Orzechowski v. Warner-Lambert Co., WARNER-LAMBERT

• Decision Date: 07 March 1983
• Docket Number: WARNER-LAMBERT
• Citation: 460 N.Y.S.2d 64,92 A.D.2d 110
• Parties: Tadeusz ORZECHOWSKI, et al., Plaintiffs; John Bimbo, et al., Appellants, v.COMPANY, et al., Respondents; et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 64

460 N.Y.S.2d 64

92 A.D.2d 110

Tadeusz ORZECHOWSKI, et al., Plaintiffs John Bimbo, et al., Appellants, v. WARNER-LAMBERT COMPANY, et al., Respondents; et al., Defendants.

Supreme Court, Appellate Division Second Department.

March 7, 1983.

Schekter, Aber, Rishty, Goldstein & Schechter, P.C., New York City, for appellant James Curry.

Witchel & Abraham, P.C., New York City (Milton M. Witchel and Neil Goldstein, New York City, of counsel), for appellant John Bimbo.

McHugh, Leonard & O'Conor, New York City, for respondents Warner-Lambert and American Chicle.

Arkin & Arisohn, P.C., New York City, for respondents Arthur Kraft and Ed Harris.

Andrew M. Lawler, Jr., New York City (James M. Leonard, Denis C. McMahon, Arthur T. Cambouris and Dennis E. Milton, New York City, of counsel), for respondents James O'Mahoney and John O'Rourke.

Before GULOTTA, J.P., and WEINSTEIN, NIEHOFF and RUBIN, JJ.

GULOTTA, Justice Presiding.

The principal issue raised on this appeal is whether the underlying causes of action against the plaintiffs' employer and certain of their coemployees are barred by the "finality" and "exclusivity" provisions of the Workers' Compensation Law (Workers' Compensation Law, §§ 11, 23 and 29). In our view, this question must be answered in the affirmative and the complaints dismissed as against respondents.

John Bimbo and James Curry (hereinafter plaintiffs), are two of a number of employees of defendant Warner-Lambert Company who, on November 21, 1976, were seriously injured in a fire and explosion which occurred at a manufacturing plant of the American Chicle division of that company located in Long Island City. Plaintiffs, as well as other affected employees and/or their personal representatives, thereafter commenced a series of personal injury and wrongful death actions against the various codefendants, including their employer, Warner-Lambert, the American Chicle Company, the officers and employees of Warner-Lambert who were responsible for the operation of the plant in question, and the companies responsible for producing and supplying the chemical substances and equipment which were alleged to have caused the explosion.

In the order appealed from, Special Term dismissed the complaints as against the American Chicle Company, finding that it had ceased to exist as a separate entity in 1962, after merging with and selling all of its assets to the Warner-Lambert Pharmaceutical Company (now the Warner-Lambert Company). In addition, Special Term dismissed the complaints as against the remaining defendant-respondents on the ground, inter alia, that the actions were barred by the acceptance and retention of workers' compensation benefits. At the time of the commencement of these actions in October of 1979, Bimbo and Curry had already been receiving workers' compensation benefits from their employer's insurance carrier for a period of nearly three years, and had thus far collected in excess of $110,000 and $43,000, respectively, in benefits.

We affirm.

As a quid pro quo for the swift and secure payment of benefits for injuries sustained in the course of their employment, without regard to fault (see Workers' Compensation Law, § 10), the Workers' Compensation Law general requires employees to forfeit their right to maintain a common-law tort action against their employers and coemployees for work-related injuries (see Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 159, 432 N.Y.S.2d 879, 412 N.E.2d 934; O'Rourke v. Long, 41 N.Y.2d 219, 222, 391 N.Y.S.2d 553, 359 N.E.2d 1347). Thus, section 11 of the Workers' Compensation Law specifically provides: "The liability of an employer prescribed by the last preceding section shall be exclusive and in place of any other liability whatsoever" to the injured employee or his personal representative on account of such injury or death, except in those cases in which the employer has failed to secure workers' compensation (emphasis supplied). In addition, section 29 (subd. 6) of the Workers' Compensation Law provides: "The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee, or in case of death his dependents, when such employee is injured or killed by the negligence or wrong of another in the same employ " (emphasis supplied).

Notwithstanding these statutory provisions, however, case law has developed a limited exception to the exclusivity of workers' compensation benefits as the sole remedy for an employee injured in the course of his employment, e.g., where the injury is the product of "an intentional or deliberate act by the employer directed at causing harm to [that] particular employee " (Mylroie v. GAF Corp., 81 A.D.2d 994, 995, 440 N.Y.S.2d 67, affd. 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269, emphasis supplied). Accordingly, covered employees have consistently been permitted to maintain common law causes of actions for intentional tort against their employers and coemployees where their injuries have been the product of deliberate acts undertaken to injure that particular employee or to have him injured (see, e.g., Lavin v. Goldberg Bldg. Material Corp., 274 App.Div. 690, 87 N.Y.S.2d 90, mot. for lv. to app. den. 275 App.Div. 865, 89 N.Y.S.2d 523; DeCoigne v. Ludlum Steel Co., 251 App.Div. 662, 297 N.Y.S. 636; LePochat v. Pendleton, 187 Misc. 296, 63 N.Y.S.2d 313, affd. 271 App.Div. 964, 68 N.Y.S.2d 594), and it is within this limited exception that the plaintiffs have attempted to bring themselves by alleging, inter alia, that the defendant-respondents "consciously, willfully, knowingly and intentionally ignored the hazards they created or caused to be created in and by the Freshen-Up manufacturing process [i.e., that aspect of the operation in which the explosion occurred], and/or * * * maintained same * * * notwithstanding their knowledge that physical harm would or was likely to be inflicted upon [these] plaintiff[s] and others".

The plaintiffs cannot prevail. Viewed most favorably to the plaintiffs, their allegation to the effect that defendant-respondents had "intentionally ignored" the known hazard of an explosion in connection with the design and operation of the Freshen-Up manufacturing process cannot be deemed to satisfy the case-law requirement of "specific acts" directed at causing harm to "particular employees" necessary to bring this case within the "intentional injury" exception, and is tantamount to an allegation of gross negligence, or perhaps, even reckless conduct on the part of defendant-respondents leading to an industrial accident. Unfortunately for the plaintiffs, such conduct is not excepted from the "exclusive remedy" provisions of the Workers' Compensation Law (see Mylroie v. GAF Corp., 81 A.D.2d 994, 440 N.Y.S.2d 67, affd. 55 N.Y.2d 893, 449 N.Y.S.2d 21, 433 N.E.2d 1269, supra; Finch v. Swingly, 42 A.D.2d 1035, 348 N.Y.S.2d 266; Santiago v. Brill Monfort Co., 11 A.D.2d 1041, 205 N.Y.S.2d 919, affd. 10 N.Y.2d 718, 219 N.Y.S.2d 266, 176 N.E.2d 835; Artonio v. Hirsch, 3 A.D.2d 939, 163 N.Y.S.2d 439). ¹

Assuming, arguendo, however, that the plaintiffs had been able to allege sufficient acts on the part of defendant-respondents to bring themselves within the foregoing exception, the fact remains that they would still be barred from maintaining these causes of action against their employer, as the Court of Appeals has recently held that a claimant "who applies for, is awarded and accepts workers' compensation death benefits is barred by the exclusive remedy and finality provisions of the Workers' Compensation Law from maintaining a wrongful death action against the deceased worker's former employer for intentional [injury, e.g., an] assault" (Werner v. State of New York, 53 N.Y.2d 346, 348-349, 441 N.Y.S.2d 654, 424 N.E.2d 541, emphasis supplied). In addition, and with particular relevance to this case, the Court of Appeals has even more recently extended the rule of Werner to a nondeath case in which compensation benefits were neither applied for nor accepted by the plaintiff-employee, stating:

"The Workers' Compensation Board having properly acquired jurisdiction with respect to an employee's injuries, the board's determination that those injuries were accidental and occurred within the course of her employment is binding between the parties under the exclusive remedy and finality provisions of the Workers' Compensation Law and, even though the employee did not herself apply for or accept benefits, is, until set aside, a bar to an action by the employee against her employer for damages based on intentional tort" (O'Connor v. Midiria, 55 N.Y.2d 538, 539, 450 N.Y.S.2d 455, 435 N.E.2d 1070, affg 85 A.D.2d 896, 446 N.Y.S.2d 739).

In our view, O'Connor v. Midiria (supra ) is controlling in the case at bar. ²

In the O'Connor case (supra ), the plaintiff, Michaeline O'Connor, alleged that she had been intentionally assaulted on September 17, 1978 by a coemployee during the course of her employment. A report of the injury was thereafter filed with the Workers' Compensation Board by the plaintiff's employer and her physician (but not the plaintiff), and a finding of a compensable injury was made. In October of 1978, the plaintiff apparently began receiving workers' compensation benefits, but on the advice of her attorney the checks were returned with the explanation that a civil action was contemplated. The board, however, persisted in mailing the benefit checks to the plaintiff, which were thereafter retained by her attorney without cashing. A civil action was then commenced in which the plaintiff sought to recover monetary damages from her employer and coemployees for injuries arising out of the alleged assault, whereupon the employer moved for summary judgment in its favor on the ground that the action was barred by the workers' compensation award. In affirming the order of the Appellate Division granting the employer's motion and dismissing the complaint as...