INTRODUCTION
WORKERS' COMPENSATION BAR ESTABLISHED BY ACT
The workers' compensation system was established to provide an expeditious administrative program to provide benefits to the injured worker as a result of an industrial accident or occupational exposure. The benefits are to be awarded with a minimum of delay and regardless of fault. The system provides a direct remedy to the worker and limits litigation and exposure to the employer.
RECOVERY REDUCED COMPARED TO LIABILITY CLAIM
Recovery for the injured employee is based upon a statutory scheme enacted by the legislature which limits the employer's liability. The injured worker is limited to a percentage of his weekly earnings for temporary disability benefits and to a statutory schedule for permanent disability benefits. Under the workers' compensation system the injured worker is not permitted to recover against the employer for negligence, for the limitless "pain and suffering" awards or for punitive damages.
EXCLUSIVE REMEDY FOR SPOUSE
MASSACHUSETTS PERMITTED SPOUSE TO RECOVER
The workmen's compensation act (St. 1911, c. 751), while intended to take away from injured employees, who shall become subject to its provisions, all common law rights of action, does not affect the right of action of the parent of a minor servant, who was injured, for the injury not only gives rise to one cause of action in favor of the minor, but to another in favor of his parents, and the parent's action is in no way consequential on that of the minor, being based on loss of services during minority and expenses necessitated by the injury. The right of action of a parent of an injured minor servant is not barred by an allowance to the servant under the workmen's compensation act (St. 1911, c. 751), on the theory that the compensation is really a payment of wages to which the parent is entitled, for part 2, s 11, clearly shows that the allowance, though based on salary, is also for permanent injuries. King v. Viscoloid Co. 106 N.E. 988, 219 Mass. 420 (Mass. 1914)
CHILDREN'S CLAIM FOR LOSS OF FATHER'S COMPANIONSHIP
Children and wife of employee brought action to recover against employer for loss of employee's consortium and society due to injuries sustained by him as result of employer's alleged negligence and also sought to recover for mental anguish and impairment of health resulting from observation of employee's injuries. The Superior Court, Hampden County, Cross, J., denied employer's motion for summary judgment on claims for loss of consortium and society, but granted motion on claims for mental anguish and impaired health, and reported case. After granting children's and wife's application for direct appellate review, the Supreme Judicial Court, Liacos, J., held that:
childrens' claim for loss of employee's companionship and society caused by employer's negligence was claim on which relief could be granted;
in such action in which statement of agreed facts indicated that wife and children first saw employee's injuries in hospital, it could be inferred, for purposes of withstanding motion for summary judgment, that, with respect to when shock had occurred, applicable principles of proximity were satisfied so as to permit maintenance of cause of action for mental anguish and impaired health; and
children and wife of such employee, who had accepted workmen's compensation payments without giving notice that he wished to preserve his rights in common law, were not barred by Workmen's Compensation Act from recovering on their claims. Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E. 2d 690 (Mass. 1980)
LOSS OF COMPANIONSHIP
Children's claim for loss of father's companionship and society caused by defendant's negligence was a claim on which relief could be granted if children could show that they were minors dependent on father; such dependence would have to be rooted not only in economic requirements, but also in filial needs for closeness, guidance and nurture.
LEGISLATIVE CONSTRUCTION
Legislative inaction following judicial interpretation of a statute provides only frail evidence that legislature approves of court's interpretation.
DOCTRINE OF CONSTRUCTIVE LOSS
"Both causes were founded upon an analogy with a master's action for enticement of his servant. In order to prevail, the father had to show actual loss of his child's services. W. Prosser, Torts s 124 at 882 (4th ed. 1971). With time, a doctrine of constructive loss of services developed. If the child was a minor and the father had a right to his or her services the child was presumed to be his servant. " Id. at 692, 413 N.E.2D 690.
DEPENDENCY CLAIM NOT A BAR
Employee's receipt of dependency benefits under provision within Workmen's Compensation Act would not bar claims of a spouse or a child for loss of employee's consortium or society.
INTEREST OF A CHILD AT LARGE
Over sixty years ago, Dean Pound said, "As against the world at large a child has an interest ... in the society and affection of the parent, at least while he remains in the household. But the law has done little to secure these interests .... It will have been observed that legal securing of the interests of children falls far short of what general considerations would appear to demand." Pound, Individual Interests in the Domestic Relations, 14 Mich.L.Rev. 177, 185-186 (1916)." Id. at 695, 413 N.E.2D 690.
LEGACY OF THE KING DECISION
" We recognized in King v. Viscoloid Co., 219 Mass. supra at 422, 106 N.E. 988, that the employee's remedy should be exclusive, and we do not question that proposition today. "But we find in the act nothing which goes further than this for the protection of the employer." Id. In Massachusetts, employers within the compensation act have never been in a position to rely on determinate liability for derivative third party injuries. And fault has never been purged entirely from the statutory scheme. This is the legacy of the King decision and our unusual statute, G.L. c. 152, s 24, whose language unambiguously limits the scope of the employee's waiver. Despite numerous legislative reports on workmen's compensation a revision of the participation requirement of the act, and many amendments of the section in question, that strict language remains. Few exclusive liability provisions in workmen's compensation statutes are so narrowly drawn. Id. at 699-701, 413 N.E.2D 690.
SIXTY-SIX YEARS UNSCATHED
"In the construction of statutes resembling ours, King v. Viscoloid Co., supra, is the acknowledged leading case....Without a declaration of legislative intent to the contrary, we are disinclined to disturb our rule, which has weathered sixty-six years unscathed." Id.
SUPERSEDED BY STATUTE
Superseded by Statute as Stated in Lijoi v. Massachusetts Bay Transp. Authority, 28 Mass.App.Ct. 926, 548 N.E.2d 893 (Mass.App.Ct., Jan 16, 1990) (NO. 88-P-1118); Corrigan v. General Elec. Co., 406 Mass.; 478, 548 N.E.2d 1238 (Mass., Jan 18, 1990) (NO. 5045) Russell v. Boston Wyman, nc., 410 Mass. 1005, 574 N.E.2d 379 (Mass., Jul 09, 1991) (NO. 5599)
CONSTITUTIONALLY VALID PROHIBITION
Action by parent, individually and as administrator of his deceased minor son's estate, challenging constitutionality of Workmen's Compensation Act insofar as it relates to compensation for death of an employee who leaves no surviving dependents. The Circuit Court, Duval County, Roger J. Waybright, J., held that the statute was constitutional, and appeal was taken. The Supreme Court, Carlton, J., held that since the employee, by his own voluntary act, chooses to bind himself and his representative and survivors in the event of death to the provisions of the Workmen's Compensation Act, no unconstitutional discrimination exists under the circumstances if, after death of an employee who leaves no surviving dependents, suit cannot be brought for such death under the Survival Statute or under the Wrongful Death Acts. Mullarkey v. Florida Reed Mills, Inc., 268 So.2d 363 (Fla. 1972)
EXCLUSIVITY OF REMEDY
Concept of exclusiveness of remedy embodied in workmen's compensation statute providing that the Act is the exclusive source of liability of the employer if the employee has accepted the Act is a rational mechanism for making the compensation system work in accord with the purposes of the Act since, in return for accepting vicarious liability for all work-related injuries regardless of fault, and surrendering his traditional defenses and superior resources for litigation, employer is allowed to treat compensation as a routine cost of doing business, while employee trades his tort remedies for a system of compensation without contest, thus sparing him the cost, delay and uncertainty of a claim in litigation. F.S.A. s 440.11. Id.
STRONG DISSENT
Ervin, Justice (dissenting): I believe Florida Statutes, Chapter 440, F.S.A., to be unconstitutional insofar as it eliminates for a limited class of persons all right of recovery for the wrongful death of another. The majority opinion clearly does nothing to advance the goals of either Act. It frustrates the Wrongful Death Act's attempt to provide for those to whom the decedent may be indebted while being unresponsive to the Workmen's Compensation Act's dual purposes of providing benefits for workers injured on the job and preventing employers from being exposed to double liability through multiple claims. In fact, the majority result gives the employer a windfall by permitting it to escape all liability even for a death caused by its negligence. Surely the Workmen's Compensation Act does not intend to render totally harmless a negligent employer who is responsible for an employee's wrongful death. See Trail Builders Supply Company v. Reagan, Fla.1970, 235 So.2d 482, 485. Mullarkey v. Florida Feed Mills, Inc., 268 So. 2d 363 (Fla. 1972).
ELECTION OF REMEDY - PERMITTED BY A FEW STATES
In several states there are certain classes of people that received special treatment under the workers' compensation act. Minors are such a group that have additional options available on occasion. A minor, in some jurisdictions, may elect to pursue a common-law action. Pappano v. Shop Rite of Pennington, Inc., 213 N.J. Super 305, 517 A.2d 178 (App. Div. 1986).
FAILURE OF EMPLOYERS TO SECURE INSURANCE
LIABILITY ACTION DENIED
Civil action by employee against employer. The Second District Court, Weber County, Charles G. Cowley, J., dismissed complaint on ground that employee was covered by workmen's compensation insurance at time he was injured, and appeal was taken. The Supreme Court, Callister, J., held that failure of employer to furnish annually to the commission proof of financial ability to pay direct compensation did not disqualify employer as a self-insurer so as to give employee right to maintain civil action. Lovato v. Beatrice Foods, 22 UTAH 2d 371, 453 P. 2d 692 (Utah 1969)
UTAH'S ACT
It should be noted that Utah's Act is compulsory and not permissive or elective. Ind. Comm. of Utah v. Daly Min. Co., 51 Utah 602, 172 P. 301 (1918). All employees who are not specifically excepted must comply with the Act. Compliance may be accomplished in one of three ways as provided in Section 35--1--46, U.C.A.1953, i.e., (1) by being insured with the State Insurance Fund, (2) by being insured with a qualified insurance carrier, or (3) by qualifying as a self-insurer.
DISSENT: NOT FINANCIALLY SOUND APPROACH
Manifestly, it was a continuing solvency and ability to pay that the legislature had in mind as a prerequisite for exemption from the insurance requirement of the act. As practical men the legislators knew that financial status does not remain static and that a statute which expended its force in a single examination would provide little assurance of prompt payment of compensation during future years. I am of the opinion that an employer who desires to carry its own insurance must comply with the statute and file an annual proof of financial ability to pay direct compensation before it is entitled to the benefits of the act. Id, at 695-696.
EMPLOYER'S MISCONDUCT
IMPRISONMENT
Plaintiff's allegations that defendant "wilfully and deliberately" imprisoned her in his office "without legal excuse or justification" and that actions of defendants were "intentionally, deliberately and maliciously committed" for purpose of causing plaintiff to suffer great emotional and mental distress met requirements of a true intentional tort and fell outside the exclusive remedy provision of the Worker's Disability Compensation Act. M.C.L.A. s 418.131. Schutt v. Lado, 138 Mich. App. 433, 360 N.W. 2d 214 (MICH 1984)
OUTSIDE EXCLUSIVE REMEDY PROVISION
In this case, plaintiff has clearly alleged torts which fall outside the exclusive remedy provision. She alleges that Dr. Robert Lado" wilfully and deliberately" imprisoned her in his office "without legal excuse or justification" and that the actions of the defendants were "intentionally, deliberately and maliciously committed" for the purpose of causing plaintiff to suffer great emotional and mental distress. These allegations meet the requirements of a "true" intentional tort: "the formation by the employer of a specific intention to cause an injury or death (combined with some action aimed at accomplishing such result), as opposed to mere negligence or even gross negligence". Barnes v. Double Seal Glass, supra, 129 Mich.App. 81, 341 N.W.2d 812 (T.M. Burns, P.J., concurring). The allegations are therefore distinguishable from those allegations of intentional torts which, in essence, claim only that an employer was negligent in permitting another person to commit an intentional tort against the plaintiff. Such claims would properly belong within the exclusive remedy provision of the WDCA. See Burgess v. Holloway Construction Co., 123 Mich.App. 505, 332 N.W.2d 584 (1983); Genson v. Bofors-Lakeway, Inc., 122 Mich.App. 470, 332 N.W.2d 507 (1983), and McKinley v. Holiday Inn, 115 Mich.App. 160, 320 N.W.2d 329 (1982), lv. den. 417 Mich. 890 (1983). Id. at 215.
FAILURE TO EQUIP MACHINE WITH SAFETY GUARDS
Employee brought action against employer to recover for injuries sustained when employee's hand came in contact with ten-inch table saw not equipped with safety guard. The Circuit Court, Randolph County, George R. Triplett, J., sustained employer's motion to dismiss, and employee appealed. In another case, recovery was sought against another employer for another employee's death occurring when platform, which spanned excavation at bridge construction site, dislodged. The Circuit Court, Kanawha County, W. H. Belcher, J., granted employer's motion to dismiss, and appeal was taken. In a third action, recovery was sought against coal company for death of its employee who was crushed by large quantity of falling slate. The Circuit Court, Boone County, Jerry W. Cook, J., sustained employer's motion to dismiss, and appeal was taken. After consolidation of the cases, the Supreme Court of Appeals, McGraw, J., held that:
under Workmen's Compensation Act provision, employer is subject to common-law tort action for damages or for wrongful death where employer commits an intentional tort or engages in wilful, wanton and reckless misconduct;
material issue of fact on issue whether employee injured by saw was injured as result of deliberate intent on part of employer precluded summary judgment;
genuine issue of material fact whether employee, who was killed when platform was dislodged, was killed as result of deliberate intent on part of employer precluded summary judgment, and
complaint filed by administratrix of estate of coal company employee stated claim for relief. Mandolidis v. Elkins,161 W.Va. 695, 246 S.E. 2d 907, 96 A.L.R. 3d 1035 (App. Div. W. Va. 1978).
SUBJECTIVE REALIZATION
"Wilful, wanton and reckless misconduct" requires a subjective realization of the risk of bodily injury created by the activity, and, as such, does not constitute any form of negligence.
DELIBERATE INTENT
In employee's action against employer to recover for injuries sustained when employee's hand came in contact with ten-inch table saw not equipped with safety guard, genuine issue of material fact whether employee was injured as a result of deliberate intent on part of employer, and, thus, employer was not immune from suit under Workmen's Compensation Act precluded summary judgment for employer.
PREMEDITATION
Wilfulness or wantonness imports premeditation or knowledge and consciousness that injury is likely to result from the act done or from the omission to act. Wilful, malicious, or intentional misconduct is not, properly speaking, within the meaning of the term 'negligence.' Negligence and wilfulness are mutually exclusive terms which imply radically different mental states. 'Negligence' conveys the idea of inadvertence as distinguished from premeditation or formed intention. An act into which knowledge of danger and wilfulness enter is not negligence of any degree, but is wilful misconduct. In our view when death or injury results from wilful, wanton or reckless misconduct such death or injury is no longer accidental in any meaningful sense of the word, and must be taken as having been inflicted with deliberate intention for the purposes of the workmen's compensation act. In light of the foregoing discussion, the phrase "deliberate intent to produce such injury or death" must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct. See Barr v. Curry, 137 W.Va. 364, 71 S.E.2d 313 (1952); Stone v. Rudolph, 127 W.Va. 335, 32 S.E.2d 742 (1944); See 2 Restatement (Second) of Torts s 500-03 (1965).
While wilful, wanton, and reckless misconduct are well-established concepts, we wish to make clear that we are using the words "wilful," "wanton," and "reckless" misconduct synonymously, and that the conduct removing the immunity bar must be undertaken with a knowledge and an appreciation of the high degree of risk of physical harm to another created thereby. See Restatement (Second) of Torts s 500, Comment a at 587-88 (1965).
RESTATEMENT "INTENT"
"We adopt the Restatement Second of Torts definition of "intent." Intentional . . . "denote(s) that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Restatement (Second) of Torts s 8A (1965). See also W. Prosser, Handbook of the Law of Torts 31-2 (4th ed. 1971).
PROOF-CIRCUMSTANTIAL
"Proof of the subjective realization of the risk may and must generally be proved by circumstantial evidence. For example, the defendant's knowledge of the existence and contents of federal and state safety laws and regulations is competent evidence. Prior deaths or injuries as a result of the risk would certainly be relevant. Id. at 914.
SUPERSEDED BY STATUTE/RULE
As Stated in Handley v. Union Carbide Corp., 804 F.2d 265 (4th Cir.(W.Va.), Oct 31, 1986) (NO. 85-2333 (L), 85-2334)
Superseded by Statute as Stated in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (N.C., Aug 14, 1991) (NO. 584A88)
Declined to Follow by Houston v. Bechtel Associates Professional Corp., 522 F.Supp. 1094 (D.D.C., Sep 23, 1981) (NO. CIV. 81-0699); Shearer v. Homestake Min. Co., 557 F.Supp. 549 (D.S.D., Feb 25, 1983) (NO. CIV79-5122); Called into Doubt by Statute as Stated in Ball v. Joy Mfg. Co., 755 F.Supp. 1344 (S.D.W.Va., Sep 18, 1990) (NO. CIV. A. 1:87-0268, CIV. A. 1:88-0133, CIV. A. 1:88-1691)
WORKPLACE ENVIRONMENT: DELIBERATE INTENT V. GROSS INTENT
In action arising from alleged exposure of workers to asbestos or asbestos-containing products while in course of their employment, workers moved for leave to file amended and supplemental complaint setting forth their claims of "intentional wrong" against former employers. The District Court, Brotman, J., held that employers of workers allegedly exposed to asbestos were shielded from liability at common law as a result of the New Jersey Workmen's Compensation Statute's provision that workmen's compensation remedy was exclusive remedy except for intentional wrong, notwithstanding workers' allegations in their proposed amendment and supplemental complaint. Copeland v. Johns-Manville Products Corporation, 492 F.Supp. 498 (DC NJ 1980)
MOTIVATION FOR PROFIT WAS NOT AN "INTENTIONAL WRONG"
"Employers of workers allegedly exposed to asbestos or asbestos-containing products were shielded from any liability at common law as a result of operation of New Jersey Workmen's Compensation Statute which barred common-law action for damages against employers unless alleged conduct of employer constituted "intentional wrong," notwithstanding workers' allegations in their proposed amendment and supplemental complaint that employers had failed to remove workers from peril and intentionally withheld information from workers about dangerous conditions in which they worked and that they were motivated by their desire to foster an atmosphere of ignorance among workers in order to insure uninterrupted work and profits. N.J.S.A. 34:15-8.
STATUTE ESTABLISHES SHIELD FOR EMPLOYER
"The New Jersey workmen's compensation statute, like all workmen's compensation acts, establishes a different method for determining liability than the traditional approach followed by the courts in actions at common law. It creates a presumption, rebuttable only by an express written statement to the contrary in advance of any accident, that every employment contract is governed by its article on elective compensation. N.J.S.A. 34:15-9. That article states that "compensation for personal injuries to, or for the death of, such employee by accident arising out of and in the course of his employment shall be made by the employer without regard to the negligence of the employer" according to statutory schedules for payment. N.J.S.A. 34:15-7. The quid pro quo for this statutory declaration of employer liability for all employee injuries is to be found in N.J.S.A. 34:15-8, which provides that the agreement of the parties to adhere to the article on elective compensation shall normally bar the pursuit of other remedies against the employer. It reads: Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee himself and for compensation for his death shall bind his personal representatives, his widow and next of kin, as well as the employer, and those conducting his business during bankruptcy or insolvency." 492 F. Supp. 498, 500.
ADHERENCE TO SAFETY STANDARDS: DELIBERATE INTENT
Employee injured by exposure to chemicals brought suit against employer/chemical company. The United States District Court for the Southern District of West Virginia, Charles H. Haden, II, Chief Judge, 620 F.Supp. 428, entered judgment notwithstanding verdict for chemical company, and stay was denied, 622 F.Supp. 1065. On appeal, the Court of Appeals, Sprouse, Circuit Judge, held that:
in determining whether chemical company acted with "deliberate intention" in causing employee's injuries so as to lose its immunity from tort liability under Workers' Compensation Act, trial court properly separated employee's occupational duties into distinct components for which individualized safety standards and procedures could be devised, and
even assuming that chemical company violated procedures described in its internal safety data sheets, that finding alone was not enough to support conclusion that any "commonly accepted" and "well-known safety standard" was violated. Handley v. Union Carbide Corporation, 804 F.2d 265 (4th Cir. 1986).
VIOLATION OF SAFETY REGULATION NOT DELIBERATE INTENT
Even if chemical company violated procedures described in its internal safety data sheets resulting in employee's exposure to chemicals, that finding alone was not enough to support conclusion that any "commonly accepted" and "well-known safety standard" was violated and that as result chemical company lost its immunity from tort liability normally available to employers under West Virginia Workers' Compensation Act, as there was no proof that safety rules at issue extended anywhere beyond company's own facilities. W.Va.Code, 23-1-1 et seq., 23-4-2, Id.
INTENTIONAL TORT OR WILFUL, WANTON AND RECKLESS MISCONDUCT
The West Virginia Workers' Compensation Act contains an exception to the covered employer's immunity from suit for workplace injuries inflicted on employees with "deliberate intention." [FN17] In 1978, the West Virginia Supreme Court of Appeals issued a far-reaching decision in Mandolidis v. Elkins Industries, 161 W.Va. 695, 246 S.E.2d 907 (1978). It ruled that deliberate intention "must be held to mean that an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or wilful, wanton, and reckless misconduct." Id. at 706, 246 S.E.2d at 914. Handley at 270.
STATUTORY CHANGE
In 1983, the West Virginia Legislature amended the compensation statute with the express intent of modifying the standard adopted in Mandolidis. The statute now states that "in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of wilful, wanton and reckless misconduct." Handley at 270.
STATUTORY ELEMENTS
W.Va.Code s 23-4-2(c)(1) (1985 Replacement Vol.) provides in its entirety that: It is declared that enactment of this chapter and the establishment of the workmen's [workers'] compensation system in this chapter was and is intended to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee except as herein expressly provided, and to establish a system which compensates even though the injury or death of an employee may be caused by his own fault or the fault of a co-employee; that the immunity established in sections six and six-a [ss 23-2-6 and 23-2-6a], article two of this chapter, is an essential aspect of this workmen's [workers'] compensation system; that the intent of the legislature in providing immunity from common law suit was and is to protect those so immunized from litigation outside the workmen's [workers'] compensation system except as herein expressly provided; that, in enacting the immunity provisions of this chapter, the legislature intended to create a legislative standard for loss of that immunity of more narrow application and containing more specific mandatory elements than the common law tort system concept and standard of wilful, wanton and reckless misconduct; and that it was and is the legislative intent to promote prompt judicial resolution of the question of whether a suit prosecuted under the asserted authority of this section is or is not prohibited by the immunity granted under this chapter. Handley, at 270.
ALTERNATE METHODS OF PROVING DELIBERATE INTENT-"CONSCIOUSLY, SUBJECTIVELY & DELIBERATELY"
An employer may be held liable if it acts "with a consciously, subjectively and deliberately formed intention to produce the specific result of injury or death to an employee." W.Va.Code s 23-4-2(c)(2)(i) (1985 Replacement Vol.).
JURY INFERENCE
The other provision in the statute from which a jury could infer a deliberate intent to injure. W.Va.Code s 23-4-2(c)(2)(ii)(A)-(E) (1985 Replacement Vol.) This alternate section provides that an employer will be held to have acted with the requisite "deliberate intention" if the plaintiff/employee proves each of the following elements:
(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;
(B) That the employer had a subjective realization and an appreciation of the existence of such specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by such specific unsafe working condition;
(C) That such specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and well-known safety standard within the industry or business of such employer, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;
(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C) hereof, such employer nevertheless thereafter exposed an employee to such specific unsafe working condition intentionally; and (E) That such employee so exposed suffered serious injury or death as a direct and proximate result of such specific unsafe working condition. W.Va.Code s 23-4-2(c)(2)(ii)(A)-(E) (1985 Replacement Vol.). Handley, at 270.
EVIDENCE LACKING
"The plaintiffs make the final argument that Carbide sets the safety standards for the chemical industry as a whole because of its position as industry leader. This argument is similar to one made before the trial court. We agree with the trial court that there was no evidence upon which the jury could find that the safety rules at issue here extended anywhere beyond Carbide's own facilities. Internal safety data of a single company might well be probative in establishing existing industry standards in some areas, but as the district court noted, the Handleys presented no evidence of Carbide's size in relation to the rest of the chemical industry. There was also no evidence of the effects Carbide's *274 internal safety rules had on the rest of the industry, and the record is equally bare of evidence from which the jury could infer the weight Carbide's policies carried within the industry. The bald assertion that Carbide is one of the leaders in its field is not sufficient--particularly since it was not conveyed to the jury in the form of admissible evidence. Under these circumstances, we think that the introduction into evidence of Carbide's safety sheets alone was not enough to support a jury finding of an industry or business safety standard. Handley, at 273.
BLANKENSHIP RULE - "INTENTIONAL TORTIOUS ACT"
"Intentional tortious act" is all that is necessary to bypass the exclusivity bar. Eight current or former employees and a number of their spouses appealed from a judgment of the Court of Appeals, Hamilton County, affirming holding of the Court of Common Pleas, Hamilton County, dismissing action against employer and defendant employees by plaintiff employees seeking compensatory and punitive damages arising out of their exposure to fumes and otherwise noxious characteristics of certain chemicals. The Supreme Court, William B. Brown, J., held that:
an employee is not precluded by section of State Constitution or by sections of Workers' Compensation Act from enforcing his common-law remedies against his employer for an intentional tort, and
complaint stated a cause of action on theory that employees were exposed to fumes and otherwise noxious characteristics of certain chemicals within scope of their employment. Reversed and remanded. Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E. 2d 572, 23 O.O. 3rd 504 (Ohio, Mar 3, 1982) (NO. 81-402); Certiorari Denied By 103 S.Ct. 127, 74 L. Ed. 2d (U.S. Ohio, Oct 04, 1982) (NO. 82-10).
EMPLOYEE WAS NOT PRECLUDED BY STATUTE FROM SUIT AGAINST EMPLOYER FOR INTENTIONAL TORT
Neither section of State Constitution, providing that workers' compensation "shall be in lieu of all other rights to compensation," nor sections of the Act providing that "Employers * * * shall not be liable to respond in damages at common law or by statute for any injury * * * received or contracted by any employee in the course of or arising out of his employment" or that "No employee * * * shall be liable to respond in damages at common law or by statute for an injury or occupational disease, received or contracted by any other employee," preclude an employee from enforcing his common-law remedies against his employer for an intentional tort. R.C. ss 4123.01 et seq., 4123.74, 4123.741; Const.Art. 2, s 35.
BALANCE OF MUTUAL COOPERATION
"The workers' compensation system is based on the premise that an employer is protected from a suit for negligence in exchange for compliance with the Workers' Compensation Act. The Act operates as a balance of mutual compromise between the interests of the employer and the employee whereby employees relinquish their common law remedy and accept lower benefit levels coupled with the greater assurance of recovery and employers give up their common law defenses and are protected from unlimited liability. But the protection afforded by the Act has always been for negligent acts and not for intentional tortious conduct. Indeed, workers' compensation Acts were designed to improve the plight of the injured worker, and to hold that intentional torts are covered under the Act would be tantamount to encouraging such conduct, and this clearly cannot be reconciled with the motivating spirit and purpose of the Act. Id. at 577.
EMPLOYERS CANNOT DISREGARD LIVES OF EMPLOYEES
"As was stated in Mandolidis v. Elkins Industries, Inc. (W.Va.1978), 246 S.E.2d 907, 913: The workmen's compensation system completely supplanted the common law tort system only with respect to negligently caused industrial accidents, and employers and employees gained certain advantages and lost certain rights they had heretofore enjoyed. Entrepreneurs were not given the right to carry on their enterprises without any regard to the life and limb of the participants in the endeavor and free from all common law liability." Id. at 577 (Emphasis added)
EMPLOYER SHOULD NOT ESCAPE FROM PROVIDING ADDITIONAL DAMAGES
It must also be remembered that the compensation scheme was specifically designed to provide less than full compensation for injured employees. ([FN12] This court stated in State, ex rel. Crawford, v. Indus. Comm. (1924), 110 Ohio St. 271, 275, 143 N.E. 574, that: " * * * (Workers' Compensation) was never intended by the most ardent advocates of * * * (it) to give full and adequate remuneration, because this would remove much of the inducement of * * * (workers) to exercise care and caution on their own part." Damages such as pain and suffering and loss of services on the part of a spouse are unavailable remedies to the injured employee. Punitive damages cannot be obtained. Yet, these damages are available to individuals who have been injured by intentional tortious conduct of third parties, and there is no legitimate reason why an employer should be able to escape from such damages simply because he committed an intentional tort against his employee. Id. at 577.
PROMOTE A SAFER AND INJURY-FREE ENVIRONMENT
"...one of the avowed purposes of the Act is to promote a safe and injury-free work environment. (R.C. 4101.11 and 4101.12.) Affording an employer immunity for his intentional behavior certainly would not promote such an environment, for an employer could commit intentional acts with impunity with the knowledge that, at the very most, his workers' compensation premiums may rise slightly. Id. at 577.
MICHIGAN APPROACH: DENIAL OF EMPLOYER'S BREACH OF CONTRACTUAL DUTY TO PROVIDE SAFE WORKING CONDITIONS BUT "TRUE INTENTIONAL TORT" TEST GOVERNS
"Worker and his wife sued employer under various theories for damages arising from worker's exposure to chemicals on job. The Circuit Court, Iron County, Robert V. Payant, J., granted summary judgment for employer, and worker and his wife appealed. The Court of Appeals, Beauchamp v. Dow Chemical Co., 140 Mich.App. 699, 364 N.W.2d 286, affirmed in part and reversed in part. Employer appealed. The Supreme Court, Levin, J., held that:
exclusive remedy provision of Workers' Disability Compensation Act did not preclude action by worker who alleged that employer committed intentional tort against him;
employer's conduct would not be barred by exclusivity provision if employer intended act that caused injury and knew that injury was substantially certain to occur from act;
wife could maintain action against employer for loss of consortium; and
exclusivity provision precluded common-law civil action for breach of contractual promise to provide safe working conditions. Beauchamp v. Dow Chemical Co., 398 N.W.2d 882, 427 Mich. 1, 55 U.S.L.W. 2424 (Mich. 1986)
CONTRACT REMEDY BARRED
"...The contract claim is barred by the exclusive remedy provision.... Id. at 884
TEST OF WHETHER EMPLOYER INTENDED ACT THAT CAUSED INJURY
In determining whether employer's conduct which results in injury to worker was "intentional," thereby allowing worker to bring common-law civil action against employer notwithstanding exclusivity provision of Workers' Disability Compensation Act, test is whether employer intended act that caused injury and knew that injury was substantially certain to occur from act; declining to follow Jones v. VIP Dev. Co., 15 Ohio St.3d 90, 472 N.E.2d 1046; Griffin v. George's Inc., 267 Ark. 91, 589 S.W.2d 24; Serna v. Statewide Contractors, 6 Ariz.App. 12, 429 P.2d 504. M.C.L.A. ss 418.101 et seq., 418.131.
PURPOSE OF WORKERS' COMPENSATION LEGISLATION WAS TO COMPENSATE FOR ACCIDENTAL NOT INTENTIONAL INJURY
"The origin and evolution of the workers' compensation act indicates that the legislation, including the exclusive remedy provision, was designed to provide an alternative compensation system respecting accidental and not intentional injuries....In 1911, the Legislature created a "commission of inquiry to make the necessary investigation, and to prepare and submit a report ... setting forth a comprehensive plan and recommending legislative action providing compensation for accidental injuries or death of workmen arising out of and in the course of employment...." The commission's "creation resulted from a wide dissatisfaction with the present system of employers' liability for negligence is to employees [sic]." At the end of the nineteenth century, "the industrial accident rate had reached alarming proportions." As plants grew larger and more dangerous, injuries became more frequent, and proof that injury was due to the fault of the employer without contributory fault of the employee was more difficult. An increasing number of injuries were left uncompensated. Dean Prosser wrote that between seventy and ninety-four per cent of the injuries were uncompensated. A national commission found that workers recovered for fifteen per cent of their injuries even though seventy per cent were caused by employer negligence or workplace conditions. Id. at 884-5.
UNJUST FOR SAFE EMPLOYERS TO PAY FOR INTENTIONAL MISCONDUCT OF OTHERS
"Including intentional torts within the exclusivity provision would mean the Legislature intended to limit substantially an employee's recovery for intentional injury inflicted by the employer. It would mean that the Legislature not only intended to limit the employer's liability, but also intended to allow "an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers." Intentional misconduct would seem to be the type of behavior the Legislature would most want to deter and punish. Including intentional torts within the exclusivity provision would in that sense be counterproductive....Accidents are an inevitable part of industrial production, intentional torts by employers are not. In certain instances, there would be no remedy at all under the...analysis for employees who were the victims of intentional torts. An employer, for example, who intentionally disfigured an employee without affecting the employee's ability to work would not be subject to liability under the workers' compensation act or, under...[the] analysis, subject to civil suit. Id. at 889.
MOST STATES DO NOT BAR A CIVIL ACTION WHERE AN INTENTIONAL TORT IS ALLEGED BY THE EMPLOYEE
Shearer v. Homestake Mining Co., 557 F.Supp. 549, 553 (D.S.D.1983), aff'd, Shearer v. Homestake Mining Co., 727 F.2d 707 (CA 8, 1984); Petramalo, "Employer total liability," 1986 ABA National Institute on Workers' Compensation, p 167 ("[i]n most states, common-law suits alleging that the employer has 'intentionally' inflicted an injury or illness upon plaintiff employees will not be barred by the exclusivity principle"). Herrold, n 8 supra at 138 ("[a] majority of courts have held that an employer who deliberately harms his employee is not shielded from liability by the exclusivity of the particular jurisdiction's workers' compensation remedy").
PERMITTED EVEN THOUGH STATUTORILY EXCLUDED
See, e.g., N.J.Stat.Ann., s 34:15-8 (New Jersey Workmen's Compensation Act); South Dakota Codified Laws Ann., s 62-3-2; Ky.Rev.Stat., P 342.015; Louisiana Rev.Stat.Ann., s 23:1032; Oregon Rev.Stat., s 656.156; Wash.Rev.Code, s 51.24.020; W.Va.Code, s 23-4-2; Arizona Rev.Stat., s 23-1022; Lavin v. Goldberg Bldg. Material Corp, 274 A.D. 690, 693, 87 N.Y.S.2d 90 (1949), app. den. 275 A.D. 865, 89 N.Y.S.2d 523 (1949).
INTENTIONAL TORT ACTIONS MAY BE BROUGHT EVEN THOUGH THERE IS AN EXCLUSIVITY PROVISION AND NO STATUTORY LANGUAGE EXPLICITLY ALLOWING
"...the courts have found that intentional tort actions can be brought even though there is an exclusivity provision and there is no statutory language explicitly allowing civil actions for intentional torts. In re Johns-Manville, n. 39 supra; Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985); Blankenship v. Cincinnati Milacron Chemicals, 69 Ohio St.2d 608, 614-615, 433 N.E.2d 572 (1982); Heskett v. Fisher Laundry & Cleaners, 217 Ark. 350, 230 S.W.2d 28 (1950); Mingachos v. CBS, Inc., 196 Conn. 91, 491 A.2d 368 (1985); Boek v. Wong Hing, 180 Minn. 470, 231 N.W. 233 (1930); Austin v. Johns-Manville Sales Corp, 508 F.Supp. 313, 316 (E.D.Me.1981) (interpreting Maine workers' compensation law). Readinger v. Gottschall, 201 Pa.Super. 134, 191 A.2d 694 (1963). Id. at 889
A MINORITY OF STATES BAR COMMON-LAW SUITS
"There are some states that hold that common-law suits are precluded by the exclusivity provisions. See, e.g., DeArman v. Ingalls Iron Works Co. Inc., 258 Ala. 205, 61 So.2d 764 (1952); Eason v. Frontier Air Lines, Inc., 636 F.2d 293 (CA 10, 1981); Nutt v. E.I. duPont deNemours, 441 A.2d 226 (Del.1982); Nutt v. A.C. & S., Inc., 466 A.2d 18 (Del.1983); Wilkinson v. Achber, 101 N.H. 7, 131 A.2d 51 (1957); Parker v. Energy Development Corp., 691 P.2d 981 (Wyo.1984). Id. at 890.
DECEIT
That while the workers' compensation law barred employee's action at law for his initial injury, employee's allegations that employer fraudulently concealed from him, and from doctors retained to treat him, as well as from the state, that he was suffering from a disease caused by ingestion of asbestos, thereby preventing him from receiving treatment for the disease and inducing him to continue to work under hazardous conditions, were sufficient to state a cause of action for aggravation of the disease, as distinct from the hazards of the employment, which caused him to contract the disease, and employee was entitled to bring an action at law against his employer for such aggravation. Johns-Manville Products Corporation v. Contra Costa Superior Court, 165 Cal.Rptr. 858, 612 P.2d 948 (1980).
CORPORATE KNOWLEDGE IN SINCE 1924
Defendant is engaged in mining, milling, manufacturing, and packaging asbestos. Plaintiff worked in its Pittsburg, California, plant for 29 years beginning in February 1946, and he was continuously exposed to asbestos during that period. As a result of the exposure, he developed pneumoconiosis, lung cancer, or other asbestos-related illnesses. The defendant corporation has known since 1924 that long exposure to asbestos or the ingestion of that substance is dangerous to health, yet it concealed this knowledge from plaintiff, and advised him that it was safe to work in close proximity to asbestos. It failed to provide him with adequate protective devices and did not operate the plant in accordance with state and federal regulations governing dust levels. Id. at 950. See also, Lilienfeld, D., "The Silence: The Asbestos Industry and Early Occupational Cancer Research--A Case Study", Am J Public Health 1991; 81:791-900.
DOCTORS UNQUALIFIED
The doctors retained by defendant to examine plaintiff were unqualified, and defendant did not provide them with adequate information regarding the risk of asbestos exposure. It failed to advise these doctors of the development of pulmonary disease in plaintiff or of the fact that the disease was the result of the working conditions at the plant, although it knew that his illness was caused by exposure to asbestos. Id. at 951.
EMPLOYER FAILED TO FILE A REPORT
Defendant wilfully failed to file a First Report of Occupational Injury or Illness with the State of California regarding plaintiff's injury, as required by law. Had this been done, and if the danger from asbestos had been revealed, plaintiff would have been protected. Each of these acts and omissions was done falsely and fraudulently by defendant, with intent to induce plaintiff to continue to work in a dangerous environment. Id. at 950-951.
EMPLOYEE IGNORANT OF RISKS
Plaintiff was ignorant of the risks involved, and would not have continued to work in such an environment if he had known the facts. Id. at 951.
EMPLOYER FRAUDULENTLY CONCEALED INFORMATION
Employees brought civil suits against employer and company physicians, asserting that defendants, with knowledge of adverse health consequences of asbestos use and exposure and as part of concerted plan for profit, deliberately exposed employees to dangerous work environment on certification to the Appellate Division, the Supreme Court, Clifford, J., held that: (1) employees' initial resulting occupational diseases were not actionable in additional civil suit, but (2) allegations that defendants fraudulently concealed knowledge of already contracted diseases stated distinct, actionable, civil claim. Millison v. E.I. du Pont de Nemours & Company, 101 N.J. 161, 54 U.S.L.W. 2326 (NJ 1985).
TEST TO DETERMINE THE LEVEL OF RISK INCLUDES CONDUCT
Conduct of employer, but also context in which such conduct takes place: "may the resulting injury or disease, and the circumstances in which it is inflicted on the worker, fairly be viewed as a fact of life of industrial employment, or is it rather plainly beyond anything the legislature could have contemplated as entitling the employee to recover only under the Compensation Act?" Id., at 514. "Those corporations that would use their medical departments as a tool to prevent employees from learning of known injuries that are substantially certain to be aggravated by lack of disclosure must be deterred from embarking on such a course of conduct." Id., at 517.
APPLICATION OF INTENTIONAL WRONG EXCEPTION
"Intentional wrong" exception of exclusive remedy provision of Workers' Compensation Act, N.J.S.A. 34:15-8, applies to employers as well as co-employees; and where employer is corporation, actions taken by certain corporate officers and supervisors are actions taken by corporate employer.
Each year the du Pont doctors would give employees complete physical examinations, including chest x-rays, pulmonary function tests, electrocardiograms, urine analyses, and blood tests. Defendants fraudulently concealed plaintiffs' asbestos-related diseases and sent them back into the workplace, where their initial infirmities were aggravated by additional exposure to asbestos. Id. at 509.
DUAL REMEDY BEST APPROACH
Our view is that in light of the Compensation Act's purpose of assisting disabled workers, the best approach is to allow a plaintiff to process his workers' compensation claim without forfeiting the opportunity to establish that he was injured as a result of conduct that amounted to an intentional wrong, entitling him to seek damages beyond those available in workers' compensation. If, however, a plaintiff should prevail in his suit based on intentional wrong, he would not be entitled to keep the entire amount of his compensation award as well as his civil suit remedy. That double recovery is to be avoided is evident from so much of the Compensation Act as demands that compensation claimants who have recovered from third parties be required to reimburse their employer or its insurance carrier for compensation payments already made. N.J.S.A. 34:15-40. Id., at 519.
DEFAMATION
Evidence that the superintendent of a store made false statements accusing employees of various thefts in malice and without good faith supported verdicts for the employees and that $2,000 compensatory damages and $500 punitive damages to each for physical illness, humiliation and loss of employment were not excessive. Braman v. Walthall, 215 Ark. 582, 225 S.W. 342 (Ark. 1949)
EMPLOYER WAS ABUSIVE
"She gave the following testimony as abstracted in appellees' brief: 'The first thing he asked me was if I had a husband and I told him no. Then he started in. He kept me in the store until six o'clock--thirty minutes *345 after closing time. He told me to be back at 9:00 in the morning. I asked him if he was accusing me of taking anything, and he just told me to come back in the morning to get my money. I couldn't get it then--it was all closed. I got in the store at quarter to nine Friday, September 26, and in about ten minutes from then I was in his office back there and he began on me. He had these tickets on his desk and I did not have anything to do with tickets. All I did was stamp tickets. I did not have a sales book. He said 'You took this money and you made a duplicate ticket, leaving off the two dates and putting on these other two. Therefore you stole $11.29, didn't you?' I said, 'No.' He said 'Myrna, don't lie to me.' I said, 'I am telling you the truth', and he called me everything in the world he could. He shook his finger at me and hit me so many times on the end of my nose until there is a mark there. He said I had taken material and I had stolen money from the store to the extent of $5,000. I kept telling him no. I was crying. I tried to leave. He grabbed me by the arm and pushed me down and said I wasn't leaving. I wanted a drink. I was sick at my stomach. He ordered me not to leave the room--I was to sit there until he finished with me. My arm was black and blue. He would get right up and say, 'You little lying thief, you are going to tell me or you are going to pay the price.' Id., at 344.
EMOTIONAL STRESS ACTION NOT COMPENSABLE IF WORKERS' COMPENSATION ACTION NOT VIABLE
Personal injury action brought by employee against employer. On motion of employer for judgment on the pleadings, the District Court, Hemphill, J., held that sole and exclusive remedy of plaintiff was not before the South Carolina Industrial Commission by virtue of fact that incidents referred to in the complaint, and out of which accident arose, took place while she was at work on premises of, and as an employee of, the defendant, where circumstances of injury in question, including fact that plaintiff was not disabled and lost no time as result of the injury, showed that the injury was not compensable under the South Carolina Workmen's Compensation Act. Ritter v. Allied Chemical Corporation, 295 F. Supp. 1360 (D.S.C. 1968) "In her deposition she states that the results were a scratch on the hand and certain soreness. She does not claim any of the disabilities, or the contemplated disfigurement contemplated and treated by South Carolina as compensable under the provisions of Section 72-153, of the South Carolina Code. Id., at 1361.
INSURANCE CARRIER HARASSMENT PERMITTED CLAIM FOR DECEITFUL INVESTIGATION
Action by employee against his employer's workmen's compensation insurer and private investigators employed by the insurer for negligently exhibiting at workmen's compensation hearing motion pictures taken of employee while she was under surveillance, which showing allegedly caused physical and mental breakdown, and for assault, conspiracy and intentional infliction of emotional distress and for punitive damages. The Supreme Court, Sullivan, J., held, inter alia, that workmen's compensation insurer did not become 'person other than the employer,' and thus subject to suit at law, by allegedly negligently failing to control its investigators in carrying out nonmedical investigation of claim. Unruh v. Truck Insurance Exchange, 7 Cal. 3d 616, 102 Cal. Rptr. 815 (1972). "A deceitful investigation, in place of an honest one, frustrates the laudable objectives of the workmen's compensation law. Permitting the employee to maintain an action at law for the insurer's intentional torts will subserve these objectives but at the same time will not discourage the insurer from fulfilling its proper role in the compensation scheme. 102 Cal. Rptr, 815, 825, 498 P.2d 1063, 1073.
INSURANCE CARRIER'S INTENTIONAL DELAY OF PAYMENT
The Alaska Supreme Court, Rabinowitz, C. J., held that statute requiring reimbursement of total amounts paid by compensation carrier when damages are recovered by employee from third party does not allow for prorata deduction of attorney fees, that intentional misconduct by an employer or its compensation carrier will destroy its immunity from suit for delay in making compensation payments, and that the carrier should have been awarded attorney fees to the extent that it prevailed on the reimbursement issue. Stafford v. Weschester Fire Insurance Company of New York Inc., 526 P.2d 37 (1974). If an employer or its workmen's compensation carrier engages in tortious conduct which deprives a workman of benefits the workman is entitled to receive and which goes beyond the bounds of untimely payments, immunity from suit provided by the Workmen's Compensation Act is lost. AS 23.30.155. Disapproved of by Cooper v. Argonaut Ins. Companies, 556 P.2d 525 (Alaska, Nov 08, 1976), Overruling Recognized by Van Biene v. ERA Helicopters, Inc., 779 P.2d 315 (Alaska, Aug 18, 1989) (NO. S-2571, 3485) .
SEXUAL HARASSMENT CLAIM DID NOT PIERCE THE "EXCLUSIVITY BAR"
Employee brought action under Civil Rights Act of 1964 and Wisconsin Fair Employment Act against employer and three of its supervisory personnel as result of alleged sexual harassment, and related tort and labor claims against employer, supervisory personnel, and certain co-workers. The United States District Court for the Eastern District of Wisconsin, Myron L. Gordon, ., 601 F.Supp. 139, dismissed tort claims against employer and supervisory personnel, entered judgment against employer on sexual harassment claim, dismissed claims against co-workers for lack of subject-matter jurisdiction, and denied attorney fees to employee, and employee appealed. The Court of Appeals, Harlington Wood, Jr., Circuit Judge, held that:
tort claims against employer and supervisory personnel were barred by Wisconsin Worker's Compensation Act;
district court did not abuse discretion in dismissing pendent state claims against co-workers; and
district court's total denial of attorney fees was abuse of discretion. Zabkowicz v. The West Bend Company, 789 F. 2d 540 (7th Cir. 1985), 54 U.S.L.W. 2599, 40 Fair Empl. Prac. Cas. (BNA) 1171, 40 Empl. Prac. Dec. P 36,089, 4 Fed.R.Serv.3d 1229. Under Wisconsin law, emotional stress caused by sexual harassment was compensable under Worker's Compensation Act and, therefore, tort claims against employer and its supervisory personnel were barred by exclusivity provision of Act, notwithstanding foreseeability of harassment. W.S.A. 102.01(2)(c), 102.03(1, 2).
EMPLOYER CONTRIBUTORILY NEGLIGENT
Where an employee was injured by a press brake, a product liability claim could be brought against the employer. The employer was provided with a complete operations manual, three safety signs to be posted on the machine and the American National Standards Institute ("ANSI") regulations from the product's manufacturer. All items emphasized safety. The product's manufacturer also sent a service representative to the employer's premises and noted that the safety tags were installed. "So many of these costly suits against equipment manufacturers could be forestalled if either the Workers' Compensation remedy were more realistic, the tort law compensation were more circumscribed, or if the common law suit exception were expanded to permit indemnification claims against an employer by a third party which is found liable for less than a fixed percentage of liability. Seeley v. Cincinnati Shaper Company, Ltd., ____N.J. Super._____, _____A. 2d ______(NJ App. Div. 1992), Docket A-3190-90T1, Decided February 14, 1992.
Presented at: National Workers’ Compensation Convention, Hyannis MA – Ju;ly 22, 1992.