Provo v. Bunker Hill Company

• Citation: 393 F. Supp. 778
• Decision Date: 26 February 1975
• Docket Number: Civ. No. 2-73-49.
• Parties: Steve PROVO, Plaintiff, v. BUNKER HILL COMPANY, a corporation, et al., Defendants.
• Court: U.S. District Court — District of Idaho

393 F. Supp. 778

Steve PROVO, Plaintiff, v. BUNKER HILL COMPANY, a corporation, et al., Defendants.

Civ. No. 2-73-49.

United States District Court, D. Idaho.

February 26, 1975.

Truman Castle, of Bangs & Castle, Seattle, Wash., Eli Rapaich of Rapaich & Knutson, Lewiston, Idaho, for plaintiff.

R. B. Kading, Jr., of Eberle, Berlin, Kading, Turnbow & Gillespie, Boise, Idaho, William F. Boyd of Brown, Peacock, Keane & Boyd, Kellogg, Idaho, E. L. Miller, Coeur d'Alene, Idaho, Reed Clements, Lewiston, Idaho, Cope R. Gale, Moscow, Idaho, Wayne P. Fuller, Caldwell, Idaho, for defendants.

MEMORANDUM DECISION AND ORDER

J. BLAINE ANDERSON, District Judge.

CASE SUMMARY

This action, before the Court on defendant Bunker Hill Company's motion for summary judgment, arises as alleged in the complaint from serious injuries sustained by the plaintiff while working in defendant's smelter plant. On October 4, 1971, plaintiff, age 20, suffered severe burns to his face, eyes, throat and upper portions of his body when molten zinc burst from an uncovered pot. Plaintiff has received and is still receiving Workmen's Compensation payments, but challenges the defense contention that the Workmen's Compensation Act, I.C. 72-101, et seq., gives Bunker Hill Company an absolute defense against common law suits by employees.

Plaintiff relies on three theories of liability outside the Workmen's Compensation Act and in that regard asserts that there are substantial and genuine questions of fact as to whether or not: (a) defendant's knowledge of numerous similar occurrences and callous disregard of such risk amounts to an intentional tort committed upon the plaintiff which cannot be said "to arise out of and in the course of employment" or be deemed an "accident" as those terms are defined under Idaho law, (b) defendant is liable under the dual capacity doctrine for negligent failure to provide proper safety equipment, and lastly, (c) that plaintiff, as a member of the Northwest Metal Workers' Union at the time of his injury, was a third-party beneficiary of a labor management agreement between Bunker Hill and the Northwest Metal Workers' Union which was breached by Bunker Hill for failure to take adequate safety precautions.

Although this Court sympathizes with the plaintiff and deplores the facially apparent indifference of Bunker Hill with regard to the safety of its employees, nevertheless, this Court is bound by the law as it exists and, accordingly, defendant Bunker Hill's motion for summary judgment must be GRANTED. Plaintiff's complaint as regards Bunker Hill is DISMISSED.

FACTS

In the early morning hours of October 4, 1971, plaintiff was called away from his normal duty as a zinc duster to relieve employees on their lunch break and to work on the job of cooling down zinc pots. The cooling job consisted of spraying water on molten zinc. Plaintiff wore cotton gloves, safety glasses and a light face shield, but nevertheless sustained serious injuries when the zinc in the pot unexpectedly exploded. Plaintiff has supplied this Court with records of numerous injuries occurring at the Bunker Hill Smelter, plus affidavits to the effect that exploding lead burns employees at the rate of once or twice a month. It appears that at the time of plaintiff's injury, he had received a short training course on cooling lead pots and was aware of previous lead splattering injuries.

I.

In 1971 the Idaho Legislature approved a comprehensive recodification of the existing Workmen's Compensation law, effective January 1, 1972. The statutes governing this case are those in force as of October 4, 1971. Citations appearing herein refer to the statutes as they appeared in the Idaho Code in 1971.

Since plaintiff has received and is still receiving Workmen's Compensation benefits, the threshold issue is whether or not plaintiff is precluded from bringing this action on the theory that plaintiff's injury was not an "accident", but rather amounted to an intentional tort.

The dual purpose of workmen's compensation laws was to provide an injured employee a remedy which was both expeditious and independent of proof of fault, and, secondly, to supply employers a liability which was limited and determinative. "Thus, anything that tends to erode the exclusiveness of either the liability or the recovery strikes at the very foundation of statutory schemes of this kind, now universally accepted and acknowledged." Stample v. Idaho Power Company, 92 Idaho 763, at p. 766, 450 P.2d 610, at p. 612 (1969). As stated in Section 102, Title 72, of the Idaho Code:

"Declaration of police power — The common law system governing the remedy of workmen against employers for injuries received in industrial and public work is inconsistent with modern industrial conditions. The administration of the common law system in such cases has produced the result that little of the cost to the employer has reached the injured workmen, and that little at large expense to the public. The remedy of the workman has been uncertain, slow and inadequate. Injuries in such employments formerly occasional have become frequent and inevitable. The welfare of the state depends upon its industries, and even more upon the welfare of its wageworkers. The state of Idaho, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for injured workmen and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as is otherwise provided in this act, and to that end all civil actions and civil causes of action for such personal injuries, and all jurisdiction of the courts of the state over such causes are hereby abolished, except as is in this act provided." (emphasis supplied)

Furthermore, it is provided in Idaho Code 72-203:

"Right to compensation exclusive. — The rights and remedies herein granted to an employee on account of a personal injury for which he is entitled to compensation under this act shall exclude all other rights and remedies of such employee, . . . at common law or otherwise, on account of such injury." (emphasis supplied) . . .

Case law in Idaho firmly establishes that workmen's compensation is the exclusive remedy provided an employee against his employer for injuries arising out of and in the course of employment. Industrial Indemnity Company v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, 471 P.2d 574 (1970); Adam v. Titan Equipment Supply Corp., 93 Idaho 644, 470 P.2d 409 (1970); Stample v. Idaho Power Company, 92 Idaho 763, 450 P.2d 610 (1969); Nichols v. Godfrey, 90 Idaho 345, 411 P.2d 763 (1966); Kirk v. United States, 124 F. Supp. 233 (D.C.Idaho S.D.1954) rev'd on other grounds, 232 F.2d 763 (9th Cir. 1956); White v. Ponozzo, 77 Idaho 276, 291 P.2d 843 (1955); Lockard v. St. Maries Lumber Co., 76 Idaho 506, 285 P.2d 473 (1955); Gifford v. Nottingham, 68 Idaho 330, 193 P.2d 831 (1948).

The legislature abolished every remedy for all injuries (negligent and non-negligent) received by a workman in the course of employment. Gifford v. Nottingham, supra. To offset the guaranteed remedy of an employee under workmen's compensation, the legislature abolished "all civil actions and civil causes of action for such personal injuries by employees against employers." (Emphasis supplied by the Idaho Supreme Court), Industrial Indemnity Company v. Columbia Basin Steel & Iron, Inc., 93 Idaho 719, at p. 721, 471 P.2d 574, at p. 576. Once the employer-employee relationship is shown to exist, then any common law suit against an employer for injuries sustained by an employee on the job is barred. Here there is no dispute as to the existence of the relationship. Adam v. Titan Equipment Supply Corp., supra. This Court has stated that under Idaho law the receipt of benefits constitutes the exclusive remedy as against employers, and that the exclusivity provision in the compensation statutes is decisive. Kirk v. United States, 124 F.Supp. 233 (D.C. Idaho S.D.1954), rev'd on other grounds, 232 F.2d 763 (9th Cir. 1956). In Kirk the Court of Appeals ruled that the United States was not an employer, but rather a third party and hence subject to suit at common law, but nevertheless it was the District Court's unreversed position that had the United States been the employer, payment of workmen's compensation benefits would have barred suit against them at common law. In that regard it was stated in Kirk v. United States, 124 F.Supp. 233, at p. 239 (D.C.Idaho S.D.1954):

"It follows that the payment of such benefits would be the exclusive remedy for such individual and consequently, this court holds that the payment of compensation benefits to plaintiffs is their exclusive remedy in the case at bar."

Against this backdrop of binding statutory and case authority, plaintiff is concluded, yet plaintiff's analysis is worthy of finer dissection.

Many of workmen's compensation acts contain provisions preserving the ordinary remedies at law for injuries to employees caused by employers' misconduct or willful acts. I.C., 72-209 (effective January 1, 1972);¹ compare Section 51.24.020, Revised Code of Washington Annotated; see also cases cited in 16 A.L. R. 620 (1922), 58 A.L.R. 1379 (1929), 68 A.L.R. 301 (1930). Although in 1971 Idaho did not specifically by statute permit suits against employers under the common law for intentional torts committed upon an employee, plaintiff argues that such a theory of recovery existed in Idaho under the case law, and by virtue of the definition of "accident" as defined in I.C., 72-201.

In Lockard v. St. Maries Lumber Co., supra, the Industrial Accident Board entered an award in favor of a minor injured while illegally employed in violation of the Child Labor Law, and the minor appealed, urging that Workmen's Compensation Law was not applicable. The Supreme...