Ankeny v. Lockheed Missiles and Space Co.

• Citation: 151 Cal.Rptr. 828,88 Cal.App.3d 531
• Court: California Court of Appeals
• Decision Date: 19 January 1979
• Parties: Kenneth R. ANKENY, Plaintiff and Appellant, v. LOCKHEED MISSILES AND SPACE COMPANY, Defendant and Respondent. Civ. 41004.

Page 828

151 Cal.Rptr. 828

88 Cal.App.3d 531

Kenneth R. ANKENY, Plaintiff and Appellant, v. LOCKHEED MISSILES AND SPACE COMPANY, Defendant and Respondent.

Civ. 41004.

Court of Appeal, First District, Division 2, California.

Jan. 19, 1979.

Hearing Denied March 22, 1979.

John R. Bernard, Bernard & Pinatelli, San Francisco, for plaintiff and appellant.

James J. Duryea, San Francisco, for defendant and respondent.

ROUSE, Associate Justice.

The main question posed by this appeal concerns the exclusive remedy provisions of the Workers' Compensation Act (Lab. Code, § 3200, et seq.): specifically, should these provisions bar an employee's civil action against his employer and fellow employees for intentional infliction of emotional distress where physical illness and disability accompany the emotional distress? We hold that they do.

Plaintiff, Kenneth R. Ankeny, was employed by defendant Lockheed Missiles and Space Company (Lockheed). ¹ During the course of his employment, Lockheed allegedly deprived plaintiff of stewardship in his union and transferred him from one job to another. These acts of Lockheed were accompanied by "personal verbal insults" directed at plaintiff by his fellow workers. In a count alleging conspiracy, plaintiff also claimed that Lockheed twice caused him to be passed over for promotion, and had him assigned to work tasks not appropriate to his labor grade. Lockheed also terminated plaintiff's employment ² and subjected him to "many other acts of harassment." Plaintiff generally alleged that all such acts were intended by defendants to cause him emotional distress, were ratified by Lockheed, and were within the scope and course of defendants' employment. Plaintiff also alleged that, as a proximate result of these acts, he has been made "physically sick and ill" and has incurred "some permanent disability." Almost as a sidelight, he alleges that he has been subjected to pain and suffering as a proximate result of those same acts.

Lockheed demurred specially and generally to plaintiff's third amended complaint on several grounds, all of which were found by the trial court to be well taken. The court held that it had no jurisdiction over the complaint, since workers' compensation was plaintiff's only remedy. It was also held that the complaint failed to state a cause of action for intentional infliction of emotional distress, and was uncertain. Plaintiff appeals from the court's judgment of dismissal, challenging all grounds upon which the demurrer was sustained.

Plaintiff takes issue with the court's holding that workers' compensation provides his sole remedy. He cites Magliulo v. Superior Court (1975) 47 Cal.App.3d 760, 121 Cal.Rptr. 621 for the proposition that an employee's remedy for an intentional tort committed by his employer may be pursued either through civil suit or workers' compensation. The Magliulo holding is not so broad in its sweep, however. In reaching its holding, the Magliulo court likened the situation before it (an employer bodily throwing his employee to the ground in a fit of pique) to the exclusive remedy exception granted by Labor Code, section 3601, subdivision (a)(1).

The pertinent portions of section 3601, subdivision (a), provide that the right to recover workers' compensation benefits shall be "the exclusive remedy for injury or death of an employee against the employer or against any other employee of the employer acting within the scope of his employment . . ." except "(1) When the injury or death is proximately caused by the willful and unprovoked physical act of aggression of such other employee."

Accenting the fact that this exception is only to be applied to acts of physical aggression of the employee or employer, the court in Magliulo repeatedly stressed that "the courts are free to determine whether the employer loses his immunity from civil suit in the event he Personally intentionally inflicts an injury on the person of his employee." (P. 769, 121 Cal.Rptr. p. 628; emphasis added.) "Where there is an intentional assault it is of questionable relationship to general conditions of employment." (P. 779, 121 Cal.Rptr. p. 635.) Since Magliulo clearly deals with an employer's act of physical aggression, its holding does not necessarily apply to a situation involving a question of intentionally inflicted emotional distress. Additionally, plaintiff Ankeny's complaint relates entirely to the general condition of employment at defendant Lockheed's plant.

Plaintiff also contends that the holding of Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 147 Cal.Rptr. 447 should govern the disposition of this case. The Renteria court held that, since an employee did not suffer any compensable physical disability as a result of intentionally inflicted emotional distress, he should be allowed to pursue a civil remedy against his employer. The facts in Renteria are similar to those in a California Supreme Court case, Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216. In Alcorn, the court allowed the plaintiff to sue his employer for intentional infliction of emotional distress, though the issue of workers' compensation was never raised. Since neither Alcorn nor Renteria involved compensable physical injury or disability, limiting the plaintiffs to workers' compensation would have shielded the employer from all liability. Obviously, in drafting the Workers' Compensation Act, the Legislature did not intend such a result. Therefore, the plaintiffs in Alcorn and Renteria were allowed to file civil suits.

Plaintiff's complaint is readily distinguishable from those in Alcorn and Renteria. Here, plaintiff has alleged physical injury and disability, while the complaints in Alcorn and Renteria contained no such allegations. Acts attributed to defendants, alleged by plaintiff, were not of an outrageous character. The acts alleged in Alcorn and Renteria were of such a nature. Unlike the cases of Alcorn and Renteria, workers' compensation, in this instance, does offer plaintiff a remedy. Thus, we disagree with plaintiff and hold that Renteria Does not govern the disposition of this case.

We are also of the opinion that the trial court properly sustained defendant's demurrer to the complaint for failure to state facts constituting a cause of action. It is apparent from the face of the complaint that plaintiff failed to plead facts showing outrageous conduct on the part of the defendants. Without such pleading, no cause of action for intentional infliction of emotional distress will stand. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 296, 131 Cal.Rptr. 547.)

In Newby v. Alto Riviera...