Nutt v. A.C. & S., Inc.
| Decision Date | 15 April 1983 |
| Citation | 466 A.2d 18 |
| Court | Delaware Superior Court |
| Parties | Earl R. NUTT, et al., Plaintiffs, v. A.C. & S., INC., et al., Defendants. George R. RICKARDS, et al., Plaintiffs, v. A.C. & S., INC., et al., Defendants. Charles MERGENTHALER, et al., Plaintiffs, v. ASBESTOS CORPORATION OF AMERICA, INC., et al., Defendants. Randolph PANNELL, et al., Plaintiffs, v. ASBESTOS CORPORATION OF AMERICA, INC., et al., Defendants. . Submitted: |
Defendants' Motion to Dismiss Certain Claims. Granted.
Robert Jacobs, and Thomas C. Crumplar, (argued) of Jacobs & Crumplar, Wilmington and William J. Wier, Jr., (argued) of Kreshtool, Wier & Waserstein, Wilmington, for plaintiffs.
Mary Pat Trostle, (argued) of Biggs & Battaglia, Wilmington, for defendants Haveg Industries and Hercules, Inc.
James W. Semple, (argued) of Morris, James, Hitchens & Williams, Wilmington, for defendants Pittsburgh Corning Corp. and Herty Foundation.
Catherine B. Hagerty, Rick A. Harrington, and Edward W. Schall, of E.I. du Pont de Nemours and Company, Wilmington and Thomas L. Morrissey, (argued) of Carpenter, Bennett & Morrissey, Newark, N.J., of counsel, for defendant E.I. du Pont de Nemours and Co.
Jeffrey S. Marlin, of Tybout, Redfearn, Casarino & Pell, Wilmington, for defendant Southern Textile.
Douglas B. Catts, of Schmittinger & Rodriguez, Dover, for defendant Celotex Corp.
Roger A. Akin, of H. Murray Sawyer, Jr., P.A., Wilmington, for defendant Pacor, Inc.
James T. McKinstry, of Richards, Layton & Finger, Wilmington, for defendant Owens-Corning Fiberglas Corp.
Stuart B. Young, of Young, Conaway, Stargatt & Taylor, Wilmington, for defendants Fibreboard Corp. and Hollingsworth & Vose Co.
Richard P.S. Hannum, of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for defendants Keene Corp. and Gale Corp.
Samuel R. Russell, of Biggs & Battaglia, Wilmington, for defendant A. C. & S., Inc.
Howard M. Berg, of Howard M. Berg & Associates, P.A., Wilmington, for defendant Nicolet, Inc.
J.R. Julian, of J.R. Julian Professional Association, Wilmington, for defendant GAF Corp.
Walter L. Pepperman, II, of Morris, Nichols, Arsht & Tunnell, Wilmington, for defendant Lake Asbestos of Quebec, Ltd. John C. Phillips, Jr., Wilmington, for defendants Mead Paper Specialty and Powhatan Mining Co.
These four cases have been consolidated for the purpose of deciding certain common issues. They involve claims by present or former asbestos workers and their spouses against employers and third parties who allegedly supplied asbestos products to which the plaintiff employees were exposed during the course of their employment. The employer-defendants, E.I. du Pont de Nemours and Company (du Pont) and Haveg Industries, Inc. (Haveg) have moved to dismiss the amended complaints of their respective employees on the ground that the claims asserted are not cognizable under Delaware law. The remaining defendants who are manufacturers, processors or suppliers of asbestos products have also moved to dismiss certain of the amended claims. For convenience these defendants will be referred to as the "supplier-defendants," although it is recognized that their roles in the asbestos field may encompass other activities. Each of the supplier-defendants has adopted the briefing position asserted by one of their number, Pittsburg Corning Corporation.
The claims here under attack essentially fall within two categories: (1) the loss of causes of action against third parties because of concealment of asbestos hazards and (2) the claims of the wives of asbestos workers for mental anguish and loss of consortium. Because the legal significance of these claims differ between the employer-defendants and the supplier-defendants they will be separately addressed.
While the language of the various complaints varies, in essence the plaintiff-employees charge that the defendants, both employers and suppliers, misled them into believing that it was safe to work in close proximity to asbestos materials; suppressed information of the danger of such exposure and failed to provide protective devices and medical monitoring. The losses which plaintiffs allege result from such acts of omission and commission by du Pont are set forth in identical language in Count IV of the Nutt complaint and Count V of Rickards.
29. Paragraphs 1 through 28 are incorporated herein by reference.
30. As a result of the described wrongful conduct by all defendants, including E.I. DuPont, plaintiffs have lost their rights to pursue an action for breach of warranty under § 2-313, 314, 315 and 318 of Title VI of the Delaware Code.
31. As a further result of the wrongful conduct by all the defendants, including E.I. DuPont, plaintiffs have lost their rights to pursue an action for personal injuries against various health care providers.
Claims against Haveg, set forth in the amended Mergenthaler and Pannell complaints are cast in similar language.
The employer-defendants argue that the exclusive remedy of workmen's compensation is a bar to any tort claim which has its basis in the employment giving rise to it. 1 Plaintiffs maintain that their claim for lost causes of action is based on the deceit of the employers and gives rise to a separate tort claim.
In Kofron v. Amoco Chemicals Corp., Del.Supr., 441 A.2d 226 (1982), the scope of the exclusive remedy bar to employment related asbestos claims was broadly stated. It was there held that all acts of an employer, of whatever degree of negligence or intentional misconduct, fall within the exclusivity bar. One of the instant cases, Nutt v. A.C. & S., et al., was a companion case to Kofron and was the subject of a specific holding to the effect that the alleged intentional acts of du Pont as an employer, in concealing known asbestos hazards, was also immune to common law suit. The "lost causes of action" claims in Nutt were added to the complaint by amendment after the Supreme Court's ruling.
Decisions in which the shield of employer immunity has been pierced are helpful in illustrating the type of employer activity which supports a common law tort action. Thus, a separate tort claim is sustainable against an employer who seeks, through collusion with an insurance carrier, to prevent the employee from pursuing a workmen's compensation claim. See e.g., Broaddus v. Ferndale Fastener Division, Mich.App., 84 Mich.App. 593, 269 N.W.2d 689 (1978); Ramey v. General Petroleum Corporation, Cal.App., 173 Cal.App.2d 386, 343 P.2d 787 (1959). But, as was noted in Broaddus, the claim is limited to the emotional and mental distress occasioned by the wrongful conduct and not the physical injuries which were the basis for the underlying workmen's compensation claim. If the action is essentially a recovery for physical injury, it is barred, even if cast in the form of non-physical tort. 2A Larson, Workmen's Compensation Law, § 68.34(a), pp. 13.61-13.62. Similarly, if the emotional distress is simply a component of an underlying physical injury it would be recoverable only in connection with the workmen's compensation claim. A pure non-physical tort, however, could be the basis for a separate tort claim. Battista v. Chrysler Corp., Del.Super., 454 A.2d 286 (1982) (defamation); Pirocchi v. Liberty Mutual Insurance Co., E.D.Pa., 365 F.Supp. 277 (1973) (destruction of evidence).
Apart from the effect of the deceit, a further distinction exists with respect to the time of the alleged deceit. If the fraud, such as concealment of the hazards of the workplace, occurs before the physical injury, the deceit is deemed to have merged with the circumstances of employment and be actionable only through workmen's compensation. Gambrell v. Kan. City Chiefs Football Club, Mo.App., 562 S.W.2d 163 (1978); Foley v. Polaroid Corp., Mass.Supr., 381 Mass. 545, 413 N.E.2d 711 (1980).
The causes of action allegedly lost by the plaintiff-employees against health care providers presumably involves the rendering of medical care for illnesses which were asbestos related. Similarly, the lost claims of breach of warranty involve the same physical ailments for which workmen's compensation benefits were available. Since entitlement to workmen's compensation benefits arises at the time the occupational disease is manifested regardless of exposure, Alloy Surfaces Company v. Cicamore, Del.Supr., 221 A.2d 480 (1966), the employers' duty to respond through workmen's compensation is later than, or contemporaneous with, the alleged acts of deceit concealing their cause. In essence, the knowledge of the diseases and the right to invoke the remedy of workmen's compensation post-dates whatever fraud is alleged to have occurred. For recovery purposes then, the antecedent deceitful acts of the employer are deemed merged in the recovery afforded by the workmen's compensation remedy. As Chancellor Brown noted in his concurring opinion in Kofron, the effort of asbestos employees to circumvent the exclusive remedy feature of the Delaware Workmen's Compensation Act by attempting to distinguish between the "manner in which the occupational disease was caused" and "the fact that it was incurred during the course of employment" assumes a statutory exception that does not exist and which can be created only at the legislative level. (441 A.2d 232 and 233).
As a corollary of Kofron, it must be concluded that fraud or deceit on the part of any employer, which occurs prior to the manifestation of the injury or disease and which prevents the employee from filing claims against third parties for the same physical injuries or disease giving rise to a claim for workmen's compensation, is not separately actionable. Accordingly, the motion of du Pont and Haveg to dismiss the claim for lost causes of action must be granted.
The plaintiff-employees claim for lost causes of action based on fraud which has been asserted against the supplier-defendants is more difficult to...
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