McGreevy v. Racal-Dana Instruments, Inc.

• Decision Date: 08 July 1988
• Docket Number: Civ. A. No. 88-0300-A.
• Citation: 690 F. Supp. 468
• Court: U.S. District Court — Eastern District of Virginia
• Parties: John E. McGREEVY, Plaintiff, v. RACAL-DANA INSTRUMENTS, INC. and Gordon Taylor and Brian G. Hull, Defendants.

690 F. Supp. 468

John E. McGREEVY, Plaintiff, v. RACAL-DANA INSTRUMENTS, INC. and Gordon Taylor and Brian G. Hull, Defendants.

Civ. A. No. 88-0300-A.

United States District Court, E.D. Virginia, Alexandria Division.

July 8, 1988.

Alfred S. Bryant, Thomas E. McCabe, Washington, D.C., for plaintiff.

Kenneth B. Weckstein, Epstein Becker & Green, P.C., Alexandria, Va., for defendants.

MEMORANDUM OPINION

ELLIS, District Judge.

This is essentially an employment contract dispute. It presents the question, unsettled in this jurisdiction, whether there exists an "employer intentional tort exception" to the exclusivity provision of the Virginia Worker's Compensation Act (WCA).¹ Given that the WCA is modeled after the Indiana Act and that the courts of that state, for manifestly sound reasons, have adopted such an exception, this Court does so here. Thus where an employer commits an intentional tort with the intent to injure an employee, this Court concludes that an action by that employee is not barred by the WCA.

FACTS

Plaintiff, John McGreevy, brings this suit asserting, inter alia, a claim of intentional infliction of emotional distress against his former employer, defendant Racal-Dana, and its corporate officers, defendants Taylor and Hull. While motions have targeted other counts of the Complaint,² only the claim of intentional infliction of emotional distress raises the WCA issue. Accordingly, this Memorandum Opinion focuses only on that count of the Complaint.

In April 1982, Racal-Dana, a California corporation, employed plaintiff to promote and sell Racal-Dana's products to the Department of Defense and its prime contractors. Plaintiff worked on a commission basis. Plaintiff alleges he generated so much business that defendants Hull and Taylor became "jealous" of plaintiff's income and "manipulated" plaintiff's sales results to deprive plaintiff of his sales commissions. First Amended Complaint at ¶ 22. With respect to plaintiff's claim of intentional infliction of emotional distress, he alleges that defendants intentionally and maliciously threatened, embarrassed, slandered and "blacklisted" plaintiff and published a report to the Virginia State Employment Commission stating that plaintiff was terminated for "willful misconduct." First Amended Complaint at ¶¶ 28, 33.

Defendant Racal-Dana moves to dismiss plaintiff's claim of intentional infliction of emotional distress for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), Fed.R.Civ.P., asserting that plaintiff's claim is barred by the exclusivity provision of the WCA. For the reasons set forth, Racal-Dana's motion is denied.

ANALYSIS

The Court holds that plaintiff's claim for intentional infliction of emotional distress against defendants is not barred by the exclusivity provision of the WCA because defendants' acts, as alleged, were committed with the intent to injure plaintiff, and therefore cannot properly be described as "accidents."

In order for the exclusivity provision of Virginia's WCA to bar plaintiff's tort claims against his employer, his injury (i) must have arisen in the course of his employment, (ii) must have arisen out of his employment, and (iii) must have been an injury by accident. Va.Code Ann. § 65.1-7, -40 (Repl. Vol. 1987). Here, it is not seriously disputed that plaintiff's alleged injury arose out of and in the course of his employment. An injury arises out of the employment when the injury can be fairly traced to the employment as at least a contributing cause. Conner v. Bragg, 203 Va. 204, 208-09, 123 S.E.2d 393, 396-97 (1962). An injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be in connection with the employment, and while he is reasonably fulfilling his employment duties. Conner, 203 Va. at 208, 123 S.E.2d at 396. These criteria are plainly met here; plaintiff's alleged injury is easily traced to his employment and it certainly occurred in the course of his employment. See Haigh v. Matsushita Electric Corp., 676 F.Supp. 1332, 1353 (E.D.Va.1987) (alleged intentional infliction of emotional distress as a result of job transfer and termination was injury arising out of and in the course of employment). The first two prongs of the exclusivity bar have therefore been met in the instant case. The issue thus becomes whether defendant's alleged intentional tort can be considered an "accident."

The Virginia Supreme Court has defined "accident" as "an event happening without any human agency, or, if happening through human agency, an event which, under the circumstances, is unusual and not expected by the person to whom it happens." Big Jack Overall Co. v. Bray, 161 Va. 446, 447, 171 S.E. 686, 687 (1933) (quoting Vance on Insurance), cited in Haigh v. Matsushita Electric Corp., 676 F.Supp. 1332, 1353 (E.D.Va.1987).³ In addition, Virginia recognizes, as do other states, that an assault by a coemployee or third person may be considered an "accident." See Continental Life Insurance v. Gough, 161 Va. 755, 172 S.E. 264 (1934). Although defining an intentional tort as an accident seems contrary to common sense, this problem "was overcome by the simple expedient of viewing the affair from the point of view of the victim rather than of the assailant, since from the victim's point of view the assault was an unexpected and untoward mishap." 2A Larson, Workmen's Compensation § 68.12. Here, defendant urges the Court to apply the traditional definition of accident and hold that its alleged acts, although intentional, were accidental under the WCA. This position has the appeal of simplicity and is not without support. See Haigh, 676 F.Supp. at 1353 (events resulting in employee's emotional distress were accidental where they occurred through human agency and were not expected by the person to whom it happened). Ultimately, however, policy, principle, and precedent point persuasively, if not conclusively, in the opposite direction.

Professor Larson, a noted scholar and author in the field of worker's compensation, suggests that in determining whether an incident was an "accident," the incident should be viewed from the perspective of the person seeking the protection of the act. In some instances, therefore, the proper perspective is that of the employer. "When the employee seeks to recover benefits, the question is whether the injury was an accident from the employee's perspective; if the employer seeks to impose the accident requirement as a defense, the question is whether the injury was an accident from the employer's perspective." Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 888 (1986) (citing 2A Larson, Workmen's Compensation § 68.12)). Accordingly, where the incident arrives in court not as a compensation claim, but as a damage suit against an employer-assailant, then "it is the employer who must affirmatively plead the exclusiveness of the act as a defense. To do this he must allege that the injury was an accident—and how can he do this, when he himself has deliberately produced it?" 2A Larson, Workmen's Compensation § 68.12.

The result of Larson's cogent analysis has been the adoption by numerous courts of the "intentional tort" exception to worker's compensation exclusivity provisions.⁴ Significantly, Indiana courts are among this group. This is significant because, as is well recognized, Virginia's WCA is modeled after the Indiana Act "so that the construction placed upon the Indiana law by the Courts of that state merits our consideration." Barksdale v. H.O. Engen, Inc., 218 Va. 496, 498, 237 S.E.2d 794, 796 (1977). This Court is thus persuaded that Virginia would follow Professor Larson's reasoning and Indiana's lead and adopt such an exception.

Sound policy reasons support this result. The justification for making workers' compensation an exclusive remedy is a trade-off: the employee gives up the right to sue the employer in tort in exchange for the employer's abandonment of the defenses of contributory negligence and assumption of risk. Yet here, if plaintiff is relegated to his workers' compensation remedy, he will be deprived of his tort remedy without receiving any concomitant benefit. See Tolbert v. Martin Marietta Corp., 621 F.Supp. 1099, 1103 (D.Colo.1985) ("if plaintiff is relegated to her worker's compensation remedy in intentional tort cases, she will be deprived of her tort remedy without receiving any off-setting benefits"); see also Jablonski v. Multack, 63 Ill.App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924 (1978) (applying intentional tort exception to acts of co-employee, thus WCA not a bar to a common-law action for damages by a fellow worker). Thus, the underlying rationale of the WCA is inapplicable to this plaintiff's claim of intentional infliction of emotional distress.

The Court recognizes that its decision here is in conflict with that of Judge Spencer in Haigh v. Matsushita Electric Corp., 676 F.Supp. 1332 (E.D.Va.1987). There, plaintiff brought a Title VII age discrimination and state tort law suit against his former employer asserting, inter alia, a claim for intentional infliction of emotional distress arising from the employer's alleged blacklisting and slandering plaintiff and subjecting him to humiliation, embarrassment, and mental anguish. Judge Spencer dismissed plaintiff's emotional distress claim, holding that Virginia's WCA provided the exclusive remedy. Judge Spencer stated that "it is quite conceivable and possible" that the Virginia Supreme Court would recognize the intentional tort exception, but found it more probable that it would not because the Virginia General Assembly knew of the exception from other jurisdictions but did not act to recognize it. 676 F.Supp. at 1354. Judge Spencer also found that the creation of the exception "is a monumental step, and not one to be taken lightly. The Act is a result of a compromise between employers and employees, and as...