Zimmerman by Zimmerman v. Valdak Corp.

• Decision Date: 06 November 1997
• Docket Number: No. 970007,970007
• Parties: Joshua L. ZIMMERMAN by his natural parents and guardians, Thomas and Patricia ZIMMERMAN, Plaintiff and Appellant, v. VALDAK CORPORATION, a North Dakota corporation, Defendant and Appellee. Civil
• Court: North Dakota Supreme Court

Page 204

570 N.W.2d 204

1997 ND 203

Joshua L. ZIMMERMAN by his natural parents and guardians Thomas and Patricia ZIMMERMAN, Plaintiff and Appellant, v. VALDAK CORPORATION, a North Dakota corporation, Defendant and Appellee.

Civil No. 970007.

Supreme Court of North Dakota.

Nov. 6, 1997.

Rehearing Denied Dec. 2, 1997.

Richard Clapp and Jay Fiedler of Pearson, Christensen, Larivee, Clapp, Fiedler & Fischer, Grand Forks, for plaintiff and appellant.

John Moosbrugger of Moosbrugger, Dvorak & Carter, Grand Forks, for defendant and appellee.

Leo F.J. Wilking, Special Assistant Attorney General, Fargo, as amicus curiae.

MARING, Justice.

¶1 Joshua Zimmerman appeals from the district court's judgment dismissing his civil lawsuit against his employer, Valdak. We affirm.

¶2 On November 7, 1992, fifteen-year-old Joshua Zimmerman was injured while employed at Valley Dairy Car Wash in Grand Forks when his right arm was torn from his body. The injury occurred while Joshua was using an industrial centrifuge extractor, a laundry machine that uses centrifugal force to spin dry towels. Joshua was not assigned to work in the area where the machine was located and there was a clear warning on the machine to "keep your hands out of the machine."

¶3 Under normal conditions, a person operating the extractor would wait until the towels were dry, pull the brake to stop the internal drum, open the lid, and remove the towels. The extractor had an interlock system to prevent the lid from opening before the drum stopped spinning. When Joshua was injured, the interlock system had been inoperative for months. Employees were opening the lid and reaching in for the towels while the drum was still spinning.

¶4 Joshua sought compensation from the North Dakota Workers' Compensation Bureau. The Bureau accepted liability and paid associated medical expenses. The Bureau, however, denied disability and vocational rehabilitation benefits, finding he had not sustained a catastrophic injury under N.D.C.C. § 65-05.1-06.1(2)(c)(1) and that Joshua could earn wages equal to his pre-injury wages as a pizza delivery boy. Joshua did not appeal the Bureau's decision.

¶5 In 1995, Thomas and Patricia Zimmerman, on behalf of their son, Joshua, brought an action in district court against his employer, Valdak. Valdak moved for summary judgment, accompanied by the Bureau as amicus curiae. On May 15, 1995, in its memorandum opinion, the district court granted summary judgment to Valdak, based on the "exclusive remedy" provision of the North Dakota Workers' Compensation Act, which prohibits injured employees from suing their employer in a court of law. Joshua moved for reconsideration, but the court denied his motion.

¶6 Joshua appeals, arguing the exclusive remedy provision should not bar an injured employee from seeking compensation by an independent civil action when an injury is caused by an intentional tort.

¶7 The North Dakota's Workers' Compensation Act was created to provide sure and certain relief to employees. Section 65-01-01, N.D.C.C., explains:

[T]he prosperity of the state depends in a large measure upon the well-being of its wage workers, and, hence, for workers injured in hazardous employments, and for their families and dependents, sure and certain relief is hereby provided....

¶8 "The concept behind workers' compensation is that workers forego suing their employers when injured on the job, in exchange for an employer's agreement to cover those injuries, through payment of premiums to the Workers' Compensation Bureau." Susan J. Anderson & Gerald DeLoss, Are Employees Obtaining "Sure and Certain Relief" Under the 1995 Legislative Enactments of the North Dakota Workers' Compensation Act?, 72 N.D. L.Rev. 349, 349 (1996). "Under the Act, if an employer contributes premiums to the [Workers'] Compensation Fund to secure the payment of compensation to his employees, a [worker] injured in the course of his employment has no right of action against the contributing employer or any agent, servant, or other employee of such employer for damages for personal injuries." Schreder v. Cities Service Co., 336 N.W.2d 641, 642 (N.D.1983).

¶9 Four separate sections in the North Dakota Century Code state that workers' compensation is the exclusive remedy for injured employees. ¹ Valdak argues those sections explicitly bar any civil remedy. According to Valdak, the legislature has the authority to create an exception to the exclusive remedy provision, not the judiciary.

¶10 We, thus, are asked to decide whether the North Dakota Workers' Compensation Act bars a civil remedy against an employer for an intentional tort. If we find that it does not, we must determine what constitutes an intentional tort, and whether Joshua's claim was properly dismissed on summary judgment.

¶11 Most states do not bar common-law suits alleging intentional torts by employers, despite the exclusive remedy provisions in their Workers' Compensation Acts. Fisher v. Shenandoah Gen. Const. Co., 498 So.2d 882, 886 (Fla.1986); Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 889 (1986) (citing Petramalo, "Employer total liability," 1986 ABA National Institute on Workers' Compensation, p. 167). For example, courts in North Carolina, Ohio, Michigan, Minnesota, Montana, Indiana, Arkansas, Connecticut, and Vermont all acknowledge an exception to their workers' compensation exclusive remedy provisions for certain intentional torts. ² Although many of those state legislatures have since statutorily adopted intentional tort exceptions following their respective courts' action, it was the judiciary that determined the exclusive remedy provision did not include intentional torts committed by an employer. See, e.g., Travis v. Dreis and Krump Mfg. Co., 453 Mich. 149, 551 N.W.2d 132, 139 (1996) (discussing the intentional tort exception in Michigan after the legislature explicitly statutorily adopted a stricter version of the court-recognized exception).

¶12 The rationale behind adopting the intentional tort exception for a majority of these states was that workers' compensation laws were based on accidental injuries, not on intentional misconduct. See, e.g., Heskett v. Fisher Laundry & Cleaners Co., 217 Ark. 350, 230 S.W.2d 28, 30 (1950). Courts did not find it logical to include immunity for intentional torts under the penumbra of accidents:

Because the Legislature intended to limit and diffuse liability for accidental injury by no means suggests the Legislature intended to limit and diffuse liability for intentional torts. Accidents are an inevitable part of industrial production, intentional torts by employers are not.

Beauchamp v. Dow Chemical Co., 427 Mich. 1, 398 N.W.2d 882, 889 (1986).

¶13 The North Dakota Workers' Compensation Act specifically pertains to accidents in the workplace. Zimmerman's injury and the acceptance of Zimmerman's claim by the Bureau occurred in 1992, and, therefore, the provisions of the Workers' Compensation Act in effect in 1992 are applicable. Section 65-01-02(9)(1992) states a " '[c]ompensable injury' means an injury by accident arising out of and in the course of employment which must be established by medical evidence supported by objective medical findings." An intentional tort is not an accident. Beauchamp, 398 N.W.2d at 888.

¶14 Specifically excluded under our Act, are claims by employees for willfully self-inflicted injuries. Section 65-01-02(9)(b)(1), N.D.C.C. ³ , explains that a compensable injury does not include a willfully self-inflicted injury, or an injury caused by the employee's willful intention to injure or kill another. It seems incongruous to indemnify an employer from the consequences of his intentional tort, when an employee is not so indemnified.

¶15 Other strong public policy considerations support permitting an intentional tort cause of action. An underlying objective of workers' compensation is to promote a safe work environment. Affording employers immunity for intentional acts does not promote that objective. If intentional torts were covered by workers' compensation, it would allow "an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers." Collier v. Wagner Castings Co., 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198, 203 (1980). Employers would not be held individually responsible for their intentional actions. In effect, it would allow an employer to buy the right to hit an employee. Sitzman, 718 P.2d at 659. Furthermore, workers' compensation is founded on the principle of insurance. Providing immunity to employers for intentional torts is inconsistent with North Dakota insurance law that generally denies coverage for willful acts. N.D.C.C. § 26.1-32-04 (stating "[a]n insurer is not liable for a loss caused by the willful act of the insured ...").

¶16 Recognizing an intentional tort cause of action is compatible with some of our recent workers' compensation cases. In Schlenk v. Aerial Contractors, Inc., 268 N.W.2d 466, 471 (N.D.1978), we concluded that the language of the Workers' Compensation Act in effect in 1974 did not provide an exception for intentional injuries to an employee by his employer. We noted, however the definition of injury had been amended by the 1977 Legislature ⁴ and public policy may in the future require the finding of an exception in circumstances involving an actual intent to injure or "where the negligence is so gross as to be equivalent to an actual intent to injure." Id. In Schreder, 336 N.W.2d at 643, we determined it was clear the alleged injury was the result of an accident and not an intent to injure and we declined to decide whether a public-policy exception exists or to construe the Act as amended. We again left open the possibility of an intentional injury exception. We stated, "[w]e do not today decide if the [Workers'] Compensation Act itself or a public-policy exception to the prohibitions of the Act permits an...