Turner v. PCR, INC.

Decision Date02 March 2000
Docket NumberNo. SC94468.,SC94468.
Citation754 So.2d 683
PartiesDebra Ann TURNER, James Creighton and Lynn Creighton, Petitioners, v. PCR, INC., Respondent.
CourtFlorida Supreme Court

Karen B. Cohen of Green, Kahn & Piotrkowski, P.A., Miami, Florida, and Jack J. Fine of Fine, Farkash & Parlapiano, Gainesville, Florida, for Petitioners.

Michael D. Whalen of Martin, Ade, Birchfield & Mickler, P.A., Jacksonville, Florida, for Respondent.

ANSTEAD, J.

We have for review a decision ruling on the following question certified to be of great public importance:

IS AN EXPERT'S AFFIDAVIT, EXPRESSING THE OPINION THAT AN EMPLOYER EXHIBITED A DELIBERATE INTENT TO INJURE OR ENGAGED IN CONDUCT SUBSTANTIALLY CERTAIN TO RESULT IN INJURY OR DEATH TO AN EMPLOYEE, SUFFICIENT TO CONSTITUTE A FACTUAL DISPUTE, THUS PRECLUDING SUMMARY JUDGMENT ON THE ISSUE OF WORKERS' COMPENSATION IMMUNITY?

Turner v. PCR, Inc., 732 So.2d 342, 344 (Fla. 1st DCA 1998). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. Upon review, we conclude that in order to determine whether the experts' affidavits preclude the entry of a summary judgment, we must first decide what a claimant-employee must show when attempting to prove the commission of an intentional tort by an employer in order to avoid an otherwise valid workers' compensation defense. While we decline to address the certified question, we accept jurisdiction and quash the district court decision. In so doing, we recognize and reaffirm the existence of an intentional tort exception to an employer's immunity, and hold that the conduct of the employer must be evaluated under an objective standard.

PROCEEDINGS TO DATE

Debra Ann Turner, as the personal representative of the estate of Paul Turner, brought a wrongful death action against PCR, Inc., alleging that PCR caused the death of her husband Paul. This action was joined with a personal injury action brought by James and Lynn Creighton. PCR claimed immunity as an employer of Paul Turner and James Creighton, and alleged that Turner and the Creightons were only entitled to workers' compensation benefits. This case is before us based on the district court's approval of a summary judgment in favor of PCR, on its workers' compensation defense.

Upon review of the entry of a summary judgment, an appellate court must review the record and any supporting affidavits in the light most favorable to the non-moving party. See Emergency One, Inc. v. Keffer, 652 So.2d 1233, 1235 (Fla. 1st DCA 1995)

. Accordingly, we consider the record and supporting affidavits in this case viewed in the light most favorable to appellants.1

On November 22, 1991, an explosion at the PCR chemical plant in Alachua County killed Paul Turner and seriously injured James Creighton, both PCR technicians. At the time, PCR was under contract with DuPont to research and develop replacements for the coolant; Freon 113. A compound designated as F-pentene-2 was among the replacement compounds PCR was developing and was the compound involved in the explosion. F-pentene-2 is produced by combining tetrafluoroethylene (TFE) with hexafluoropropene (HFP), in the presence of aluminum chloride (a "promoter"), and heat from the resulting pressure.

TFE's explosive force is equal to two-thirds that of TNT, and the risk of an explosion by using TFE in the production of F-pentene-2 is very high. Appellants' experts, Dr. John Landrum and Mr. Jack Brand, opined that TFE is "highly reactive," "prone to spontaneous and violent decomposition when heated or compressed," and must be handled with extreme care involving special equipment and precautions. In fact, ICI, the company that manufactures TFE, notified PCR in April 1991, that it was planning to discontinue supplying TFE throughout the United States because of its hazardous character. PCR allegedly did not provide this information to its employees, including Turner and Creighton.

Prior to the November 22 incident, PCR made thirty-six runs of the F-pentene-2 process: three one-gallon runs, two five-gallon runs, twenty-five twenty-gallon runs and six 200-gallon runs. The explosion at issue in this case occurred during the seventh 200-gallon run. Appellants presented evidence of "at least three" other uncontrolled explosions at PCR in just under two years to support their claim that PCR knew of a high risk of injury or death on November 22. The first explosion, on October 27, 1988, involved a compound similar in structure and composition to TFE. The second explosion, on August 3, 1989, occurred when TFE was mixed with hydrofluorocarbons during another experiment for DuPont. The third explosion, on July 20, 1990, occurred when HFP reacted with aluminum chloride during PCR's first attempt to produce F-pentene-2. This third uncontrolled explosion reached a temperature of 962 C, and a pressure greater than 1300 psi, melting the internal metal parts of the reactor.

The November 22 explosion occurred upon the mixing of TFE, HFP and aluminum chloride in a 100-pound liquid fuel cylinder lacking any pressure relief device. The combination of the chemicals in this vessel resulted from the attempt to use crude F-pentene-2 as a solvent to slurry transfer the solid aluminum chloride into a 200-gallon reactor which was not equipped with a solid additions port as was present in the smaller reactors used in the earlier stages of the project. According to Landrum, the absence of a solid additions port made the reactor unsuited for use with a solid catalyst such as aluminum chloride, the same catalyst required for this synthesis. This method of introducing the solid aluminum chloride required that it be loaded into the 100-pound liquid petroleum cylinder, producing a suspension of aluminum chloride which could be transferred under pressure through a hose to the reactor by inverting the cylinder. Landrum opined that this process is fundamentally unsafe, posing risk of rupture of the cylinder due to application of excessive nitrogen gas.

Brand also opined that there was a substantial certainty that placing large quantities of these dangerous substances in a primitive propane tank rather than in a reactor designed with pressure release valves, external cooling capability, temperature monitoring capability, and other safety features to withstand a violent chemical reaction, and then manually inverting this tank rather than remotely activating it, would result in an explosion. Both Landrum and Brand concluded that apparently because of the intense pressure placed on PCR as a result of the fast-approaching phase-out date for the legal use and manufacture of Freon and the need for a substitute, PCR modified the proper protocol for the synthesis of F-pentene-2 to accommodate an existing reaction facility that was unsuited and unsafe for the purpose.

Despite these factual assertions, the trial court granted PCR's motion for summary judgment, finding that plaintiffs had failed to establish a factual basis for the claim that defendant intentionally injured them or engaged in acts which were substantially certain to cause them injury or death. Specifically, the trial court found that plaintiffs' affidavits amounted to conclusory allegations rather than evidence of facts. The First District affirmed, finding critical the fact that it was undisputed that no explosion had ever occurred at PCR involving the same combination of chemicals under the same conditions as the fatal explosion at issue in this case. See Turner v. PCR., Inc., 732 So.2d 342, 343 (Fla. 1st DCA 1998)

. The court found the experts' opinions insufficient to create a material issue of fact. See id. at 344. Notwithstanding, the court certified the above stated question as one of great public importance.

WORKER'S COMPENSATION

Florida's Worker's Compensation law is codified in chapter 440, Florida Statutes (1997). The statute is intended to provide a "quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer." § 440.015, Fla. Stat. (1997).2 To that end, "[t]he workers' compensation system ... is based on a mutual renunciation of common-law rights and defenses by employers and employees alike... [and] the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer." Id. Essentially, under this no-fault system, the employee gives up a right to a common-law action for negligence in exchange for strict liability and the rapid recovery of benefits. See United Parcel Service v. Welsh, 659 So.2d 1234, 1235 (Fla. 5th DCA 1995)

; 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation § 65.10 (Desk ed.1999). For employees within the statute's reach, workers' compensation is the exclusive remedy for "accidental injury or death arising out of work performed in the course and the scope of employment." § 440.09(1), Fla. Stat. (1997); see also § 440.11, Fla. Stat. (1997). While providing employees with benefits on a no-fault basis, the flip side of this scheme is its provision for immunity from common-law negligence suits for employers covered by the statute. At the same time, however, the statutory scheme itself explicitly recognizes the liability of co-employees to injured employees under certain limited conditions, including intentional or reckless actions. See § 440.11(1), Fla. Stat. (1997).

EXCEPTIONS TO IMMUNITY

Notwithstanding the general recognition of tort immunity for employers, this Court has recognized an intentional tort exception to the worker's compensation statutory scheme. See Eller v. Shova, 630 So.2d 537, 539 (Fla.1993)

(stating that "employers are provided with immunity from suit by their employees so long as the employer has not engaged in any intentional act designed to result in or that is substantially certain to result in injury or death to the employee") (citing Fisher v. Shenandoah...

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