Kofron v. Amoco Chemicals Corp.

441 A.2d 226

• Court: Supreme Court of Delaware
• Decided: January 6, 1982
• Status: Published

Opinions

McNEILLY, Justice:

We here consider two appeals from decisions of the Superior Court which require us to determine the scope of coverage of the Delaware Workmen’s Compensation Law. In both cases plaintiffs instituted common law causes of action based, respectively, on claims of gross negligence and intentional tort against defendants, their former or present employers, and a number of other corporations, engaged in the manufacturing of asbestos. In this opinion, however, we are concerned only with the allegations made against Amoco and duPont. The Superior Court granted defendants’ motions to dismiss the claims pursuant to Superior Court Civil Rule 12(b)(6) for failure to state claims upon which relief could be granted. Plaintiffs appeal from these dismissals.

Because of the preliminary stage at which dismissal occurred in these cases, the only factual records before this Court are the complaints¹ filed by plaintiffs. In judging the merits of a motion to dismiss for failure to state a claim, all well-pleaded facts in the complaint are assumed to be true, Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372 A.2d 168 (1976), and, as the Trial Court noted, a complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Diamond State Tel. Co. v. University of Delaware, Del.Supr., 269 A.2d 52 (1970). Thus, the “facts” set out below are merely the allegations found in the respective complaints and the reasonable inferences which may be drawn therefrom.

Certain basic factual similarities shared by these two cases should be highlighted before proceeding to a consideration of the particular allegations found in the two complaints. Plaintiffs are or were industrial workers who contracted certain diseases while in the employ of the defendants, chemical manufacturers with industrial plants in Delaware. The plaintiffs in Ko-fron worked at defendant Amoco Chemical Company’s (Amoco) plant in New Castle. The plaintiffs in Nutt worked at defendant E.I. duPont deNemours & Company’s (du-Pont) plant in Newport. The alleged origin of the diseases contracted by plaintiffs is overexposure to excessive levels of asbestos found in the working environments at these two plants.

The particular facts alleged in Kofron are as follows. Plaintiffs are or were at all pertinent times employed by Amoco at the New Castle plant and, over a lengthy period of time, were exposed to asbestos fibers in extremely dangerous concentrations. As a direct result of such exposure, plaintiffs now suffer from various stages of asbestosis, lung cancer and/or other pulmonary diseases. At all material times, Amoco, its predecessor in title, and its parent corporations were aware of the dangerous conditions at the New Castle plant and were in a position to rectify the problems, but failed to correct the dangers and failed to warn plaintiffs of the dangers to their health from the excessive levels of asbestos at the plant. Plaintiffs allege that these acts and omissions constitute negligence and gross negligence by Amoco and proximately caused plaintiffs’ diseases. • Moreover, plaintiffs aver that as employees they were within the class of persons to whom Amoco owed a duty to warn of the known asbestos-related dangers.

Several specific acts or omissions by Amoco are also alleged in the complaint. Plaintiffs claim that at all material times Amoco knew of the high levels of asbestos fibers and dust at the plant. Further, plaintiffs allege that Amoco possessed medical and scientific data and other information which clearly indicated that asbestos and asbestos products were hazardous to plaintiffs’ health and safety, given plaintiffs’ excessive exposure to such materials during the course of their work. Despite such knowledge, Amoco and other defendants purportedly engaged in a course of conduct (characterized as a conspiracy) intended to deceive plaintiffs and others similarly situated to their injury and to the advantage of defendants. In this regard, plaintiffs aver that Amoco:

(1) asserted to plaintiffs that it was safe for plaintiffs to work in close proximity to the asbestos materials, knowing this to be untrue;

(2) suppressed the information concerning the dangers of asbestos exposure, causing plaintiffs to be and remain ignorant thereof;

(3) failed to warn plaintiffs about the nature of the asbestos materials and the danger which such materials posed to them;

(4) failed to provide plaintiffs with adequate protective masks and devices and reasonably safe working conditions;

(5) failed to provide sufficient information concerning the asbestos dangers to physicians retained by Amoco to do periodic examinations of plaintiffs, and failed to inform such physicians of the true nature of its efforts to control asbestos dust levels at the plant;

(6) failed to operate the plant in accordance with state and federal regulations concerning dust levels and safe working conditions; and

(7) failed to file reports with the Industrial Accident Board, required by law, indicating that plaintiffs had contracted com-pensable occupational diseases from their exposure to asbestos materials when such facts became known to Amoco.

Plaintiffs also claim that physicians, whom Amoco retained to perform periodic physical examinations of employees, discovered the asbestos-related medical problems in plaintiffs but failed to so inform them and advise them of the relationship between their diseases and the work environment at a time when the physicians and Amoco knew that plaintiffs were unaware of these facts. Plaintiffs contend that all the aforementioned acts or omissions were done falsely, fraudulently, wilfully and deliberately to deceive plaintiffs and that, had plaintiffs known the true facts, they would not have continued to work in the asbestos environment.

The facts alleged in the Nutt complaint are substantially similar to those in Kofron, with one main difference: whereas the primary tort characterization of Amoco’s conduct in Kofron is negligence and gross negligence, plaintiffs in Nutt characterize du-Pont’s conduct as constituting an intentional tort. In any event, the same basic allegations are found in Nutt. Thus, plaintiffs allege that at all pertinent times they are or were employed by duPont at the Newport plant, were there exposed to dangerous concentrations of asbestos over long periods of time, and, as a direct result of such exposure, have contracted incipient cancer and various pulmonary diseases. Plaintiffs claim that duPont knew of the asbestos-related conditions at the plant, knew that these conditions posed a significant danger to plaintiffs and others similarly situated, and failed to take any measures to alleviate the dangers and to protect the health and safety of plaintiffs. In particular, plaintiffs allege that defendants, including du-Pont, possessed medical and scientific data and other information which clearly indicated that asbestos and asbestos products were hazardous to plaintiffs’ health and safety, given plaintiffs’ excessive exposure thereto during the course of their work. Despite such knowledge, duPont and others purportedly engaged in a course of conduct (also characterized as a conspiracy) intended to deceive plaintiffs and others similarly situated to their injury and to the advantage of defendants. In furtherance of this design, plaintiffs allege that duPont:

(1)positively asserted to plaintiffs that it was safe for plaintiffs to work in close proximity to the asbestos materials, knowing this to be untrue;

(2) suppressed information concerning the dangers of asbestos exposure, causing plaintiffs to be and remain ignorant thereof;

(3) failed to warn plaintiffs about the nature of the asbestos materials and the dangers which such materials posed to them;

(4) failed to provide plaintiffs with adequate protective masks and devices and reasonably safe working conditions;

(5) failed to provide sufficient information concerning the asbestos dangers to physicians retained by duPont to do periodic examinations of plaintiffs, and failed to inform the physicians of the true nature of its dust control program at the plant;

(6) failed to operate the plant in accordance with state and federal regulations concerning dust levels and safe working conditions; and

(7) failed to file reports with the Industrial Accident Board, required by law, indicating that plaintiffs had contracted com-pensable occupational diseases from their exposure to asbestos materials when such facts became known to duPont.

Lastly, plaintiffs allege, as did the plaintiffs in Kofron, that all the foregoing acts and omissions. were done falsely, fraudulently, wilfully and deliberately to deceive plaintiffs, and that, had plaintiffs known the true facts, they would not have continued to work in the asbestos environment. It is not contended, however, that duPont created or maintained the condition for the purpose of causing injury to its employees generally or to these specific plaintiffs.

In support of their motions to dismiss, Amoco and duPont argued that plaintiffs’ actions are barred by the exclusivity provision of the Delaware Workmen’s Compensation Law. The Superior Court agreed that the allegations in each case were insufficient to take plaintiffs’ claims outside the coverage of the Workmen’s Compensation Law. In Kofron the Superior Court ruled that an employee action based primarily on alleged gross negligence by the employer cannot be maintained. The Court also held that the alleged acts by Amoco, which formed the basis for the fraud, deceit and conspiracy claims, preceded and helped to produce plaintiffs’ injuries and were, therefore, merged into the injuries and not separately actionable. In Nutt the Superior Court ruled that an employee action based on the employer’s alleged intentional tor-tious acts cannot be maintained unless it is further alleged that the employer acted with the subjective purpose of injuring its employees. The complaint was found to be insufficient because duPont was not alleged to have acted with the subjective purpose of injuring plaintiffs. The Superior Court further held that the fraud, deceit, and conspiracy claims merged into plaintiffs’ injuries and were thus barred by the exclusivity provision of the Delaware Workmen’s Compensation Law.

The question of whether the complaints in these cases state viable causes of action upon which relief may be granted is one of legislative intent and turns on the construction to be given to the Workmen’s Compensation Law’s exclusivity provision, 19 Del.C. § 2304 and its legislative history.² Section 2304 provides:

Every employer and employee, adult and minor, except as expressly excluded in this chapter, shall be bound by this chapter respectively to pay and to accept compensation for personal injury or death by accident arising out of and in the course of employment, regardless of the question of negligence and to the exclusion of all other rights and remedies.

When this Court is faced with a novel question of statutory construction, as here, we “must seek to ascertain and give effect to the intention of the Legislature as expressed in the Statute itself.” Keys v. State, Del.Supr., 337 A.2d 18, 22 (1975); Campbell v. Cochran, Del.Super., 416 A.2d 211, 223 (1980). In performing this analysis, we give the statutory words their commonly understood meanings. Moore v. Chrysler Corporation, Del.Supr., 233 A.2d 53 (1967).

There can be no doubt that § 2304 includes within its coverage the kind of injuries suffered by plaintiffs. Although § 2304 refers specifically to “personal injuries” caused by accident, a review of the legislative history of the Delaware Workmen’s Compensation Law and pertinent provisions thereof reveals that § 2304 encompasses not only injuries caused by accident, but also all compensable occupational diseases. Prior to 1937, only those injuries which naturally resulted from accidental physical violence to a bodily structure were covered under the statute. 29 Del.Laws, ch. 233 (1917) Revised Code of Delaware 1935, ¶ 6114 § 44. However, in 1937 the Legislature amended the statute to include coverage for specifically listed “compensable occupational diseases ... arising out of and in the course of the employment.” 41 Del. Laws, ch. 241 (1937). In 1949 the Legislature again amended the statute by eliminating the list of compensable occupational diseases and extending coverage under the statute to “a11 occupational diseases arising out of and in the course of employment .... 47 Del.Laws, ch. 270 (1949). On the strength of this statutory history, we have not previously distinguished between accidental work-related injuries and occupational diseases in awarding benefits under the statute. See Chicago Bridge and Iron Co. v. Walker, Del.Supr., 372 A.2d 185 (1977); Alloy Surfaces Co. v. Cicamore, Del.Supr., 221 A.2d 480 (1966); Air Mod Corp. v. Newton, Del.Supr., 215 A.2d 434 (1965). Indeed, to reflect this fact, we rephrased § 2304 to read that “[ejvery employer and employee ... shall be bound ... to pay and to accept compensation for all occupational disease ... only when the exposure . . . has occurred during the employment . . . . ” Cicamore, supra, at 486. Moreover, the term “personal injury,” as used in § 2304, expressly includes “compensable occupational diseases”, 19 Del.C. § 2301(11), •which are defined as “all occupational diseases arising out of and in the course of employment only when the exposure stated in connection therewith has occurred during employment.” 19 Del.C. § 2301(4). Under § 2328 of the statute, compensation for a disability resulting from an occupational disease is payable in the same amount and manner had the disability been caused by accident. 19 Del.C. § 2328.

As we have noted previously, the twin purposes of the Delaware Workmen’s Compensation Law are to provide a scheme for assured compensation for work-related injuries without regard to fault and to relieve employers and employees of the expenses and uncertainties of civil litigation. Hill v. Moskin Stores, Inc., Del.Supr., 165 A.2d 447 (1960); See 1 Larson, Workmen’s Compensation Law, § 2.20, at 5-7. These objectives have been embodied in the amendments to the statute, discussed above, and are firmly ensconced in § 2304. Thus, our analysis of the legislative history of § 2304 and related existing provisions of the present statute evidences a legislative intent in occupational disease cases to make Workmen’s Compensation an exclusive remedy and to bar common law claims.

The language of § 2304, when read in the context of plaintiffs’ respective claims predicated on gross negligence in Kofron and intentional tort in Nutt leads to the same conclusion. Section 2304, in conjunction with §§ 2301(4) & (11), plainly states that claims based on compensable occupational diseases are covered by the Workmen’s Compensation Law” regardless of the question of negligence .... ” While in some contexts the Legislature has chosen to distinguish between various degrees of negligence for the purpose of imposing liability on an actor, see, e.g., the Automobile Guest Statute, 21 Del.C. § 6101, and the Premises Guest Statute, 25 Del.C. § 1501, it has declined to attempt such a degree classification in § 2304 of the Workmen’s Compensation Law. Cf. Gallegher v. Davis, Del.Super., 183 A. 620, 625 (1936). Thus, the plain language of § 2304 compels the conclusion that all employee actions against employers for work-related injuries based on any degree of negligence, from slight to gross, are within the exclusive coverage of the Workmen’s Compensation Law and may not be maintained under the common law.

The same result is obtained with respect to plaintiffs’ “intentional tort” claim. Section 2304 explicitly provides that recovery under the statute is “to the exclusion of all other rights and remedies.” Giving this language its commonly accepted meaning, Moore, supra, we hold that § 2304 precludes recovery under the common law grounds asserted by plaintiffs. While legislatures in other states have specifically allowed employees to proceed with a common law cause of action based on the theory that their employers maintained a dangerous working environment with the intent to injure them, see 2A Larson, supra, § 69.10, at 13-41 & 70.10, at 13-56 (1976),³ our Legislature has not done so and we decline to act in its stead. In view of the magnitude of the asbestosis problem and the proliferation of workers’ claims in this area, we believe that any changes in the Delaware Workmen’s Compensation Law must come from the Legislature, whence it came and which, because of increasing informational input from both employer and employee lobbies, is perhaps best equipped to grapple with this issue. Kittell v. Vermont Weatherboard, Inc., 417 A.2d 926, 927 (1980); Provo v. Bunker Hill Co., 393 F.Supp. 778, 787-88 (D. Idaho 1975). Given our construction of § 2304, the decisions of the Superior Court, dismissing plaintiffs’ complaints for failure to state causes of action upon which relief can be granted, are hereby

AFFIRMED.

1 . In both cases the defense motions were directed to the respective plaintiffs’ third amended complaint. Therefore, we focus, as did the Court below, on the allegations found therein.

2 . For the legislative history of and statutory provisions related to 19 Del.C. § 2304, see the Appendix following this opinion.

3 . Even if plaintiffs were operating under one of these statutes and sought to bring a common law action based on an intentional tort theory, plaintiffs’ claim would require dismissal there because, under the weight of authority, their allegations are insufficient to state a common law claim of intentional tort and, therefore, fit within the provisions of the statute. See Great Western Sugar Co. v. District Ct. of Mont., Mont.Supr., 610 P.2d 717 (1980); 2A Larson, supra, § 68.13, at 8-9.