Baker v. Westinghouse Elec. Corp.

• Decision Date: 23 June 1994
• Docket Number: No. 49S00-9309-CQ-1004,49S00-9309-CQ-1004
• Citation: 637 N.E.2d 1271
• Parties: 10 IER Cases 636 John W. BAKER, et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION and Monsanto Company, Defendants.
• Court: Indiana Supreme Court

Page 1271

637 N.E.2d 1271

10 IER Cases 636

John W. BAKER, et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION and Monsanto Company, Defendants.

No. 49S00-9309-CQ-1004.

Supreme Court of Indiana.

June 23, 1994.

Jeanmarie LoCoco Nicholson, Murray Law Firm, New Orleans, LA, David McCrea, McCrea & McCrea, Bloomington, for plaintiffs.

Joseph B. Carney, Virgil L. Beeler, John R. Schaibley, III, Baker & Daniels, Indianapolis, Jan Feldman, John J. O'Shea, Pope & John, Ltd., Chicago, IL, for defendants.

David J. Mallon, Jr., R. Brock Jordan, Ice Miller Donadio & Ryan, Indianapolis, for Indiana Legal Foundation as amicus curiae.

SHEPARD, Chief Justice.

We have agreed to answer two questions about the viability of tort claims against employers, certified to us by the United States District Court for the Southern District of Indiana pursuant to Ind. Appellate Rule 15(O). Those questions are:

I) Whether there is an intentional tort exception to the exclusivity provision of the Indiana Worker's Compensation Act, Ind.Code § 22-3-2-6, and

II) Whether there is an intentional tort exception to the exclusivity provision of the Occupational Diseases Act, Ind.Code § 22-3-7-6.

As to the first question, we hold that there is no exception to the compensation act, but conclude that the act by its terms does not bar certain intentional tort actions. We answer the second question in the negative; the Occupational Diseases Act bars intentional tort actions.

The Indiana General Assembly has established worker's compensation as an exclusive remedy for employment-related personal injury or death which occurs "by accident." It has not, however, placed such a limitation on the scope of the Occupational Diseases Act. Because injuries intentionally inflicted by an employer are not "by accident," suits arising therefrom are not barred by the compensation act. Conversely, intentionally injured employees who otherwise satisfy the requirements of the Occupational Diseases Act have their exclusive remedy therein. That act contains no "by accident" requirement, and it is beyond the province of the courts to create one.

I. Worker's Compensation Act

The exclusivity section of the Indiana Worker's Compensation Act provides that the rights and remedies granted to an employee by the act

on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise, on account of such injury or death....

Ind.Code Ann. § 22-3-2-6 (West Supp.1992). ¹

A. Exclusion of Intentional Torts

In Evans v. Yankeetown Dock (1986), Ind., 491 N.E.2d 969, we considered the phrase "by accident" which appears in this section and concluded that it contemplates an injury not intended or expected by the sufferer. Id. at 974-75. This holding represented a significant milestone on the mazy path of the jurisprudence surrounding this short but important phrase.

The definition of "by accident" approved in Evans was originated by the British courts, see Fenton v. Thorley & Co., 19 T.L.R. 684 (1903), and adopted in Indiana early on, first by the Court of Appeals, Indian Creek Coal & Mining v. Calvert (1918), 68 Ind.App. 474, 119 N.E. 519, and later by this Court, Heflin v. Red Front Cash & Carry Stores (1947), 225 Ind. 517, 75 N.E.2d 662. Under the Indian Creek/ Heflin approach, the "by accident" limitation is viewed as a mens rea requirement, not an element of causation as contrary views had held. See Indian Creek, 68 Ind.App. at 506-07, 119 N.E. 519 (Dausman, J., dissenting). Our courts consistently applied this definition for some forty years. Chestnut v. Coca Cola Bottling (1969), 145 Ind.App. 504, 251 N.E.2d 575.

Then, in United States Steel v. Dykes (1958), 238 Ind. 599, 154 N.E.2d 111, we reversed a compensation award on the ground that an injury had to be caused by an "unusual exertion" to be "by accident." Id. at 610, 154 N.E.2d at 117. This "unfortunate language," Lock-Joint Tube Co. v. Brown (1963), 135 Ind.App. 386, 394, 191 N.E.2d 110, 114, signaled a re-opening of the issues resolved in Indian Creek and ultimately generated widespread confusion. See generally Ben F. Small, Workmen's Compensation in Indiana § 5.1, at 42 (Supp.1976); Tony H. Abbott, Survey of Recent Developments in Indiana Law, Workmen's Compensation, 9 Ind. L.Rev. 389 (1975); F. Joseph Jaskowiak, The Meaning of the Term "Accident" in the Indiana Workmen's Compensation Act, 13 Val.U.L.Rev. 535, 541 (1979). After a cryptic encounter with this problem in Calhoun v. Hillenbrand Industries (1978), 269 Ind. 507, 381 N.E.2d 1242, in Evans we once again embraced the Indian Creek/Heflin definition and thereby restored the status quo ante Dykes.

The Evans Court used the intentions of the employee-victim as a vehicle for disposing of the Dykes causation approach. This focus on the sufferer has, however, apparently obscured another traditional component of the "by accident" requirement: the employer's intentions. In the post-Evans case National Can Corp. v. Jovanovich (1987), Ind.App., 503 N.E.2d 1224, for example, the Court of Appeals resolved a claim that employers' intentional torts are outside the act without reference to the "by accident" requirement. Rather, it crafted an "intentional tort" exception to the exclusivity provision. Under that exception, the Third District said, "if an employer intentionally injures an employee, the Act does not apply." Id. at 1232. Several other panels have since joined this view. ²

Today, following from our work in Evans, we reject the "intentional tort exception" outlined in National Can and reiterate the view that "exceptions should not ordinarily be declared by the courts when the legislature speaks broadly." Evans, 491 N.E.2d at 972 (quoting Kunkalman v. Gibson (1908), 171 Ind. 503, 509-10, 84 N.E. 985, 987). Instead, we hold that the act itself does not include employers' intentional torts within its coverage. The exclusivity provision is expressly limited to personal injury or death arising out of and in the course of employment which occurs "by accident." Because we believe an injury occurs "by accident" only when it is intended by neither the employee nor the employer, the intentional torts of an employer are necessarily beyond the pale of the act.

This approach is consistent with the legislative objectives which shape our workers compensation scheme. Historically, workers compensation was concerned not with intentional torts but with the intolerable results that flowed from the common law's treatment of workers' negligence actions. See Note, Right of Employee to Sue Employer for an Intentional Tort, 26 Ind. L.J. 280, 280 (1951). During the nineteenth century, common law judges clung to personal fault as the sine qua non of employer liability despite the increasingly massive and impersonal nature of the workplace. Balzer v. Waring (1911), 176 Ind. 585, 95 N.E. 257. If the employer was not "at fault," it was inconceivable to judges in the last century that it should be compelled to contribute towards the support of the worker or his family. Samuel B. Horovitz, Modern Trends in Workmen's Compensation, 21 Ind.L.J. 473, 474 (1946).

The battery of defenses which the courts used prior to the compensation act to enforce the fault requirement was especially devastating to workers. ³ The defenses of assumption of risk, fellow servant and contributory negligence, dubbed the unholy trinity by Dean Prosser, prevented recovery by some eighty percent of those workers who litigated their injury claims. Horovitz, supra, at 475. These defenses were of no avail in an intentional tort action, however, and employees stood a chance of recovering in such suits. See Thayer v. St. Louis, A. & T.H. R.R. (1864), 22 Ind. 26; McGill v. Duckworth, 944 F.2d 344 (7th Cir.1991) (interpreting Indiana law), cert. denied, 503 U.S. 907, 112 S.Ct. 1265, 117 L.Ed.2d 493; see also Thomas F. Macke, Judicial Misapplication of the Indiana Workmen's Compensation Act to Injuries Resulting from an Employer's Wilful Conduct, 13 Val.U.L.Rev. 561 (1979). We think it improbable that the legislature intended to foreclose common law actions in those few cases in which employees historically were able to prevail.

Nor do we see that the exclusion of intentional torts undermines the viability of the workers compensation system. Workers compensation obviates the uncertainty, delay, and expense of common law remedies by substituting a fixed compensation according to reimbursement schedules. Frampton, 260 Ind. at 250, 297 N.E.2d at 427. The act envisions that the costs of no-fault liability will be borne by industry, Aetna Casualty & Sur. v. Hightower (1939), 107 Ind.App. 46, 22 N.E.2d 875, and passed on to the ultimate consumers of products. See In re Duncan (1920), 73 Ind.App. 270, 127 N.E. 289. This approach can function efficiently only so long as liability is predictable enough that it can be factored accurately into the cost of production.

Courts have traditionally understood this predictability feature as requiring that employee injuries be compensated under the act whenever possible. See Macke, supra, at 562-63. Broad inclusion within the system has generally been achieved through "liberal construction" of the act's threshold jurisdictional requirements. E.g., Kariger Motors v. Kariger (1961), 132 Ind.App. 85, 173 N.E.2d 916; see generally Evans, 491 N.E.2d at 973. Nonetheless, employers' intentional torts may be excluded from the act without upsetting the lodestar principle of regular and predictable liability. An employer can avoid liability for intentional torts by refraining from egregious behavior--a decision over which it has complete control.

Legislative exclusion of intentional torts also complements other public policies of this state. For example, Indiana generally denies the ability to insure against or waive liability for intentional torts. See LaFrenz v....