Baker v. Westinghouse Elec. Corp.

• Citation: 830 F. Supp. 1161
• Decision Date: 13 April 1993
• Docket Number: No. IP 91-626 C.,IP 91-626 C.
• Parties: John W. BAKER, et al., Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION and Monsanto Company, Defendants.
• Court: U.S. District Court — Southern District of Indiana

830 F. Supp. 1161

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

No. IP 91-626 C.

United States District Court, S.D. Indiana, Indianapolis Division.

April 13, 1993.

COPYRIGHT MATERIAL OMITTED

David S. McCrea, McCrea & McCrea, Bloomington, IN, C. Joseph Murray, Murray Law Firm, New Orleans, LA, for plaintiffs.

Joseph B. Carney, John R. Schaibley III, Baker & Daniels, Indianapolis, IN, for defendants.

BARKER, District Judge.

ENTRY

John W. Baker and Norma Baker et al. (collectively the "Plaintiffs") are nine former employees (the "Employee-Plaintiffs") of Westinghouse Electric Corporation ("Westinghouse") who worked at plants that Westinghouse once owned in Muncie and Bloomington, Indiana. The spouses of seven of these employees (the "Spouse-Plaintiffs") also have joined in the Complaint. The Employee-Plaintiffs claim that they were injured from exposure to polychlorinated biphenyls ("PCBs") while working at Westinghouse's plants; the Spouse-Plaintiffs claim loss of consortium resulting from their spouses' alleged injuries. Plaintiffs also set forth claims for injuries resulting from PCB exposure outside the employment setting.

Westinghouse moves the Court to dismiss Counts I through IV and Count VII of the First Amended Complaint. For reasons that will be explained below, the Court grants Westinghouse's motion to dismiss Counts II, IV and VII (fraud in the inducement, restitution, and punitive damages). The Court also grants Westinghouse's motion to dismiss Counts I and III (battery and fraudulent misrepresentation) to the extent that they are based on employment related injuries. As with the Employee-Plaintiffs, the Spouse-Plaintiffs' claims which are not based on work related injuries survive Westinghouse's motion.

The Monsanto Company ("Monsanto") moves the Court to strike portions of the First Amended Complaint. That motion is denied.

BACKGROUND

Until January 1, 1990, Westinghouse operated plants in Muncie and Bloomington, Indiana. The Bloomington facility, which began operations in 1957, manufactured and repaired electrical power capacitators. The Muncie plant opened in 1961 and manufactured and repaired electrical power transformers. Monsanto sold PCBs to Westinghouse, which Westinghouse used in both plants. Plaintiffs believe that Westinghouse and Monsanto (collectively the "Defendants") "intentionally and knowingly poisoned all Plaintiffs with PCBs...." First Amended Complaint, at ¶ 16. According to Plaintiffs, "Westinghouse knew at the time of each job assignment that each Plaintiff would be poisoned by PCBs through inhalation, ingestion, and dermal contact." Id. at ¶ 17. Their Complaint sets forth claims against Westinghouse for: battery, fraud in the inducement, fraudulent misrepresentation, unjust enrichment, and punitive damages.

Although Westinghouse apparently advised its employees on several occasions that the work environment it provided was safe, Plaintiffs believe otherwise and have listed a wide variety of injuries that they are convinced resulted from exposure to PCBs in Westinghouse's facilities. Id. at ¶¶ 18, 21. At least one physician, Dr. Harold Klawans, has concluded that PCB exposure caused the Plaintiffs' alleged neurological injuries. Id. at ¶ 51.

Westinghouse argues that under Indiana law each of the Plaintiffs' purported causes of action fails to state a claim for which relief can be granted, and moves the Court to dismiss this action pursuant to Fed.R.Civ. Proc. 12(b)(6). In its view, Indiana's worker's compensation laws provide the exclusive remedy in this matter. Westinghouse also notes that, as concerns the Spouse-Plaintiffs, Indiana law precludes loss of consortium claims which are based on the spouse's alleged workplace injury. Finally, Westinghouse argues that this cause is barred by Indiana's two-year statute of limitations for personal injuries. See Ind.Code § 34-1-2-2.

DISCUSSION

In ruling on a motion to dismiss under Fed.R.Civ.Proc. 12(b)(6), the Court must construe the allegations of the complaint in favor of the pleader, see Scheuer v. Rhodes, 416 U.S. 235, 236 (1974), and only in the exceptional circumstance where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" will the Court grant the motion. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Although this standard is a high one and is to be scrupulously applied, the Court is not oblivious to "the heavy costs of modern federal litigation ... and the mounting caseload pressures on the federal courts, which counsel against launching the parties into pretrial discovery if there is no reasonable prospect that the plaintiff can make out a cause of action from the events narrated in the complaint." Sutliff, Inc. v. Donovan Co., Inc., 727 F.2d 648, 654 (7th Cir.1984).

I. Claims for Injuries Within the Employment Relationship

A. Count I: Battery

The Plaintiffs' first claim is for battery. Westinghouse argues that Indiana's Workmen's Compensation Act (the "Act"), see Ind.Code §§ 22-3-1-1 et seq. (Burns 1992), preempts this claim, and directs the Court to its exclusivity provision, which states:

Rights and remedies of employee exclusive. — The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 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, except for remedies available under IC 16-7-3.6.¹

Ind.Code § 22-3-2-6 (Burns 1992). Indiana courts have held that a claim falls within the Act's purview only if it is for: (1) a personal injury or death by accident; (2) arising out of employment; and (3) arising in the course of employment. House v. D.P.D., Inc., 519 N.E.2d 1274, 1275 (Ind.App. 2 Dist.1988), citing, Evans v. Yankeetown Dock Corp., 491 N.E.2d 969, 973 (Ind.1986) (emphasis added). The parties present the Court with lengthy arguments concerning the boundaries of the Act's exclusivity provision.²

The parties also cite the Occupational Disease Act (the "ODA"). A claim falls within the purview of the ODA if the employee has suffered: (1) an occupational disease and (2) "disablement" or death. See House, 519 N.E.2d at 1275-76. Like the Act, the ODA contains an exclusivity provision. It states:

Rights and remedies under chapter exclusive. — The rights and remedies granted under this chapter to an employee subject to this chapter on account of disablement or death by occupational disease arising out of and in the course of the employment 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 disablement or death.

Ind.Code § 22-3-7-6 (Burns 1992). The ODA uses the following definitions:

"Occupational disease" defined — Disease arising out of employment. — (a) As used in this chapter, "occupational disease" means a disease arising out of and in the course of the employment. Ordinary diseases of life to which the general public is exposed outside of the employment shall not be compensable, except where such diseases follow as an incident of an occupational disease as defined in this section.

(b) A disease arises out of the employment only if there is apparent to the rational mind, upon consideration of all of the circumstances, a direct causal connection between the conditions under which the work is performed and the occupational disease, and which can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as the proximate cause, and which does not come from a hazard to which workers would have been equally exposed outside of the employment....

Ind.Code § 22-3-7-10 (Burns 1992). Plaintiffs urge the Court to invoke an intentional tort exception which would remove their claims from the restrictions imposed by the Act and the ODA.

The Seventh Circuit Court of Appeals already has concluded that the ODA does not contain an intentional tort exception. See Buford, 881 F.2d at 435 (7th Cir.1989). Plaintiffs have failed to provide any principled basis to distinguish the holding in Buford.³ Although they urge the Court to view their alleged exposure to PCBs as a "violent crime",⁴ this judge is unable to perform such a semantic somersault as it would require the Court to ignore the plain meaning of that term.

Besides the ODA, the Seventh Circuit also expressed its view in Buford regarding whether the Indiana Supreme Court would recognize an intentional tort exception to the Act:

The Indiana Supreme Court's construction of the term "by accident" in the Workmen's Compensation Act does not suggest that the character of the tort is a consideration in determining the scope of the statute.... Evans supra, does not support the notion than an intentional tort/nonintentional tort dichotomy exists under the Workmen's Compensation Act.... Evans emphasized that once the statutory criteria for stating a claim under the Workmen's Compensation Act were satisfied, all common law causes of action based on that claim were necessarily preempted. Id. at 973. In doing so, the court necessarily repudiated the position adopted by the majority in National Can Corp. v. Jovanovich, 503 N.E.2d 1224 (Ind.App. 3 Dist. 1987) that public policy considerations were relevant factors in interpreting the scope of the exclusivity provision of the statute. Finally, Evans explicitly endorsed the doctrine "that exceptions should not ordinarily be declared by the courts when the legislature speaks broadly." Id. at 972. (citation omitted).

Buford, 881 F.2d at 435. This Court is bound by the analysis of the Court of Appeals and concludes...