*1 No. July 24086. [S.F. 1980.] CORPORATION,
JOHNS-MANVILLE PRODUCTS Pеtitioner, THE SUPERIOR COURT OF COUNTY, CONTRA COSTA Respondent; RUDKIN,
REBA Real Party Interest.
Counsel Moore, Clifford, Wolfe, & Larson Trutner Viadro for Cyril Petitioner. Hanna,
Warren MacLean, L. Hanna, Michael G. Lowe and Brophy, & McAleer Jensen as Amici Curiae on behalf Petitioner.
No appearance for Respondent. Anderson,
Bryce C. W. George Kilbourne and Steven Kazan for Real Party in Interest. Craddick,
Marrs A. Candland, Bond, Craddick & Charles Judith M. Mears, Weiner, Peter Gates, H. Patricia M. Robert E. Cartwright, Aitken, Pollock, Wylie Bashore, Edward I. Glen T. Stephen I. Zetter- berg, DeMeo, J. Nick Sanford M. Gage, L. Stephen Odgers, R. Harvey Levine, Leonard Sacks and Joseph Posner as Amici Curiae on behalf of Real Party Interest.
Opinion
MOSK, J. Section 3600the Labor provides Code that an employer is liable for to its out of in the course of employees arising employment, and section 3601 declares that where the conditions of exist, to recover such
workers’ right or death of an em- the exclusive an remedy against The issue to be decided in this is whether proceeding ployee.1 an action at prosecuting is barred these from torts of fraud and conspir- for the intentional work in an unsafe environ- acy knowingly ordering ment, him, and, the risk after had concealing disease, state, contracted an industrial deliberately fаiling notify him, and its or doctors retained to treat of the disease employee, connection with the employment, thereby aggravating consequences of the disease. *4 Code, All references are to the Labor unless otherwise noted. provides part: “Liability compensation provided by divi- Section 3600 in for the this sion, any any person except provided in lieu of other whatsoever to as in 3706, shall, regard negligence, against employer any an for in- Section without to exist
jury arising by employment sustained his out of and in the course of the and death, any employee injury proximately for the death of if the causes in those cases Where, following “(a) compensation where the conditions of concur: at the time of the injury, employer employee subject compensation provisions both the and the are to the of this division. Where, “(b) growing injury, employee performing at the time of the is service acting employment out of аnd incidental to his and is within the course of his employment. “(c) injury Where the is with proximately employment, caused either or with- negligence. out “(d) “(e) injury injured employee. Where the is not caused the intoxication of the injury intentionally Where the is not self-inflicted. “(f) willfully deliberately has caused his own death. Where the not and “(g) injury injured em- Where the does not arise out of an altercation in which the aggressor.” ployee physical is the initial exist, “(a) provides part: Section 3601 Where the conditions of right compensation, pursuant of this division is. to recover such to . .the against remedy employee against or injury exclusive any or death of an acting employment, except scope other of the within the of his death, shall, in addition to the employee, dependents that an or his in the event of his right against right bring an action at law for employer, to have a to apply, did in either of the damages against employee, such other as if this division following cаses: “(1) unprovoked the willful and injury proximately When the or death is caused aggression employee. such other physical act of “(2) proximately by the intoxication of such When the or death is employee. other . .. damages against such “(b) independent action for An act which will not sustain an (1) (a) may never- of this section paragraph or of subdivision other under misconduct under Section 4553 finding serious and willful theless be the basis of a 4553.1, through the em- be one whom employee is established to if such other 4553; (2) employee shall of such other charged Section such act ployer may be under death; injury or and such act cause of the proximate have been the be established to kind, nature, finding support a degree sufficient to of a and established to have been Section 4553 or 4553.1. willful misconduct under of serious and We conclude that while the workers’ law bars the em- ployee’s action at for his initial a cause of action injury, may exist of the aggravation disease because the employer’s fraudulent con- cealment of the condition and its cause. Rudkin, (hereinafter
Reba real in interest party plaintiff), brought action Johns-Manville Products Corporation, (defendant) others, 29 years alleging follows: Defendant engaged mining, milling, manufacturing, packag- California, Plaintiff in its ing asbestos. worked for 29 Pittsburg, plant he years February was to beginning continuously exposed As a period. exposure, asbestos result of the he during developed cancer, pneumoconiosis, or other asbestos-related lung illnesses.
The defendant has known since 1924 that corporation long exposure health, or the of that ingestion asbestos substance is dangerous yet it concealed this and advised him that it was knowledge plaintiff, safe to work in close It proximity asbestos. failed to him with provide *5 and did adequate protective operate plant devices in accordance state with and federal dust levels. regulаtions governing addition, In the doctors retained defendant to examine by plaintiff were and unqualified, defendant did not them with provide adequate in- formation the risk of asbestos It regarding exposure. failed to advise these doctors of of development disease in or pulmonary plaintiff the fact that the disease was result of the working conditions at the plant, it knew that his was although illness caused by exposure asbes- tos. defendant Finally, failed to file First willfully Report of Occupational or Illness with the Injury State of California regarding plaintiff’s as done, law. Had this been and if injury, required by revealed, from asbestos had danger plaintiff been would have been pro- event, “(c) In by legal agreement no either by action or whether entered into such behalf, employee liable, other or his on shall the directly held or indirectly, damages against, for awarded or for a liability incurred such other under paragraph (1) (a) or of subdivision of this section. liable, “(d) No directly indirectly, shall be held employer, or to his for in- jury death coemployee except of a injured where the dependents or his recovery (a) obtain under subdivision of this section.” joined corporations, 2Also two the action are several other Johns-Manville doctors illness, plaintiff persons fictitiously. who treated for and sued The numerous com action, fourth, plaint alleging contains nine causes of but the third and that guilty conspiracy plaintiff’s employer, defendant was at issue fraud and are here. acts omissions was done tected. Each of these falsely fraudu- defendant, with intent to induce lently by plaintiff continue to work involved, in a environment. Plaintiff was the risks dangerous ignorant and would continued to work such an if not have environment he had known the facts.
In a that separate plaintiff cause action defendant know- alleged set conspired with others to the acts forth above. ingly perpetrate complaint sought compensatory punitive damages, including the cost which plaintiff for of medical care was required to obtain order to treat his illness. alia,
Defendant filed an answer inter alleging, the action was trial barred under section 3601. It court to take requested judicial notice of an filed workers’ application by plaintiff seeking for “[ejxposure benefits asbestos.” Defendant disability for on on the moved that section 3601 judgment pleadings ground bars the The trial court denied the motion. In this action. proceeding mandate, a writ to set aside defendant seeks the trial court’s order. behalf, to a brief filed on he died of
According plaintiff’s lung pre cancer writ of mandate was filed. The issues petition after the moot, however, since an sented are not action personal (Prob. Code, 573.)3 of the plaintiff. survives death § *6 the trial court’s denial defendant’s mo For purposes reviewing tion, plaintiff’s complaint. allegations we must true accept ex Pub. Wks. rel. Dept. Inc. v. State (Cоlberg, of California 401, 3].) 411-412 Cal.2d upon centers parties focus of the between dispute The primary cover the intentional 4553 is intended to whether section the question The section provides employee injuries.4 which cause acts of employers by filed former with several others present was consolidated 3The action identical, complaints are allegations of these all Pittsburg plant. The at defendant’s actions in the additional plaintiffs whether will determine conclusion here our to trial. proceed Relations, filed curiae have amicus briefs others Department 4The of Industrial has Institute filed Compensation while the California Workers’ plaintiff, behalf of on that otherwise recoverable shall be increased one-half “compensation where the is reason of the serious and willful mis- injured by $10,000. conduct” of the not to exceed Defendant that urges employer, this section is a substitute for a penalty imposed upon employеrs by common law intentional mis- of action an whose right conduct such is results while misconduct injury, plaintiff argues misconduct,” from the and willful described in distinguishable “serious section and therefore his intentional acts complaint alleging by defendant in an action at law. cognizable
Defendant relies both the of the Workers’ upon legislative history Act and cases the words “serious and willful Compensation interpreting misconduct” in its support position. if an a choice of remedies
Prior to the law allowed an employee willful miscon- negligence was caused an by employer’s gross maintain He workers’ benefits or duct. could either claim (Stats. 1913, 12(b), 283- ch. pp. an action at law for damages. § however, a new sec- 284.) In that this was deleted and year, provision in the event tion added a one-half increase specifying (Stats. 1917, ch. and willful misconduct employer. of serious defendant, 6(b), 834.) demonstrates This contends p. history, § that the to seek additional right was intended
serious and willful misсonduct of action at for the to seek an right damages as a substitute Legislature law for such conduct. was a desire by the amendment claims that the reason for
Plaintiff the treatment of Legislature equalize miscon serious and willful of acts of with to the commission regard because it does not However, convincing argument duct. an bring of the repeal provision allowing account for the willful misconduct. at law for the employer’s action *7 convenience, opinion literary this support brief
an amicus curiae of defendant. For been though they had by amicus as parties will treat assertions made on behalf of both parties made themselves. willful misconduct guilty serious and employee who is provided 5The act that an 586, 1917, 6(a)(4), (Stats. ch. percent. 50 § have his reduced would 4551, exceptions to the some 834.) which sets forth provision appears in section p. That penalty. reduction 472
We find the historical cited defendant to be background persua- sive. The clear is that the addition in 1917 of the “exclusive imрlication limitation and the for a the willful remedy” provision mis- penalty conduct was a substitute for the of an previous right to an action at law. bring
Next, defendant contends that the term “serious and willful miscon duct” as used in section 4553 has the same as intentional meaning misconduct, and not avoid the bar of plaintiff section 3601 may merely defendant’s conduct as by characterizing intentional. Defendant relies (1953) 102, on Mercer-Fraser Acc. Co. Industrial Com. 40 Cal.2d 117 P.2d in which the term “willful 955], misconduct” as used in [251 section 4553 was defined as conduct which involves delib “‘necessarily erate, intentional, or conduct wanton or doing omitting perform acts, with of the fact. . . that knowledge appreciation is danger likely ' to result ‘Wilfulness involves the necessarily perfor [¶] therefrom.’ mance aof deliberate or intentional act or omission regardless This consequences.’”6 definition includes intentional conduct expressly within the of section purview 4553.
Plaintiff counters that a difference be- Legislаture recognized tween intentional misconduct and serious and willful misconduct it because has that an who is of the former is provided guilty 3600, (d), (§ workers’ subds. precluded recovering (e), (f), whereas if he is as the result his own serious (g)), injured and willful he suffers a one-half reduction in compen- misconduct only 4551). (§ sation benefits
The contention these intentional provisions. misconstrues misconduct of an which excludes his right himself, his in an participation the deliberate infliction of injury upon both before and after Mercer-Fraser found serious 6Plaintiff asserts that decisions set forth in that willful misconduct on facts which did not meet the strict definition (1965) (Citing, e.g., v. Ind. Acc. Com. 63 Cal.2d 723 Rogers case. Materials Co. 737]; Acc. 27 Vega 408 P.2d v. Industrial Com. [48 Aircraft P.2d Parkhurst v. Industrial Acc. Com. Cal.2d 533-534 [165 113]; 105, Horst v. Industrial Acc. Com. Cal.2d E. Clemens Co. 611].) comprehend how this cir Cal. P. 16 A.L.R. We fail distinguished from plaintiffs argument that intentional acts cumstance assists recognized by plaintiff, it is virtually willful misconduct. In all of the cases cited knows guilty willful misconduct under section 4553 if he of serious and dangerous precautions fails to take placing position in a he is safety. their
473 his altercation in which he is the or where are caused aggressor, injuries (See ante, 1, 468.) were p. provisions intoxication. fn. These obvious to at least an from ly designed, part, prevent injuring to himself order collect to deter compensation, physical aggression by due fact employees, prevent to to intoxication. The that the injuries Legislature to these except particular types chose intentional acts that all does coverage imply types misconduct which described intentional will recov preclude If, ery compensation. example, the employee deliberately “with performs knowledge act of the fact. . . appreciation danger is to result which constitutes seri likely therefrom”—conduct (Mercer-Fraser ous willful misconduct under section 4551 Co. v. Com., 102, 117)—he Ind. Acc. 40 Cal.2d supra, not precluded from but is to a recovering cоmpensation reduction his recov subject by one-half.7 ery sum,
In section provisions of 4553 were designed penalize intentional misconduct of an and the which employer, injuries result from such acts are under compensable that section.
However, while the consistent, case law cannot be described as it re- veals that in some exceptional circumstances is not free from liability at law for his intentional acts even if the resulting injuries are under compensable Indeed, workers’ compensation. situation, in one unusual despite “exclusive remedy” provision of 3601, section an action at law was allowed for injuries incurred in the employment where conduct was employer’s negligent rather than intentional.8
First we consider cases in which intentional acts of the employer have been held not to an action at law. was deter justify Compensation mined to be the exclusive suffered in a case in remedy 7Hawaiian Pineapplе Co. v. Acc. Ind. Com. 40 Cal.2d 664 P.2d [255 431], holds that the term “serious and willful given misconduct” to be the same However, meaning in sections and 4553. it does not discuss of sub (d), (e), (f), (g) divisions of section 3600 or relationship their section 4551. 8In Duprey v. 8], Shane 39 Cal.2d P.2d a nurse who was em ployed by chiropractor was treated him injury. for an industrial heldWe that she could sue her employer malpractice committing because in the tortious acts he was acting in his capacity (See as a doctor than employer. Baugh Rog rather as an also v. ers 24 Cal.2d 152 A.L.R. Douglas E. & J. Winery (1977) Gallo Cal.Rptr. 797].) 110 [137 *9 474 in the material inherent concealed the dangers
which the employer (1978) 81 v. FMC (Wright Corp. to handle required were made false representa 740]) Cal.App.3d [146 (1940) (Buttner Bell Tel. Co. American in that regard tions was reach The same conclusion P.2d 439].) malicious was guilty that the employer ed on the basis of allegations machine without proper to use a allowing employee misconduct 508, 509 (Law v. Dartt (1952) 109 Cal.App.2d instruction.
1013].) uncommon seems obvious. It is not
The reason for the rule foregoing of a to an danger his mind” to the existence for an “рut (See, e.g., Rog fail to take corrective action. and nevertheless Com., 717, 723.) In v. Ind. Acc. 63 Cal.2d supra, ers Materials Co. cases, warn the does not of these many deceit as intentional or even be characterized risk. Such conduct as a cases remedy, many if at law were allowed ful. Yet an action be out prosecuted would also under workers’ cognizable in a case involving of the inquiry side that The focus system. arose out of injury often be not whether work-related would the em the state of knowledge but employment, and in the course of which condition dangerous and the employee regarding ployer the underlying prem undermine Such a result would injury. is based. That system compensation system ise which the workers’ upon at immunity balances the advantage and certain swift relatively the detriment against expeditious compen while the receives Conversely, payments. in a recovery sation, larger right potentially he surrenders of his em or willful misconduct action for the negligence common law hold, if we were to disturbed would be significantly This balance ployer. which may of an employer that misconduct any as plaintiff urges, damages. at law for warrants an action as intentional characterized for additional remedy is the sole that section 4553 clear It seems in the is injured whose employee an employer that to assure deliberate failure result of a instance as the first is safe. place of the work environment physical the dis- contracted
Thus, plaintiff the complaint alleged if that his health from him and concealed knew defendant ease because environment, failed to supply in the work asbestos endangered by was *10 disease, governmental to avoid and violated devices adequate protective plaintiffs levels at the plant, to dust regulations relating remedy the would be to his claim under workers’ compensation law. prosecute But where with the intentional misconduct charged which goes his failure assure that the tools or beyond by to substances used safe, the or the environment of a employee physical workplace are some have cases held that the to law employer may subject common liabil- A the the ity. physical assault has employer upon employee been held to an law the employer. (Magliulo Su- action at v. justify against Court (1975) 760, perior 47 Cal.App.3d 779 see Cal.Rptr. 621]; [121 Arts Union Meyer International (1978) 176, v. Graphic 88 Cal.App.3d contra, Azevedo v. Abel (1968) 178 264 Cal.Rptr. Cal.App. [151 451, 2d Ramey General Petroleum 458-460 In v. Cal.Rptr. 710].) [70 386, Corp. 173 402 was Cal.App.2d 787], it held that an action for fraud could be an maintained who against made misrepresentations regarding to medical care employee’s right with a third conspired conceal from the that in- party his employee juries, which occurred he while was were working, the third against whom Unruh v. Truck Insurance party he had And in recourse. Exchange 7 Cal.3d Cal.Rptr. 498 P.2d we 1063], allowed an at assault, action law an insurer for bat- and intentional tery, distress, infliction of emotional based its upon deceitful conduct in a workers’ investigating compensation claim.9
The reasons in these cases a given common law action allowing for intentional of the In employer vary. Magliulo misconduct ratio- based, nale was at least in on that an part, ground since employee sue a at (a)(1)), fellow for assault he (§ subd. should have the same his an right against that intention- employer, al assault has to the questionable relationship general conditions of employment. damages 9lt has also been held that for intentional infliction of un emotional distress
accompanied by sought physical injury may be implied an action at law as an exception to the exclusive remedy of the workers’ law because system provides that no remedy nonphysical injury for a the employment. The court Legislature that deny reasonеd did not intend an all redress for that (Renteria County Orange (1978) tort. Cal.App.3d Cal.Rptr. 841-842 [147 447].) Conversely, holding cases that remedy workers’ is the sole for such injury tort, upon are based physical injury the fact that resulted from the and there injury fore compensable (Gates was under compensation. workers’ v. Trans Video Corp. 486].)' 206 [155 held had Ramey though that even previously recovered workers’ for the from the physical injury arising employ- ment, from the fraudulent concealment of his cause of action injury was distinct the industrial and did not while occur he was of or performing services out incidental growing employment. The declared intended court never that an Legislature employer’s fraud was risk of employment. *11 Unruh, that an insurer in the ordinarily stands recognized
In we a it claim for of the when employer investigates shoes in out this must 3852), and that its negligence carrying duty (§§ However, held the the law. we that be remedied under did law was lost insofar as the insurer liability from common immunity but, rather, acted in investi- deсeitfully “remain in its role” proper not was the cause of action allowed separate the claim. A gating the of the initial industrial which injury, for aggravation insurer compensation.10 had received plaintiff already harmonize, to or these hold attempt explain
The parties distinguish, While to find in them a and consistent tidy we do ings. purport Unruh rationale, in and a trend Magliulo, Meyer we toward perceive if the employment an action at suffered the allowing the or if acts for the of deliberately purpose injuring employer misconduct consists of the harm from the intentional resulting aggrava Unruh, Magliulo, Meyer, In an initial work-related injury. tion of fraud consisted of assault or and deceit. Ramey, the misconduct alleged and Unruh an initial and a later distinguished injury between Ramey (Ramey) but related to the first injury which is from injury separate (Unruh). the initial aggravates employer” “person sued other than holding insurer could be as that the 10The Shane, Duprey v. enunciated in (§ 3852) capacity” the “dual doctrine upon was based Winery, supra, 69 Douglas v. E. & J. Gallo Cal.2d and followed
supra, 39 insurer in Unruh that analogy Duprey, it was determined By 103. Cal.App.3d performing proper its role it was personality” so that while dual “invested with a was was plaintiffs employer and system position stood in it within the committing suit, an intentional role stepped when it outside that from but immune case, Duprey in the tort, like the doctor employer” other than person it “became a liability in of the involved the recognize that Unruh subject liability at law. We here, than, itself. rather ego of the the alter surer as aggravates which Nevertheless, negligent conduct distinction between significant the same result which has intentional conduct injury and an industrial case. present context case, In the plaintiff fraudulently defendant present alleges him, him, concealed from and from doctors retained to treat as well as state, that he was suffering from disease ingestion asbestos, him from treatment for the thereby preventing receiving diseаse and him continue to work under hazardous condi inducing tions. These are allegations sufficient to state a cause of action for disease, of the aggravation as distinct from the hazards of the employ ment which caused him to contract the disease.
This approach is not inconsistent with which hold that cases aggrava- tion an industrial treatment or the injury by negligent negligent failure to provide treatment not be made basis at action (Deauville law against the Hall or its insurer. v. Cal.Rptr. 511]; Noe Travelers Ins. Co. 543-544 v. In- 172 Cal.App.2d Hazelwerdt 735-737
dustrial Indem. Exchange 157 Cal.App.2d 761-765 [321 P.2d 831].) Unruh distinguished between mis- negligent intentional *12 conduct in seen, this we regard as have that an insurer which holding, in engages intentional misconduct a following compensable injury may be in (7 held liable an law action at of the aggravation injury. 626-628.) Cal.3d 616 at pp. Magliulo was said that
In it an although be employee might willing to surrender his right to action at common law for the ordinary type of work-related it is injuries, not clear whеn equally he accepts em- he ployment contemplates employer might assault him or if an assault occurs he must be satisfied with the additional provided So, here, by section 4553. it is inconceivable that plaintiff con- would, templated defendant as he alleges, conceal the intentionally knowledge that he had contracted a serious disease from the work en- vironment, disease, thereby aggravating by em- accepting he would ployment surrender his right at law for such damages conduct.11__ 11Although holding our herein is based in part analogy on an Magliulo- to the decisions, Ramey-Unruh line of we not thereby are to be resolving any understood as Magliulo
conflict between v. Azevedo Abel supra, Cal.App.2d 264 458-460, as employee’s right to an maintain an action at law his employer physical by a assault the latter employment. related That present issue not case, ed in this purport and we do not to address it. question Since the at issue here was pleadings decided on the no record contains difficulty separating damage evidence to the the onset of the dis- ease by plaintiff subsequent aggravation. suffered its is a body There considerable regarding of medical ingestion (see literature disease caused v. asbestos Borel (5th Paper Corporation 1973) Fibreboard 1083-1085), Products Cir. F.2d 493 and at trial the parties undoubtedly will support introduce medical evidence in of their
478
Moreover, are more than blameworthy defendant’s actions alleged Un- in procured the insurer’s conduct in “evidence perfidiously” using ruh, and, trial, at are so if established societal interest egregious in similar conduct in the is so that there is great justifi- future deterring however, cation for Such awarding punitive damages. penalty, afforded an action at law.12
It bears that in action law in this case do emphasis allowing an at we with the courts which construed section quarrel strictly have 3601 as to so of the act and to distortion оf its “preserve spirit prevent (Eckis v. Sea World Corp. purposes.” Cal.App.3d Cal.Rptr. 183]; Saala McFarland v. 63 Cal.2d Hall, 144, 403 Deauville supra, Co., 535, 546-547; Noe Ins. v. Travelers 172 Cal.App.2d supra, 737.) do But we to the fears of defendant that a holding not subscribe at plaintiff’s favor would Pandora’s box of actions open up seeking for numerous industrial diseases. damages Restricting plaintiff’s damages to of the disease caused fraud of aggravation alleged defendant would limit the number such actions. substantially as a
We conclude of workers’ policy of exclusivity would not be under- seriously remedy employment of this plaintiff’s mined for the by holding aggravation defendant liable *13 will the aggravate we believe that many employers since cannot injuries, ex- concealing its deliberately effects of an industrial not injury by only we believe with Nor can employment. istence but also its connection intended that the in the workers’ enacting Legislature liability. Finally, although such conduct from tort to insulate flagrant receive workers’ filed an plaintiff application allow- be avoided recovery may in that double proceeding, an award guidance the court We note for the aggravation. regarding causation and contentions aggravated by injury establishing that his was in plaintiff is successful retrial that if on apportioning burden of complaint, in wrongful alleged of defendant acts aggravation is subsequent contracting of the disease and its damages between the initial wrong- defendant, from defendants’ emanates problem apportionment upon since the 450, Cal.3d Bd. 26 Comp. Appeals (Cf. v. Kellogg Workers’ acts. Pullman ful 80, 88 Cal.2d v. Tice 33 Cal.Rptr. 605 P.2d Summers 455-456 [161 91].) 5 A.L.R.2d com 4553 is additional section authorized in award percent increase 12The 50 (State v. Dept, Corrections damages. exemplary represent does not pensation and 489 P.2d Cal.3d Comp. App. Bd. Workmen’s Com., 193.) 184 Cal. supra, v. Acc. Industrial 818]; E. Horst Co. Clemens a the event plaintiff setoff in awarded ing for the of his in that aggrаvation proceeding present (See case Unruh Truck Insurance 3d Exchange, supra, as well. Cal. 616, 636.)
The writ is denied. J.,
Bird, J., Tobriner, J., Manuel, Newman, J., C. concurred.
CLARK, J.I dissent.
The net effect majority opinion to discourage employers engaging medical programs designed to minimize risks and effects of occupational disease. By on the imposing tort liabil- ity compensatory and punitive damages in addition to liability benefits, workers’ compensation decision can deter today’s employ- er initiation and Moreover, maintenance such sound programs. public policy expressed in constitutional and statutory make clear imposition of such tort favor of worker covered by compensation benefits is permitted unless there is specific constitu- tional or The statutory exemption. do not even majority attempt to find such language permitting exception. portions of held complaint by the majority state cause of
action may be summarized as follows: Aware since 1924 of the dangers asbestos, of working with Johns-Manville retained and physicians sur- geons plaintiff to examine of and other its employees. Johns-Manville failed to advise the retained “of the of physicians development chest pa- thology disease in pulmonary plaintiff and other and/or that such condition was the result of conditions at said working defen- dant’s plant.” The foregoing were fraudulent acts in that Johns- Manville intended to induce plaintiff to continue in a working danger- ous condition, Had plaintiff environment. been aware of his he would have terminated his further employment, avoiding injury. Policy
Public industries in soci- a number valuable and our necessary There are substantial risk that—unfortunately—involve occupational ety risks, medical special Aware of these many employers provide disease. Our to minimize the risk. workers’ programs designed who, dis- benefits for those such become provides despite programs, in lieu of abled disease. those benefits are occupational Ordinarily, in tort for liability damages. decision medi- employer adopts holds when an Today’s special disease, cal of an minimize risk program occupational the disease will include potential exposure liability liability tort and in addition to the punitive damages compen- for compensatory sation available to I am afraid that injured benefits workers. ordinarily will be lost on to remain today’s they lesson not Should employers: try them- health and ignorant employees’ problems thereby disengage selves medical for fear tort special programs triggering today’s liability?
The loss employers’ and thus effect of decision potential today’s cannot be minimized. Losses from awards not be insured punitive (Ins. 533; Code, v. Zurich Insurance Co. Gray § 104, 419 Cal.Rptr. Cal.2d 278-279 Products City (1979) 88 v. Globe Co. 36-39 Corp. Indemnity and insurers claims 494]), traditionally tort liability exempt (id.) and for willful misconduct for claims like that asserted by plaintiff where workers’ is availablе. who do employers have drawn classification between majority to discover illnesses occupational in medical programs engage em- compensation, limited to workers liability
thus will have their run the of tort risk programs thereby maintain such who ployers a classification liability. If such in addition to liability be re- warranted, policy require exposure does not public view is little reason there point the employee versed? From *15 on of based concealment injury victims industrial discriminate between in cases. recovery determine all should disability the Extent of of illness. Statutory Constitutional and Provisions XIV, Article section 4 of our Constitution Legislature provides: “The vested with unlimited hereby power, by any expressly plenary provi- Constitution, create, of sion this and of complete system enforce workers’ A of compensation,... complete system compensation workers’ comfort, adequate includes the health provisions safety gen- for and and eral of welfare and all workers... to the extent of the any relieving from consequences of .sustained in the course any workers of injury.. by medical, their employment... provision full for such surgical, hospital and other remedial treatment isas to cure and relieve from the requisite effects of such and full provision vesting . for injury.. power, authority jurisdiction and in an administrative with all the body requisite govern- mental functions to determine or matter any dispute under such arising legislation, the end that administration such shall legislation accomplish substantial in all cases justice expeditiously, inexpensively, character; and without incumbrance of all of which any matters are ex- pressly State, declared to be the social of this public policy binding upon all departments of the State government.”
Pursuant to constitutional authorization the enacted a Legislature (Lab. Code, “complete system” j1 workers’ 3201. The compensation. § complete Legislаture established reflects a system by compromise few workers will be providing—with exceptions—that compensated by employers without to the latters’ fault for regard out of injuries arising in course but that based fault employment, liability tort on shall not be permitted.
Thus, section 3600 states: for the “Liability compensation provided division, this in lieu other any whatsoever to liability any person 3706, shall, except Section without provided regard to negligence, exist against an any sustained his injury employees ”2 (Italics out of arising and in the course of the .. employment..
added.) otherwise indicated all statutory 1Unless references are to the Labor Code. division, provides: “Liability 2Section 3600 provided by this any lieu of other any person except whatsoever to as provided in Section
shall, regard negligence, without exist any sustained arising employment out of course of the and for the death any death, if injury proximately causes in those cases where the follow ing (а) Where, conditions of injury, concur: at the time of the both [¶] subject are to the of this division. [ Where, (b) injury, at the performing time of service ¶] *16 exist, the “(a) Where conditions of Section states: the to of compensation, pursuant the to recover such right provisions is, in the this as Section exclusive except remedy division provided the or employee against employer against for or death of an injury any within the his acting scope other the of employer employ of ment, his in his dependents that an or the event of except employee, death, shall, the to compensation against the em right addition an at for damages have a action such ployer, right bring against if in either the apply, other this division did not of follow employee, (1) or is cases: When the death caused ing injury proximately by [¶] employee. of the willful and act of such other unprovoked physical aggression death is the proximately When the or caused injury by ] [¶ event, (c) In nо either by intoxication of such other employee.... [¶] or whether entered into such other em by action legal by agreement liable, behalf, or on his shall the held employer directly or ployee or a incurred damages against, liability awarded indirectly, (a) the under or of subdivision such other employee paragraph ”. of this section. . . “in of is lieu liability that By providing 3600) an “exclusive employee’s and (§ whatsoever” other any the recovery Legisla- is of compensation, the remedy” the employer action against doubt tort beyond ture has made clear one the within can bring unless the employee is prohibited himself here and is exception applicable No such statutory exceptions. issue—elect deal with the to satisfactorily unable majority—obviously exception. the absence of statutory to ignore acting is within
growing employment and incidental to his the course of out of (c) injury employment, either proximately Wherе the caused employment. [¶] (d) injury Where the is not caused the intoxication negligence. or with without [¶] injury intentionally (e) Where is not self-inflicted. injured employee. [¶] [¶] (g) deliberately his own death. (f) willfully has not Where the [¶] injured injury out of altercation which Where the does not arise an voluntary (h) not arise out of Where does physical aggressor. initial [¶] recreational, social, activity constituting off-duty or athletic participation any duties, except activities are reason where such employee’s work-related part of, required by, employment. impliedly or expectancy expressly or are able regulations requiring em rules and promulgate shall reasonable administrative director advising places a notice posted conspicuous place in a post keep ployers to post such of the provisions this subdivision. Failure employees of the this expression of intent to waive notice shall not constitute subdivision.”
483 As the 3601, of sеctions 3600 majority recognize, tort actions precluding are damages against employers, applicable intentional by out of and in arising Busick v. course of Workmen’s Bd. Appeals employment. (E.g., Comp. (1972) 967, 975-976, 42, 7 Cal.3d fn. 11 Cal.Rptr. 500 P.2d [104 Mercer-Fraser Co. Industrial Acc. Com. 1386]; (1953) v. 40 Cal.2d 102, 117 Gates v. Trans Video Corp. (1979) P.2d 955]; 93 Cal. [251 196, 204-206 Ankeny v. Lockheed Mis- App.3d 486]; Cal.Rptr. [155 siles & Co. (1979) 531, 88 Space Cal.App.3d 534 Cal.Rptr. 828]; [151 Wright v. FMC (1978) 111, Corp. 81 779 Cal.App.3d [146 Noe v. Co. Travelers Ins. 740]; (1959) 731, 172 Cal.App.2d 733 et seq. P.2d 976]; Hazelwerdt v. Industrial Indem. Exchange (1958) 157 [342 759, Law v. Dartt Cal.App.2d seq. 763 et 831]; P.2d 109 [321 Cal.App.2d 509 P.2d 1013].) [240
Further, the fact that the employer’s conduct be might considered fraudulent, as the is not majority recognize, sufficient alone to permit recovery in tort where compensation is available. (Wright v. FMC 111, 779; Corp., supra, 81 Buttner v. American Bell Tel. Cal.App.3d Co. 41 Cal.App.2d 584 P.2d 439].) law,
When compensation benefits are the fact that em- required by conduct have ployer aggravated the not itself injury does furnish a basis to ignore exclusivity statutory remedy. clear that “[I]t accident, whеre an in an injured industrial and the employ- ee seeks for. . .the recovery aggravation from his or from his carrier, insurance the Industrial Accident Commission has exclusive ju- risdiction to determine this claim employer and his carrier.” v. Sahne (Duprey Hazelwerdt 39 Cal.2d 790 v. Industrial Indem. Exchange, supra, 762.) Cal.App.2d
The employer’s failure provide medical care to relieve from the ef- fects of industrial also furnishes no basis for an independent Co., action in tort. Travelers Ins. supra, {Noe et case, In seq.) the last cited Justice Tobriner noted the danger of tort
permitting actions against employers insurers: delay “[I]f carrier could rise to give independent medical service attributable to a actions, could of workmen’s third court party system In partial disintegration. oper- process practical to a subjected service, such as for minor medical getting ation of the plan, delays *18 carrier, hours, the a a could become few or even few dаys suits, in- many of these could be and manifold bases and independent and exclusive the law would become application deed. The of uniform rulings and courts. conflicting with honeycombed independent of workmen’s pattern The and the whole objective Legislature of (Italics added; 172 thereby could be partially nullified.” 737.) Cal.App.2d p. at is seeking that plaintiff in the instant case be no question
There can
in the course of employment.
of and
arising out
recovery
with asbestos.
working
was due
asserts the
complaint
Furthermore,
is
on fraud
predicated
employer liability
sought
providing
X-rays
medical examinations
employee,
medical
must be considered within
program
examination and X-ray
context
is a benefit furnished
employment
because
program
(Saala v. McFar
for the
incident to
employment.
Fund
Fireman’s
land
(1965)
Cal.Rptr. 144];
63
129
Cal.2d
[45
(1952)
Etc. Co. v. Ind. Acc. Com.
Cal.2d
532-533
P.2d
39
[247
(1975)
503, 504-
Dixon v. Ford Motor Co.
53
707];
Cal.App.3d
v. North American Rockwell
Corp.
Wickham
507
Cal.Rptr. 872];
[125
(1970)
unless
Cal.Rptr. 563].) Accordingly,
8
472
Cаl.App.3d
[87
a
there is a
suffered
statutory exemption, any injury
under the
compensable
examination
is
program
result of the medical
fault,
but
in tort
again liability
act without regard
permitted.
of employ-
and in
course
out of
arose
plaintiffs injury
Because
the employer
liability
tort
ment,
exception,
no statutory
there
fraud,
misconduct,
including
intentional
upon
not be
predicated
care.
medical
proper
to provide
failure
prior injury,
aggravation
tort
which have permitted
cases
number of
rely upon
The majority
of relevant statutes.
language
on the
based
actions
In
Shane,
Arts
781;
v.
Graphic
Meyer
Cal.2d
39
(Duprey
supra,
v.
485
Ren
CaI.Rptr.
ternational Union
Cal.App.3d
597];
88
176
[151
(1978) 82
County
Orange
teria v.
Cal.App.3d
Cal.Rptr.
[147
Court
Magliulo
Superior
447];
[121
(1959) 173 Cal.
v. General Petroleum
Cal.Rptr. 621]; Ramey
Corp.
v. Truck Insurance
Unruh
Exchange
App.2d
case,
In each
1063].)
None оf the cases relied the conclusion of tort upon support the instant held to permit case because the statutory language recovery in those cases does not do so in the instant case.
The Duprey case involves dual or the capacity two-hat doctrine. The or employer insurer in those cases acts not as an only employer but also in a second in causing or capacity Thus aggravating injury. in Duprey employer who was doctor undertook to treat his nurse for industrial The injury. court recognized that while doctors vic- treating tims of industrial accident be held ordinarily may liable in tort for malpractice, an is employer not liable in tort ordinarily to an employee for aggravation of an injury However, by malpractice. the court concluded that having undertaken treatment in a doctor-patient rela- tionship, be employer should liable in tort for acts of malpractice. In excluding tort sections liability, 3600 аnd 3601 exclude of the liability Duprey “employer.” is based on the construction of that term as exclud- ing of the doctor when as such. In acting providing medical examinations and case, in the X-rays Johns-Manville, instant we seen, have acted in its employer The dual capacity. or capacity two-hat doctrine not applicable here.
In Magliulo and in Meyer, which followed Magliulo, in each case was alleged have assaulted an The employee. cases hold that there is a statutory to the exception rule that compensation an exclusive in the case remedy of an unprovoked (§ assault. subd.
(a); 47 Cal.App.3d 779-780.) at pp. There is no statutory exemption ap- plicable in the instant case similar to the one provided for section 3601. Renteria,
In Ramey the actions for were for damages injuries not compensable under the compensation In Ramey, law. against tort action forego injured
fraudulently induced Ramey employee’s was not for the claim a third tortfeasor. party aof deprivation fraudulent injury, but his economic physical injury Renteria, to recover seeking In an cause of action. distress, did not allege of emotional for intentional infliction noted he would The court disability injury.
any physical (82 at Cal.App.3d compensation proceedings. entitled recover that inten- alleged it has been 839-S42.)3 in which cases Subsequent pp. have injury caused physical distress tional infliction emotional exclusive rem- Renteria, is the holding distinguished 196, 206; supra, v. Trans Video Corp., (See Cal.App.3d Gates edy. Co., & Space supra, v. Lockheed Missiles Ankeny contrast, arising initial 535-536.) injury of the By aggravation an com- case is conduct in the instant fraudulent employer’s law. under the exclusively pensable Unruh, In carrier investigator misrepresent- “his ing and intentions” toward an capacity injured employee, befriended her and enticed her to visit where Disneyland he violently *20 shook a her rope bridge When films causing injury. surreptitiously made of the at a employee’s conduct were exhibited hear- she suffered a nervous ing, breakdown. The court concluded that carrier, insurer had as from its role departed proper relying upon Duprey concluded that under dual doctrine the action personality might be maintained on basis that the insurer in ob- fraudulently (7 was evidence in a other as an insurer. taining acting capacity than above, Cal. 3d at et As ex- p. noted seq.) providing physical aminations and the risk of occupational X-rays facing illness, to Johns-Manville continued act an employer. each based on an
The relied are majority cases foregoing upon be The instant case cannot provision. of a interpretation statutory do not even at- exemption. majority any statutory within brought tort permitting statutory provision to a or constitutional tempt point to herein. law, tort, non-physical, ‘“If the of the 3In court concluded: essence Renteria the sort, being physical injuries at with non-physical and if are of the usual if makeweight, not be barred. But injuries as the suit should most added to the list of death, should be physical injury or the action recovery for the essence of the action is Larson, (2A tort.’ normally non-physical of if it in the form a barred even can cast 68.34, 13-31, 842.) 13-32.)” (82 Cal.App.3d p. at pp. Law Compensation Workmen’s § Courts may the Constitution and statutes. But interpret ignore constitutional granting Legislature plenary authority, legislative enactments expressly with unambiguously dealing appli- law, cable is not judicial usurpation of the function but legislative also destructive of judicial arrogance confidence in the society’s rule of law.
The majority properly reject the offered but erroneous grounds of Nevertheless, statutory interpretation. then they proceed a rule adopt contrary to direction. In legislative the face constitutional delegation mandate, the Legislature and express legislative and in the absence asserted any action, constitutional or basis statutory for their the ma- jority have arrogantly function in usurped legislative violation separation powers doctrine and thus thwart will. people’s A number of occasions have arisen in past where members of the court have as to the disagreed meaning constitutional and statutory provisions or as to the rule of law to be proper courts applied by in the absence of such But provisions. no such disagreement exists in this case.
The majority refuse to simply address the constitutional plenary grant of power and the Legislature’s express prohibition against tort action.
We all have compassion for those industrial or incurring indus- trial disease. The workers’ compensation law reflects that compassion —providing compensation for all employees suffering employment in- jury illness—whether or not the at fault.
Permitting both benefits and tort from the compensation recovery creates as de- employment “partial disintegration” scribed Justice Tobriner of our of workers’ system compensation. that court when the em-
Realizing tort now allowed our recovery fault, is at ployer Legislature compensation conclude may fault, the determinative where the is not at and it remedy only compro- refuse to benefits to reflect the basic adjust Further, mise. to be fixed Legislature level costs, will decision means em- take into account today’s must obtain insurance as well ployers against employee injury decision providing special insurance. majority’s tort few illness jeopardizes award of those suffering occupational victims of amount the benefits available to the industrial many illness injury. court motion respondent grant writ and order
I would issue the the pleadings. on judgment Richardson, J., concurred. was modified to read as opinion printed
On August J., Manuel, was there- dissenting opinion The concurring above. withdrawn. upon