Cole v. Fair Oaks Fire Protection Dist.

Decision Date02 January 1987
Docket NumberS.F. 24919
Citation43 Cal.3d 148,233 Cal.Rptr. 308,729 P.2d 743
CourtCalifornia Supreme Court
Parties, 729 P.2d 743, 55 USLW 2395, 1 IER Cases 1644 Leonard COLE et al., Plaintiffs and Appellants, v. FAIR OAKS FIRE PROTECTION DISTRICT et al., Defendants and Respondents.

Jed Scully and Scully & Scully, Sacramento, for plaintiffs and appellants.

Joseph Posner, Encino, as amicus curiae on behalf of plaintiffs and appellants.

Bolling, Walter & Gawthrop, Donald S. Walter and George E. Murphy, Sacramento, for defendants and respondents.

Irell & Manella, James N. Adler, Gregory R. Smith, Keith B. Bardellini and David I. Gindler, Los Angeles, as amici curiae on behalf of defendants and respondents.

BROUSSARD, Justice.

The main issue presented is whether an employee may maintain a civil action in the courts for intentional infliction of emotional distress against his employer and fellow employee when the conduct complained of has caused total, permanent, mental and physical disability compensable under workers' compensation law. We conclude that when the employee's claim is based on conduct normally occurring in the workplace, it is within the exclusive jurisdiction of the Workers' Compensation Appeals Board.

The trial court sustained the demurrer of defendants, Fair Oaks Fire Protection District and its assistant fire chief, without leave to amend on the ground that plaintiffs' claims came within the exclusive jurisdiction of the Workers' Compensation Appeals Board. The Court of Appeal affirmed as to eight of the ten causes of action alleged but reversed with directions to permit amendment of the complaint as to causes of action for defamation and for false light invasion of privacy. We granted plaintiffs' petition for review. There is no challenge to the Court of Appeal's holding that the causes of action for defamation and privacy are not barred by the exclusive remedy provisions of the Labor Code. Plaintiffs challenge the Court of Appeal determination that their other claims are within the exclusive jurisdiction of the board.

The allegations of the complaint may be summarized as follows: 1

Leonard Cole enlisted as a volunteer firefighter in 1964 with the district, and in the next year he was appointed a full-time firefighter. In 1970 he was appointed engineer, and in 1977 he was promoted to captain. In March 1981 he was elected union representative and continued to serve in that capacity until April 1982.

In October 1981, he was diagnosed as having high blood pressure. His physician recommended rest and recreation. In February 1982 he was examined and again found to have elevated blood pressure. He was placed on medication. The elevated blood pressure was due to unreasonable stress and pressure by the assistant chief. As union representative Cole negotiated questions of contractual interpretation with management, and the assistant chief, although formerly the union representative, deliberately harassed him in the negotiations.

On one occasion the assistant chief demanded that Cole report to a meeting for performance evaluation and possible disciplinary action and refused to excuse him to attend a funeral.

Although Cole had repeatedly received superior performance ratings, the assistant chief devised a novel personnel evaluation procedure for Cole for the purpose of punishing him for his union activities. Cole was informed by various members of the fire department that the assistant chief and members of the management intended to take punitive action against him because of his union activities.

On May 11, Cole was placed on sick leave because of his hypertension. A doctor employed by the assistant chief reported that the level of hypertension disabled Cole from performing heavy duty and that he should be restricted to light duty until his blood pressure was better controlled.

Thereafter, the assistant chief notified him by mail that he was to present himself at a disciplinary hearing on June 3, 1982. The letter falsely asserted dishonesty as one of the grounds for the hearing. It stated that Cole had stated falsely that he was on workers' compensation and that he had been told by a county safety official not to report to work. 2 The assistant chief conducted the hearing before a panel of battalion chiefs. The hearing was a "kangaroo" proceeding.

Thereafter, on June 28, 1982, Cole was demoted to engineer, and was publicly stripped of his captain's badge. The assistant chief assigned him to perform "humiliating and menial duties," and he was ordered to return to duty from sick leave and assigned to work as a dispatcher, an entry level position.

On October 18, 1982, the Board of Directors of the Fair Oaks Fire Protection District reversed Cole's demotion and reinstated him as a captain at a reduced salary and placed him on probationary status. The assistant chief continued his harassment and sometime between July and September 1982, the assistant chief filed an application with the state to force Cole to retire involuntarily.

Cole's blood pressure was elevated by the continuous harassment, and on November 8, 1982, he suffered a severe and totally disabling cerebral vascular accident. He cannot move, care for himself, or communicate other than by blinking.

I. THE STATUTES

The pertinent code sections were amended by the Legislature in 1982. The pre-1982 statutes are applicable to the instant case because Cole suffered his stroke prior to the effective date of the 1982 legislation. "It is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent." (Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393, 182 P.2d 159.) If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive "because the legal effects of past events would be changed, and the statute will be construed only to operate in futuro unless the legislative intent to the contrary clearly appears." (Id., at p. 394, 182 P.2d 159; DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 173, 18 Cal.Rptr. 369, 367 P.2d 865.) In the absence of a showing that the Legislature intended the 1982 amendments to be applied retroactively, two Courts of Appeal have concluded that the substantive changes of the 1982 legislation do not apply retroactively. (Perry v. Heavenly Valley (1985) 163 Cal.App.3d 495, 500-505, 209 Cal.Rptr. 771; Horney v. Guy F. Atkinson Co. (1983) 140 Cal.App.3d 923, 930, fn. 4, 190 Cal.Rptr. 18.) So far as appear there is no legislative history to the contrary. While it may be true, as defendants argue, that the Legislature constitutionally could have made the 1982 amendment retroactively effective, it is unnecessary to reach that issue since under established canons of interpretation it must be presumed that the Legislature did not intend retroactive application.

When Cole was injured, Labor Code section 3600 3 provided in pertinent part: "Liability for the compensation provided by this division, in lieu of any other liability whatsoever to any person ... shall without regard to negligence, exist against an employer for any injury arising out of and in the course of employment...." 4

Section 3601 provided that where the "conditions of compensation exist," the right to recover compensation is "the exclusive remedy" for injury or death of an employee against the employer or coemployee acting within the scope of employment except that an employee shall "in addition to the right of compensation against the employer, have a right to bring an action at law for damages against such other employee," when the injury is proximately caused by the willful and unprovoked "physical" act of aggression of such other employee. 5

Prior to the 1982 amendments, section 4553 provided for an increase in the amount of compensation by one-half up to $10,000, where the employee was injured by the serious and willful misconduct of the employer, the employer's managing representative, or general superintendent. 6 The employer may not insure against an award under section 4553 although an insurer may provide insurance for the cost of defending against any "suit" for serious and willful misconduct of the employer or his agent. (Ins.Code, § 11661; Mercer- Fraser Co. v. Industrial Acc. Com. (1953) 40 Cal.2d 102, 108, 251 P.2d 955.)

II. CASES INVOLVING EMPLOYER'S INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

A number of Court of Appeal cases have addressed the question whether the exclusive remedy provisions of the compensation act prior to the 1982 amendment preclude an action for intentional infliction of emotional distress. 7

Renteria v. County of Orange (1978) 82 Cal.App.3d 833, 838 et seq., 147 Cal.Rptr. 447, held that an employee could maintain an action for intentional infliction against the employer where there was no physical injury or disability. The court pointed out that, unless an action at law were permitted in cases where there was no physical injury or disability, the employee would be left without any remedy whatsoever for the intentional tortious conduct. (82 Cal.App.3d at p. 839, 147 Cal.Rptr. 447.) The court also reasoned that, like defamation, the action for intentional infliction of emotional distress is part of a class of civil wrongs outside the contemplation of the workers' compensation system and that the need to deter intentional wrongdoing was not met by the penalty provisions of section 4553 providing for a 50 percent surcharge because "50 percent of nothing is still nothing." (82 Cal.App.3d at p. 841, 147 Cal.Rptr. 447.) The court stated that if the essence of the tort is nonphysical and injuries are of a nonphysical sort with physical harm being at most a makeweight the action should not be barred. (82 Cal.App.3d at p. 842, 147 Cal.Rptr. 447.) A number...

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