Hayden Dodge v. Didion Milling, Inc.Hayden Dodge v. Didion Milling, Inc.
Samuel A. Christensen Clerk of Court of Appeals
NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.
A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See
APPEAL from an order of the circuit court for Columbia County: W. ANDREW VOIGT, Judge. Affirmed.
Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in
¶1 PER CURIAM. The plaintiffs in this civil action bring personal injury and wrongful death claims against Didion Milling and Nationwide Mutual Insurance Company, Didion Milling’s workers’ compensation insurer (collectively, Didion). The plaintiffs consist of the family members of employees who died as a result of an explosion that occurred at a facility owned by Didion and of employees who were injured in the explosion.1 The employees challenge the ruling of the circuit court granting summary judgment in Didion’s favor and dismissing all of the employees’ claims against Didion. The employees argue that the court erred by concluding their claims were barred on the ground that the claims are subject to the exclusive remedies available under Wisconsin’s Workers’ Compensation Act (“the compensation act”). See
¶2 More specifically, the employees’ principal argument on appeal is that, because there is a genuine issue of fact regarding whether the explosion is an “accident” for purposes of the compensation act, summary judgment was improperly granted for Didion. If the explosion is not an accident, then workers’
¶3 The employees also argue that there is an additional basis to deny summary judgment dismissing the claims of a particular Didion employee, Nicholas Booker, who was injured as a result of the explosion. Booker came to the site of the explosion after it occurred in order to help rescue coworkers, although he was not working a shift for Didion at that time. The employees argue that this conduct was outside the scope of Booker’s employment duties, and therefore, the exclusive remedies of the compensation act do not apply. Under pertinent case law, we conclude that Booker’s conduct grew out of and was incidental to his employment.
¶4 Given our conclusions, there are no genuine and material issues of fact preventing the applicability of the compensation act’s exclusive remedies to the employees’ claims, and the circuit court properly granted Didion’s motion to dismiss the action, under summary judgment standards, for failure to state a claim. Accordingly, we affirm.
BACKGROUND
¶5 On May 29, 2017, a fire occurred in a corn milling facility (the mill) owned and operated by Didion Milling. That night, after the fire had been put out, production at the mill was resumed. Two days later, on May 31, another fire started inside the mill, this time resulting in an explosion that resulted in the deaths of five Didion employees and injuries to at least a dozen other Didion employees.
¶7 Didion moved to dismiss the employees’ claims against it based on what Didion argued was the applicability of exclusive remedies under the compensation act for the employees’ deaths and injuries. The circuit court left this motion unresolved while it permitted the parties to engage in limited discovery related to the issue of whether workers’ compensation remedies exclusively apply.
¶8 Following that discovery, Didion renewed its motion to dismiss, now under summary judgment standards. See
¶9 The employees opposed Didion’s motion based on two theories, one that applies to all of the employees killed or harmed in the explosion, and another that applies only to Booker. With respect to all of the killed or injured employees, they argued that there is a genuine issue regarding whether the explosion constitutes an “accident,” which is one of the “conditions of liability” needed for the exclusive workers’ compensation remedies to apply. See
STANDARD OF REVIEW AND APPLICABLE LEGAL PRINCIPLES
¶11 “We review summary judgment decisions de novo, applying the same methodology as the circuit court.” Peterson v. Arlington Hosp. Staffing, Inc., 2004 WI App 199, ¶5, 276 Wis. 2d 746, 689 N.W.2d 61. “[S]ummary judgment is appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id.;
¶12 As noted, when conditions of liability specified in
¶13 Pursuant to
- the employee sustains an injury;
- at the time of injury, both the employer and employee are subject to the [compensation act];
- at the time of the injury, the employee is performing service growing out of and incidental to their employment;
- the injury is not intentionally self-inflicted; and
- the accident or disease causing injury arises out of the employment.
See Graef, 397 Wis. 2d 75, ¶11 (citing
DISCUSSION
¶14 The employees renew their arguments from the circuit court in opposition to summary judgment, namely, that their claims do not satisfy all of the conditions of liability needed for the exclusive compensation act remedies to apply. There is no dispute that several of the conditions of liability in
I. The Explosion as an “Accident”
¶15 The employees argue that there is a genuine issue of fact regarding whether the explosion here constitutes an “accident” for purposes of
A. Employer Intentional Conduct
¶16 The employees’ argument about intentional conduct relies in large part on this court’s decision in Lentz. We summarize Lentz, then discuss how it has been clarified in subsequent case law to limit its application on a broader scale in the compensation act context, before explaining that Lentz is inapplicable here.
¶18 One aspect of our conclusion was based on the purposes of the compensation act, which include providing financial and medical benefits to employees who are injured on the job and “allocat[ing] the financial burden to the most appropriate source, the employer, and ultimately the consumer of the product.” Id. (citation omitted). We reasoned that “[w]hen an employer intentionally injures an employee,” allocation of the resulting financial burden to the public, ultimately as the consumer, is inappropriate. Id. Instead, “the burden of compensating the employee for the consequences of the intentional act should lie exclusively with the employer,” “particularly … with regard to sexual harassment cases.” Id.
¶19 As noted above, our supreme court overruled Lentz on grounds not relevant to the issues presented in this appeal. Maple Grove Country Club, 386
¶20 In Peterson, we summarized Lentz as “simply a narrow exception” to the general rule that whether an injury-causing event is an “accident” does not depend on whether the event was the result of an intentional or an unintentional act. See Peterson, 276 Wis. 2d 746, ¶¶18, 20-21. Instead, under the general rule, the intent of a person who causes the harm does not necessarily dictate whether the pertinent event is an accident because the definition of “accident” is viewed from the perspective of the injured employee, not the employer. See Lentz, 195 Wis. 2d at 469 (discussing Jenson v. Employers Mut. Cas. Co., 161 Wis. 2d 253, 263, 468 N.W.2d 1 (1991)). The narrow exception provided for in Lentz concerned the “unique situation” when a sole proprietor, who is the employer, “has intentionally caused the employee’s injury.” Peterson, 276 Wis. 2d 746, ¶20. In that scenario, we determined that the sole proprietor should not be able to use “the [compensation act] as a shield to protect himself or herself from liability for intentional acts against an employee.” Id.
¶21 Applying this understanding of Lentz here, the employees’ claims concern Didion, a corporate entity, which the employees show committed all
¶22 The following example identified by the employees comes closest to identifying intentional conduct by the employer. The employees point to evidence from the deposition testimony of one Didion employee who alleges that, after the May 29 fire, he was told to go back to work and that “one of the owners of the company was there and they restarted production.” But the employees do not develop an argument from this evidence that explains how we can apply the “narrow rule” in Lentz to the example. That is, the employees do not allege or provide a theory for how the alleged decision and order to return to work and resume production was the direct action of Didion, as opposed to the action of an agent of Didion or a co-employee.
¶23 Other instances of intentional conduct alleged by the employees are yet more clearly related to the actions of individual agents of Didion or co-employees and therefore fall even further outside the scope of the rule in Lentz. Included in this alleged conduct are Didion co-employees knowingly recording and sharing with state regulators false information related to the safe operation of the mill. The employees emphasize that many of these allegations appear in a plea agreement between Didion and federal prosecutors, in which Didion’s CEO admitted that the conduct of providing false information was “in all respects
¶24 Moreover, each of the intentional acts that the employees allege Didion took to cause the explosion are part of what the employees contend was a broader failure to take adequate safety measures in the mill, which in turn allegedly caused the explosion, rather than the owners of Didion engaging in direct acts to intentionally cause the explosion. The factual scenario here differs in that respect from Lentz, which further undercuts its application. As noted, in Lentz, the intentional conduct at issue was the sexual harassment of an employee committed directly by the employer, who was the sole owner of the business where the employee worked, which is where most of the harassing conduct
¶25 Here, the “intentional acts” that the employees allege involve Didion’s failure to maintain a safe working environment, such as failing to install dust control and fire suppression systems, which the employees’ argue eventually led to the explosion. These are not allegations that Didion intentionally and deliberately engaged in conduct that directly caused the explosion. In contrast to Lentz, when employee injuries result in this type of an unsafe work environment claim, the injuries can be covered by the compensation act’s exclusive remedies, provided that they resulted from unforeseen “accidents,” as we address below. See Knoll v. Shaler, 180 Wis. 66, 192 N.W. 399 (1923) (compensation act covered claim that employer failed to provide a safe work environment by forcing employee to work in a room with combustible and flammable materials and sparking equipment that led to an explosion).
¶26 The employees note that, in another decision of this court, which was issued before Peterson, we described some of the reasoning in Lentz in broad terms. Specifically, in Cohn v. Apogee, Inc., 225 Wis. 2d 815, 819, 593 N.W.2d 921 (Ct. App. 1999), we cited Lentz for the proposition that “[h]arm to an employee caused by an employer’s intentional conduct … is not an ‘accident.’” However, it is not reasonable to interpret this statement as expanding Lentz’s reasoning beyond its “unique situation” concerning a sole proprietor and employer engaging in intentional acts that injured an employee, especially in the wake of
¶27 In reply, the employees argue that the references to sole proprietors in Peterson were meant only to distinguish claims of intentional harm caused by sole proprietors from claims of intentional harm against other kinds of individuals, namely co-employees. But as we explain above, Peterson has been recognized by our supreme court as “limit[ing]” Lentz, see Maple Grove Country Club, 386 Wis. 2d 425, ¶48 n.14, which is consistent with Peterson speaking in unqualified terms when interpreting Lentz to narrowly apply to “a sole proprietor, and therefore, the employer.” Peterson, 276 Wis. 2d 746, ¶20. Beyond this, the employees do not explain how their interpretation of Peterson helps them here. For example, they do not explain how the decisions and actions of any individual reflected in the summary judgment materials should be treated as intentional acts by Didion.
¶28 In sum, Lentz is distinguishable from the facts here, and does not place the employees’ claims regarding intentional acts causing the explosion outside of the scope of “accidental” injuries covered by exclusive compensation act remedies. Setting aside the intentional acts topic, this leaves the issue of whether, under more generally applicable case law in the workers’ compensation context, the explosion constitutes an “accident” because it was foreseeable and expected by the employees.
¶29 For purposes of applying
¶30 Despite the broad definition of accident applied by Wisconsin courts in interpreting the compensation act, an accident does not “encompass[] every occurrence or event which befalls the employee while performing service growing out of or incidental to his employment. To so define ‘accident’ … would be losing sight of the legislative purpose” for workers’ compensation. School Dist. No. 1, 62 Wis. 2d at 375; see also County of Dane v. LIRC, 2009 WI 9, ¶35, 315 Wis. 2d
¶31 Here, applying this definition of “accident,” we conclude that the summary judgment materials do not give rise to a genuine issue of fact that the explosion was something other than a “fortuitous event” or “befalling” of the kind that was unforeseen by the employees, constituting an “accident” under
¶32 Booker’s testimony provides an example of a relatively more confident prediction that there would be an explosion, although even then he did not testify that he knew when or how serious such an event would be. He testified that he “didn’t know at exactly the time it was going to happen; but during [his] employment with Didion, [he] genuinely believed there would be an explosion.” Booker developed “great concerns,” which he shared with supervisors, based on a documentary of a dust-caused explosion at a similar facility that resembled the one that ended up happening here. Employee Aguirre Martinez testified that, over the course of working at the mill for 16 years, he “saw lots of … problems,” leading
¶33 Other employees expressed less certainty about whether an explosion would occur at all. For example, employee Vander Galien testified that, “based on what other people were telling [him],” an explosion at the plant “could happen,” but he didn’t know when or how big it would be. At the time of the explosion, employee Hayden Dodge “trusted” Didion, and he, like Margaret Lane and Collin Vander Galien, did not at the time expect there to be an explosion. Indeed, as Didion now emphasizes, none of the employees who were deposed indicated that they expected an explosion to occur that night, even as some of them searched for the source of smoke in the mill—which was a typical occurrence when the employees smelled or saw smoke at the mill—shortly before it exploded.
¶34 The employees argue that any differences in views among them in their deposition testimony about the foreseeability of the mill explosion simply creates a question of fact regarding how foreseeable the explosion was. However, even looking to the most confident statements in the summary judgment materials that some kind of explosion would eventually occur, the employees do not identify evidence that the explosion that did occur, with its magnitude and timing, was foreseen and expected. As some employees testified in their depositions, if they had foreseen that an explosion was about to occur at the mill, they would have
¶35 Regarding this last point, the employees argue that requiring an expectation that a particular accident would occur at a particular time in order to fall outside of the definition of “accident” virtually guarantees that employers like Didion will be immunized from tort liability no matter how such employers contribute to the occurrence of the injury-causing event. In a related vein, the employees argue that requiring a greater level of certainty and specificity than is present in the evidence here in order to avoid applying compensation act remedies would make it “a nearly impossible task” for employees to sue in tort, again, no matter how egregious the employer’s actions.
¶36 It is not clear to us that concluding that the explosion here was an accident under summary judgment standards necessarily means that future cases with different evidence could not raise genuine issues regarding whether a particular adverse event such as an explosion occurring at or around a workplace was unforeseen and unexpected.
¶37 Setting that to the side, it undermines the employees’ arguments that, as noted above, the purpose of Wisconsin’s workers’ compensation law is to strike a “grand bargain” under which employers “receiv[e] immunity from tort liability” for covered injuries. See Graef, 397 Wis. 2d 75, ¶10 (citations omitted). Given that the compensation act “is a remedial statute that must be liberally construed to afford compensation,” it is unsurprising that the broad scope of the act creates challenges for workers to sue in tort for incidents such as the explosion here. See Estate of Torres v. Morales, 2008 WI App 113, ¶8, 313 Wis. 2d 371, 756 N.W.2d
¶38 While in some ways not directly applicable to the issues here, our supreme court’s decision in Knoll is illustrative of this last point. In Knoll, a plaintiff worker allegedly “work[ed] in a room filled with combustible and inflammable material, in which there were operated motors which were likely to and did discharge sparks.” Knoll, 180 Wis. at 66. This sparking allegedly “resulted in the ignition of the inflammable dust and inflammable and combustible materials,” causing an explosion and fire that killed the plaintiff. Id. The court in Knoll stated that “there can be no question … the injury sustained was proximately caused by accident.” Id. at 68. It is true that the issue presented in that case is not the same as here. The plaintiff in Knoll argued that the exclusivity of workers’ compensation remedies should not apply because the plaintiff’s claim was based on the allegation that the employer violated its statutory obligation to maintain a safe work environment. See id. Further, the court in Knoll did not specifically address whether the explosion and fire were unforeseen and unexpected. Id. at 68-70. Nonetheless, the facts and claim at issue in Knoll strongly imply that it is unsurprising that compensation act benefits can exclusively apply even in circumstances involving an employer failing to take reasonable steps to account for dangers that would be readily foreseeable in a general sense, for example, when the employer requires workers to be in the presence of sparking machinery near flammable materials.5
¶40 In sum on the issue of whether the explosion here constituted an “accident” for purposes of the condition of liability in
¶41 Concerning Booker’s injuries, the employees argue that, because those injuries did not occur when he was “performing services growing out of and incidental to” his employment, the exclusive remedies provision of the compensation act does not apply to him. See
¶42 The phrase in
¶43 Workers’ compensation law “must be liberally construed to include all service that can be reasonably said to come within it.” Employers Mut., 52 Wis. 2d at 522 (citation omitted); see also id. at 521-22 (noting, among other examples, that an employee injury sustained while having his own truck repaired was incidental to work because the truck was used to haul gravel for his employer).
¶44 Turning to the employees’ argument, it is not well developed. The employees appear to primarily concentrate on whether Booker’s efforts to assist his coworkers in the aftermath of the explosion were incidental to his duties as a Didion employee. To this end, they assert that his laudable efforts to “pull[] workers from a burning mill w[ere] not part” of his duties, or at least there is a question of fact regarding whether his efforts were incidental to any employment duty.
¶46 It does not undermine Didion’s point that there is no evidence that no one else with Didion asked or instructed Booker to come to the aid of his coworkers after the explosion, or that Didion did not spell out such a duty by any means. The focus of
¶47 With these legal standards as background, there is nothing in Booker’s deposition testimony raising an issue of fact as to whether his actions fit within his rendering a service to Didion in the form of helping Didion comply with its duty to rescue its workers. Booker testified that he went to the mill from his house, immediately after hearing the explosion, because he felt both a duty as an employee and as a human being to help rescue coworkers whom he reasonably believed to be in danger. There is no dispute that Booker was injured when
¶48 The employees also rely on Weiss to argue that when Booker was injured, he was not fulfilling his duties or engaged in work incidental to those duties. See Weiss, 208 Wis. 2d at 105. However, the employees are not clear about what aspect of Weiss supports their argument that Booker was not acting within the course of his employment when he was injured.
¶49 The employees may intend to argue that the fact that Booker was at home, outside of his work hours, when the explosion occurred supports concluding that he was not acting incidentally to his employment. If intended, we reject this argument as undeveloped because the employees do not explain why this fact produces a different result and they do not cite to legal authority that could support such an argument. State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992).
¶50 Moreover, case law suggests the opposite conclusion. The right to recover workers’ compensation is “not predicated upon the fact” that an employee is or is not being paid for the specific time during which the injury occurs, provided that the employee is performing a duty arising out of the employee’s employment. See Hackley-Phelps-Bonnell Co. v. Industrial Comm’n, 165 Wis. 586, 591, 162 N.W. 921 (1917). Thus, for example, in Hackley-Phelps, when a logger was directed to take a train to get his time slip after he was done with work for the day, and was injured on the train ride, this was an injury incidental to his employment. Id. at 588-90. More broadly, the “time” factor of the “course of employment” test noted in cases such as Weiss relates to the timing of an employee’s injury relative to when the employee was fulfilling a duty to the
III. Motion for Sanctions
¶51 Didion moves for an order based on frivolous briefing by the employees, pursuant to
¶52 The employees present arguments and challenge the rulings of the circuit court in a complex area of the law. We cannot conclude that the entire appeal lacks any “reasonable basis in law or equity.” See Howell, 282 Wis. 2d 130, ¶9 (citation omitted). Specifically, the employees present arguments with a reasonable basis in the particular facts of this case and the law that some of the conditions of liability in
¶53 For these reasons, we affirm the order of the circuit court granting summary judgment in Didion’s favor, and dismissing the action. We deny Didion’s motion for sanctions.
By the Court.—Order affirmed.
This opinion will not be published. See