 OK 4, ¶ 8, 889 P.2d 285.

      . Lum v. Lee Way Motor Freight, Inc., 1987 OK 112, ¶ 30, 757 P.2d 810; Falline v. GNLV Corp., see note 33, infra.

      . Reedy v. White Consolidated Indus., Inc., 503 N.W.2d 601-02 (Iowa 1993).

      . Id.

      . White v. Northwestern Bell Tele Co., 514 N.W.2d 70, 77 (Iowa 1994). See also, Arp v. AON/Combined Ins. Co., note 33, infra; Balyint v. Arkansas Best Freight Sys., Inc., note 33, infra.

      . Title 85 0.9.2001 § 61(A) allows employers to secure compensation through a workers' compensation insurance policy, by obtaining guaranty insurance, by an agreement with employees through which a scheme of compensation in lieu of workers' compensation benefits is provided or by furnishing proof of the employer's financial ability to pay workers' compensation benefits.

      . Title 85 0.8.2001 § 61(B) provides:
      "An employer who fails to comply with the provisions of this section shall be subject to the penalty provided for in Section 12 of this title."

      . Title 85 0.8.2001 § 12, see note 1, supra.

      . Title 12 § 2 provides:
      "The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma; but all such statutes shall be liberally construed to promote their object."
      Ricks Exploration Co. v. Oklahoma Water Res. Bd., 1984 OK 73, ¶ 14, 695 P.2d 498.

      . Title 12 O.S.2001 § 2, see note 12, supra.

      . Title 25 O.S.2001 § 29 provides:
      ''The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice."

      . Goodwin v. Old Republic Ins. Co., 1992 OK 34, ¶ 15, 828 P.2d 431.

      . Title 85 0.$.2001 § 11, see note 2, supra.

      . Title 85 0.8.2001 § 3 provides in pertinent part:
      "As used in the Workers' Compensation Act: ... (12)(a) 'Injury' or 'personal injury' means only accidental injuries arising out of and in the course of employment and such disease or infections as may naturally result therefrom and occupational disease arising out of and in the course of employment as herein defined. Provided, only injuries having as their source a risk not purely personal but one that is reasonably connected with the conditions of employment shall be deemed to arise out of the employment. ..."

      . Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶ 11, 23 P.3d 288.

      . Travelers Ins. Co. v. Savio, see note 33 at 1270, infra; Baker v. American States Ins. Co., see note 33, infra.

      . Brazier v. Travelers Ins. Co., see note 33 at 544, infra.

      . Goodwin v. Old Republic Ins. Co., see note 15 at ¶ 8, supra; Christian v. American Home Assurance Co., 1977 OK 141, ¶ 24, 577 P.2d 899.

      . Roach v. Atlas Life Ins. Co., 1989 OK 27, ¶ 8, 769 P.2d 158; Rodgers v. Tecumseh Bank, 1988 OK 36, ¶ 12, 756 P.2d 1223; McCorkle v. Great Atlantic Ins. Co., 1981 OK 128, ¶ 27, 637 P.2d 583.

      . Roach v. Atlas Life Ins. Co., see note 22, supra; Allstate Ins. Co. v. Amick 1984 OK 15, ¶ 14, 680 P.2d 362; Timmons v. Royal Globe Ins. Co., 1982 OK 97, ¶ 13, 653 P.2d 907.

      . Title 85 0.S.2001 § 65.3 provides:
      "'Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Workers' Compensation Act shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy for the payment of benefits as provided by the Workers' Compensation Act regardless of the type of business in which the employer of such person is engaged or the type of work being performed by the employee at the time of any injury received by such employee arising out of and in the course of his employment, which contract may be enforced by such employee as the beneficiary thereof."
      PFL Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 14, 958 P.2d 156; State Ins. Fund v. Brooks, 1988 OK 50, ¶ 7, 755 P.2d 653.

      . National Union Fire Ins. Co. of Pittsburgh v. McDougall, see note 33, infra.

      . Title 85 § 42, see note 3, supra.

      . Taylor v. State Farm Fire & Casualty Co., 1999 OK 44, ¶¶ 11-14, 981 P.2d 1253.

      . - Barnes v. Oklahoma Farm Bureau Mutual Ins. Co., 2000 OK. 55, ¶ 44, 11 P.3d 162.

      . - It is noteworthy that the author of Fehring v. State Ins. Fund, 2001 OK 11, 19 P.3d 276, also authored a dissent to the Court's opinion in Anderson v. United States Fidelity & Guaranty Co., 1997 OK 124, 948 P.2d 1216. Anderson, this note supra, held that no bad faith claim could be pursued for pre-award conduct in the workers' compensation arena. The two propositions of the dissent provided:
      "PART I. A WORKERS' COMPENSATION CLAIMANT IS OWED BY A WORKERS' COMPENSATION CARRIER A DUTY OF GOOD FAITH AND FAIR DEALING WITH RESPECT TO THE PRE-AWARD HANDLING OF A WORKERS' COMPENSATION INSURANCE CLAIM AND CLAIMANT HAS STANDING TO BRING A BAD FAITH
      CLAIM AGAINST THE CARRIER." "PART II. THIS COURTS PREVIOUS CASES DO NOT PRECLUDE A COMMON LAW TORT CLAIM AGAINST THE CARRIER FOR PRE-AWARD BAD FAITH CONDUCT." {Emphasis in original.]

      . Davis v. CMS Continental Natural Gas, Inc., 2001 OK 33, ¶ 16, 23 P.3d 288 indicates that an employer, within the employer-employee working relationship, may be held liable for wilful and wanton acts resulting in an employee's on-the-job injury. The Court of Civil Appeals has issued two opinions relating to bad faith in the workers' compensation context. In both causes, we denied certiorari. The Court of Civil Appeals in Cooper v. National Union Fire Ins. Co. of Pittsburgh, 1996 OK CIV APP 52, 921 P.2d 1297 held that only the workers' compensation insurer's post award conduct was relevant on the issue of bad faith and that there was sufficient evidence to support submission of the bad faith and punitive damages issues to the jury. In Heintz v. Trucks For You, Inc., 1999 OK CIV APP 64, 984 P.2d 255, the appellate court determined that an employer's pre-award conduct was insufficient to support a bad faith claim and delaying payment while appealing an award was insufficient to demonstrate the tort. Both Cooper and Heintz, this note supra, were released for publication by order of the Court of Civil Appeals, are persuasive only, and lack precedential effect. Rule 1.200, Supreme Court Rules, 12 O.S.2001, Ch. 15, App. 1.

      . Lum v. Lee Way Motor Freight, Inc., see note 5, supra; Falline v. GNLV Corp., see note 33, infra.

      . Reedy v. White Consolidated Indus., Inc., see note 6, supra.

      . Courts allowing recovery for bad faith. Arp v. AON/Combined Ins. Co., 300 F.3d 913, 915 (8th Cir.2002); Buote v. Verizon New England, 190 F.Supp.2d 693, 707 (D.Vermont 2002); Brazier v. Travelers Ins. Co., 602 F.Supp. 541, 548 (N.D. Georgia 1984); Walls v. Franklin Corp., 797 So.2d 973, 977 (Miss.2001); Gibson v. ITT Hartford Ins. Co., 621 N.W.2d 388, 396 (Iowa 2001); National Union Fire Ins. Co. of Pittsburgh v. McDougall, 773 A.2d 388, 391-92 (Delaware 2001), rehearing/reargument denied en bane; Hough v. Pacific Ins. Co., Ltd., 83 Hawai'i 457, 927 P.2d 858, 866 (1996); Twin City Fire Ins. Co. v. Davis, 904 S.W.2d 663, 666 (Texas 1995); Falline v. GNLV Corp., 107 Nev. 1004, 823 P.2d 888, 893 (1991); Balyint v. Arkansas Best Freight Sys., Inc., 18 Ohio St.3d 126, 480 N.E.2d 417, 420 (1985); Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1270 (Colo.1985); Hayes v. Aetna Fire Underwriters, 187 Mont. 148, 609 P.2d 257, 261, 8 A.L.R.Ath 892 (1980); Coleman v. American Universal Ins. Co., 86 Wis.2d 615, 273 N.W.2d 220 (1979) Markgraf v. Douglas Corp., 468 N.W.2d 80, 82 (Minn.App.1991); Baker v. American States Ins. Co., 428 N.E.2d 1342, 1345 (Ind.App.1981). See also, Jablonski v. Royal Globe Ins., Co., 204 Cal.App.3d 379, 251 Cal.Rptr. 160, 168 (1988) [Insurer's intentional destruction of evidence relates to cause of action outside sphere of workers' compensation system. Employee allowed to proceed on basis of fraud and spoliation of evidence.]. See generally, Annot., "Tort Liability of Worker's Compensation Insurer for Wrongful Delay or Refusal to Make Payments Due", 8 A.L.R.4th 902 (1981); Annot. "What Conduct is Willful, Intentional, or Deliberate Within Work men's Compensation Act Provision Authorizing Tort Action for Such Conduct," 96 A.L.R.3d 1064 (1979).
      Courts refusing to acknowledge the tort of bad faith. Breton v. Travelers Ins. Co., 147 F.3d 58, 63 (1st Cir.1998); Winterberg v. Transportation Ins. Co., 72 F.3d 318, 324 (3rd Cir.1995); Barnard v. Zapata Haynie Corp., 1993 A.M.C. 402, 975 F.2d 919, 921 (1st Cir.1992); Hall v. C & P Telephone Co., 253 U.S.App.D.C. 368, 372, 793 F.2d 1354 (D.C.App.1986), reh'ng denied, 258 U.S.App.D.C. 83, 809 F.2d 924 (1987); Hobbs v. Alabama Power Co., 775 So.2d 783, 787 (Ala.2000); Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 906, 980 P.2d 566, 570 (1999); Cianci v. Nationwide Ins. Co., 659 A.2d 662, 667 (R.I.1995); Liberty Mutual Ins. Co. v. Coleman, 313 Ark. 212, 852 S.W.2d 816, 818 (1993); Wolf v. Scott Wetzel Serv., Inc., 113 Wash.2d 665, 782 P.2d 203, 209 (1989); Ancrum v. United States Fidelity & Guar. Co., 301 S.C. 32, 389 S.E.2d 645-46 (1989); Zurich Ins. Co. v. Mitchell, 712 S.W.2d 340 (Ky.1986); Aetna Cas. & Surety Co. v. Davis, 253 Ga. 376, 320 S.E.2d 368, 370 (1984); Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 689 P.2d 837, 843 (1984); Robertson v. Travelers Ins. Co., 95 Ill.2d 441, 69 Ill.Dec. 954, 958, 448 N.E.2d 866 (1983); Taylor v. United States Fidelity & Guaranty, 420 So.2d 564-65 (Miss.1982); Meyers v. Western Auto & CNA Ins. Cos., 2002 NMCA 089, 116 54 P.3d 79, cert. denied, 132 N.M. 551, 52 P.3d 411 (2002); Deem v. Treadaway & Sons Painting & Wallcovering, Inc., 142 N.C.App. 472, 543 S.E.2d 209, 211 (2001), review denied, 354 N.C. 216, 553 S.E.2d 911 (2001); Davis v. Alexsis, Inc., 2 SW.3d 228-29 (Tenn.App.1999); Gunderson v. May Dept. Stores Co., 955 P.2d 346, 351 (Utah App.1998); Alston v. St. Paul Ins. Co., 389 Pa.Super. 396, 567 A.2d 663, 669 (1989), appeal granted, 527 Pa. 621, 592 A.2d 42 (1991), order aff'd, 531 Pa. 261, 612 A.2d 421 (1992); Suarez v. Metropolitan Erection Co., 559 So.2d 29-30 (La. App.1990); Bowen v. Aetna Life & Cas. Co., 512 So.2d 248 (Fla.App.1987); Caplan v. Fireman's Fund Ins. Co., 175 Cal.App.3d 146, 220 Cal.Rptr. 549-50 (1985); Jadofsky v. Iowa Kemper Ins. Co., 120 Wis.2d 494, 355 N.W.2d 550, 552 (Wis.App.1984).
      Although the majority of courts have refused to recognize an independent tort, some of these same jurisdictions acknowledge that an insurer may conduct itself in such an outrageous manner that employees must be allowed to proceed in district court. Travelers Indem. Co. v. Griner, 809 So.2d 808, 811 (Ala.2001) [Conduct of insurer and administrator so outrageous as to warrant submitting issue of intentional infliction of emotional distress to jury.]; The Travelers Ins., Co. v. Smith, 329 Ark. 336, 947 S.W.2d 382, 386 (1997) [No bar to misrepresentation and outrage arising out of adjuster's representations regarding autopsy requirements resulting in delay in embalming of claimant.]; Robertson v. Travelers Ins. Co., this note, supra; [Refused to express view as to whether plaintiff may claim tortious conduct amounting to emotional distress resulting from outrageous activity.]; Wolf v. Scott Wetzel Serv., Inc., this note, supra [Court refused to hold that a civil action would not lie for misconduct in the administration of a workers' compensation claim under any circumstances, i.e. intentional conduct or tort of outrage.]; Appl v. Lee Swett Livestock Co., 192 Cal.App.3d 466, 237 Cal.Rptr. 433, 438 (1987) [Inapplicability of exclusive remedy provision when employer is guilty of outrageous and extreme conduct.]; Bowen v. Aeta Life & Cas. Co., this note, supra [No exclusive remedy for intentional infliction of emotional distress.].

      . - Anderson v. United States Fidelity & Guaranty Co., 1997 OK 124, ¶ 6, 948 P.2d 1216; Whitson v. Oklahoma Farmers Union Mut. Ins. Co., see note 4, supra. See also, Heintz v. Trucks for You, Inc., see note 30, supra; Cooper v. National Union Fire Ins. Co., see note 30, supra. But see, Boy v. Fremont Indem. Co., 154 Ariz. 334, 742 P.2d 835, 838 (Ct.App.1987) [Although the existence or non-existence of bad faith ordinarily turns on whether there has been a final award of benefits, outrageous conduct on the part of a carrier could establish lability for bad faith prior to the issuance of a final award.].

      . Buote v. Verizon New England, see note 33, supra; Brennan v. Western Nat'l Mut. Ins. Co., 125 F.Supp.2d 1152, 1154 (D.S. Dakota 2001); Taylor v. Standard Ins. Co., 28 F.Supp.2d 588, 591 (D.Hawai'i 1997); Shepherd v. Boston Old Colony Ins. Co., 811 F.Supp. 225, 229 (S.D.Miss. 1992); Walls v. Franklin Corp., see note 33, supra; Brazier v. Travelers Ins. Co., see note 33, supra; Gibson v. ITT Hartford Ins. Co., see note 33, supra; Hough v. Pacific Ins. Co., Ltd., see note 33, supra; Hayes v. Continental Ins. Co., see note 33, infra; Falline v. GNLV Corp., see note 33, supra; Tallman v. Hanssen, 427 N.W.2d 868, 870 (Iowa 1988). See also, American Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 803 (Texas 2002); Broaddus v. Ferndale Fastener Div., 84 Mich.App. 593, 269 N.W.2d 689, 691 (Mich.App.1978) [Must show entitlement to benefits before bringing bad faith claim.].

      . Cianci v. Nationwide Ins. Co., see note 33, supra.

      . Winterberg v. Transportation Ins. Co., see note 33, supra.

      . Cruz v. Liberty Mut. Ins. Co., 119 N.M. 301, 889 P.2d 1223, 1226 (1995).

      . Hanna v. Fleetguard, Inc., 900 F.Supp. 1110, 1123-24 (N.D.Iowa 1995); Travelers Ins. Co. v. Savio, see note 33 at 1264, supra; Markgraf v. Douglas Corp., see note 33, supra; Boy v. Fremont Indem. Co., note 34, supra.

      . Hollman v. Liberty Mut. Ins. Co., 712 F.2d 1259, 1261 (8th Cir.1983); Twin City Fire Ins. v. Davis, see note 33, supra; Leathers v. Aetna Cas. & Surety Co., 500 So.2d 451-52 (Miss.1986); Hayes v. Aetna Fire Underwriters, see note 33 at 260, supra; Broaddus v. Ferndale Fastener Div., see note 35, supra.

      . - Gibson v. ITT Hartford Ins. Co., see note 33 at 396, supra; Hough v. Pacific Ins. Co., Ltd., see note 33 at 867, supra; Hayes v. Continental Ins. Co., 178 Ariz. 264, 872 P.2d 668, 673 (1994); Falline v. GNLV Corp., see note 33 at 892, supra; Travelers Ins. Co. v. Savio, see note 33 at 1263, supra.

      . Hough v. Pacific Ins. Co., Ltd., see note 33 at 869; Rowland v. Great States Ins. Co., 199 Ariz. 577, 20 P.3d 1158, 1163 (Ct.App.2001).

      . Seale v. American Motorist Ins. Co., 798 S.W.2d 382, 389 (Tex.App.1990).

      . Coleman v. American Universal Ins. Co., see note 33, supra.

      . Brazier v. Travelers Ins. Co., see note 33 at 547, supra; Hayes v. Continental Ins. Co., see note 33 at 674, supra; Travelers Ins. Co. v. Savio, see note 33 at 1270, supra.

      . Hayes v. Continental Ins. Co., see note 33 at 672, supra; Falline v. GNLV Corp., see note 33 at 892, supra; Travelers Ins. Co. v. Savio, see note 33 at 1267.

      . Boute v. Verizon New England, see note 33 at 707, supra.

      . Hough v. Pacific Ins. Co., Ltd., see note 33 at 867, supra; Southern Farm Bureau Cas. Ins. Co., v. Holland, 469 So.2d 55, 58 (Miss.1984).

      . Boylan v. American Motorists Ins. Co., 489 N.W.2d 742, 744 (Iowa 1992); Southern Farm Bureau Cas. Ins. Co. v. Holland, see note 48, supra; Hayes v. Aetna Fire Underwriters, see note 33 at 261, supra.

      . Coleman v. American Universal Ins. Co., see note 33 at 224, supra.

      . Gibson v. ITT Hartford Ins. Co., see note 33 at 396, supra.