Coffey v. Foamex L.P.

• Citation: 2 F.3d 157
• Decision Date: 06 August 1993
• Docket Number: No. 92-5990,92-5990
• Parties: Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 157

2 F.3d 157

26 Fed.R.Serv.3d 417

Clayton COFFEY, et al., Plaintiffs-Appellants, v. FOAMEX L.P., and Recticel Foam Corporation, Defendants-Appellees.

No. 92-5990.

United States Court of Appeals, Sixth Circuit.

Submitted June 18, 1993.

Decided Aug. 6, 1993.

Sidney W. Gilreath, Richard Baker, Jr. (briefed), Gilreath & Associates, Knoxville, TN, for plaintiffs-appellants.

Charles T. Herndon, IV (briefed), Johnson City, TN, Henry W. Killeen, III, Harris, Beach & Wilcox, Buffalo, NY, for defendants-appellees.

Before: MERRITT, Chief Judge; and GUY and BATCHELDER, Circuit Judges.

BATCHELDER, Circuit Judge.

Plaintiffs, three employees of defendants, and their wives, filed a complaint in District Court on October 11, 1991, claiming the plaintiffs (including their wives and children) suffered neurological injuries and illness caused by their exposure to chemicals at the workplace, primarily a chemical known as "TDI." They claimed that the defendants "actively practiced fraud upon the plaintiffs" by failing to warn them of the dangers of contamination and by maintaining a hazardous work environment of which the plaintiffs were unaware. The complaint included a loss of consortium claim on behalf of the wives. The same three employees had each earlier filed state workers' compensation claims, and received benefits, for respiratory problems they said were caused by chemical exposure.

The defendants filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that plaintiffs had failed to state a claim upon which relief may be granted, and that the claims were barred under the exclusivity provisions of the Tennessee workers' compensation law. Plaintiffs amended their complaint on February 28, 1992 to show proper diversity of citizenship.

On March 4, 1992, the District Court dismissed the complaint in part, treating defendants' motion and attached affidavits as a motion for summary judgment. The District Court denied defendants' motion to dismiss the wives' personal injury claims. On appeal, we dismissed sua sponte, holding that the order was not final and appealable since it had preserved the wives' claims. Coffey v. Foamex, 966 F.2d 1451 (6th Cir.1992). Plaintiffs voluntarily dismissed these remaining claims without prejudice on July 16, 1992, rendering the order final and appealable. They filed a timely notice of appeal on July 22, 1992.

Plaintiffs claimed that defendants' fraud consisted of failure to warn them about the dangers of exposure to the chemicals, false representations about the chemicals' safety, and failure to disclose their knowledge about the dangers to plaintiffs, who lacked such information; these acts rose to the level of intentional tort. Plaintiffs now argue that since Tennessee recognizes fraud as an intentional tort, the Tennessee workers' compensation law does not bar their lawsuit. The injuries claimed in the suit at bar, they insist, are not the same as those for which they were compensated under workers' compensation; payments and settlements plaintiffs agreed to in the context of the earlier claim do not bar them from recovering for subsequent injuries caused by further contamination. We disagree.

We review grants of summary judgment motions de novo. In reviewing a summary judgment disposition, the Court of Appeals must determine whether the party opposing the motion has put forth evidence which, if produced at trial, would withstand the movant's motion for a directed verdict. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Bare allegations by the non-moving party will not alone suffice; they must be supported by sufficient evidence such that "reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Mitchell v. Toledo Hospital, 964 F.2d 577, 581-82 (6th Cir.1992) (quoting Liberty Lobby, 477 U.S. at 252, 106 S.Ct. at 2512). Where the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial," granting the motion for summary judgment is appropriate. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

1. Exclusivity of remedy under Tennessee workers' compensation law.

The Tennessee Workers' Compensation Law ¹ provides:

Right to compensation exclusive--(a) The rights and remedies herein granted to an employee subject to the Workers' Compensation Law on account of personal injury or death by accident ... shall exclude all other rights and remedies of such employee ... at common law or otherwise, on account of such injury or death.

Tenn.Code Ann. Sec. 50-6-108 (1991). As in other jurisdictions, the courts have carved out an exception for intentional torts committed by an employer against an employee, see Cooper v. Queen, 586 S.W.2d 830, 833 (Tenn.App.1979) (Tenn. cert. denied ); these torts give rise to a common law action for damages, id.

However, the Tennessee courts have consistently defined the scope of the intentional tort exception narrowly, holding that "gross or criminal negligence" is not considered an intentional tort for this purpose. Cooper, 586 S.W.2d at 833. The Cooper court explained, quoting a treatise on workers' compensation law:

Since the legal justification for the common law action is the non-accidental character of the injury from the defendant employer's standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, willful, deliberate, intentional, wreckless, [sic] culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.

Id., (quoting Larson, Workmen's Compensation (desk ed.) Sec. 68.10). The court approvingly cited two cases from other jurisdictions in which "gross or criminal negligence" had been held not to constitute intentional torts; both cases involved employers which had "knowingly permitted a hazardous work condition to exist" and nonetheless directed workers to work in such conditions. Id. at 833-834.

While the Tennessee Supreme Court has never given its specific imprimatur to the intentional tort exception, the Tennessee courts have stuck with Cooper and have not extended its rule. In King v. Ross Coal, 684 S.W.2d 617 (Tenn.App.1984), the court followed Cooper and expounded on the rationale behind the narrow exception.

The Workers' Compensation Law takes away from the employee his common law rights and gives him others, on the guarantee that these substituted rights shall be generously awarded, both for foregoing his common law rights and in consideration of the obligations of his employer to keep his employee from becoming a public charge. The legislature has made the rights of the employee and employer the exclusive remedy. Those who accept benefits under an act of this kind must likewise take the burdens.

King, 684 S.W.2d at 619-20 (citations omitted). The King court restated the requirement that the plaintiff show "actual intent ... to cause injury.... We hold that it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort." Id. at 620. In continuing this line of cases, the Court of Appeals has declined to adopt the arguments of plaintiffs who argue for a less stringent standard such as the "substantially certain [to cause injury]" standard for intentional tort. "Any departure from the stated public policy of this jurisdiction must come from the legislature or the Supreme Court." Mize v. Conagra, 734 S.W.2d 334, 336 (Tenn.App.1987).

2. Fraud as an intentional tort falling within the exception.

In Brewer v. Monsanto Corp., 644 F.Supp. 1267 (M.D.Tenn.1986), plaintiffs alleged, among other things, that their employer fraudulently concealed from them the "true nature" of PCB chemical contamination which ultimately caused them injury. Brewer, 644 F.Supp. at 1270. Noting that under Cooper, a corporation cannot perpetrate a tort "in person" upon an employee, and that an intentional tort by a co-employee is actionable, but not directly against the employer, the court held that "a corporate employer [is] liable for intentional torts carried out at the behest of the corporate employer but through corporate employees." Id. at 1275. Since fraud is an intentional tort under Tennessee law, id. (citing Wynne v. Allen, 66 Tenn. 312 (7 Baxt.) (1874)), it falls outside the exclusivity provisions of the Workers' Compensation Law.

The problem with Brewer ² is its assumption that since the Tennessee courts consider fraud to be an intentional tort, allegations of fraud resulting in worker injury necessarily fall outside the workers' compensation scheme. As the Tennessee cases show, the existence of the defendant's actual intent, not the nature of the tort, determines whether common law suit is permitted; again, "it takes more than a mere inference of tortious intent to convert the defendant's negligence into an intentional tort." King, 684 S.W.2d at 620. See also Cooper, 586 S.W.2d at 833 ("There is a distinct difference in fact and law between gross or criminal negligence and actual intent to injure."). Cases in which an employer "knowingly permit[s] a hazardous work condition to exist [or] knowingly order[s] claimant to perform an extremely dangerous job ... fall[ ] short of the kind of actual intention to injure that robs the injury of accidental character." Mize, 734 S.W.2d at 336 (quoting King, 684 S.W.2d at 619); see also Gonzales v. Alman Construction Co., 857 S.W.2d 42, 48 (Tenn.App.1993) ("The law in this State provides that a breach of the employer's duty to provide a safe place to work is not equated with an actual intent to injure nor with intentional tortious conduct."). To permit a...