Speck v. Union Electric Co.

741 S.W.2d 280, 1987 Mo. App. LEXIS 4915, 1987 WL 1613
CourtMissouri Court of Appeals
DecidedNovember 17, 1987
DocketNo. 50412
StatusPublished
Cited by10 cases

This text of 741 S.W.2d 280 (Speck v. Union Electric Co.) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Speck v. Union Electric Co., 741 S.W.2d 280, 1987 Mo. App. LEXIS 4915, 1987 WL 1613 (Mo. Ct. App. 1987).

Opinion

PER CURIAM:

Plaintiffs appeal from an order dismissing without prejudice Count III of their amended petition against defendant Union Electric Company. We reverse and remand.

Plaintiffs Thomas Speck and Linda Walters are the children of Stephen Speck, now deceased. Stephen Speck originally filed suit against various companies that had supplied Union Electric with asbestos insulation products. After their father’s death, plaintiffs filed a three-count amended petition against the original defendants and Union Electric, naming Union Electric as a defendant only in Count III. The first count reiterated claims against the insulation suppliers based on various products liability theories that Stephen Speck raised in his suit. Count I contained averments that those defendants had “sold, furnished and supplied” defective and unreasonably dangerous insulation products containing asbestos to Union Electric. It was further alleged that Stephen Speck was employed by Union Electric as a “helper in the steam department” from 1947 until March 1984, during which time he was exposed, through his employment, to asbestos from insulation covering pipes owned, operated, or maintained by Union Electric. Plaintiffs asserted that, as a direct result of this asbestos exposure, Stephen Speck contract[281]*281ed mesothelioma and “other related asbestos diseases afflicting his respiratory-cardiovascular system.”

In Count II plaintiffs Thomas Speck and Linda Walters incorporated Count I by reference and alleged that Stephen Speck died on December 25, 1984, as a direct result of the mesothelioma he contracted due to the tortious conduct mentioned in Count I. They alleged that they were the only children of Stephen Speck, who was unmarried at the time of his death, and the proper parties to bring a wrongful death action under § 537.080, RSMo 1978.

In Count III plaintiffs set forth a wrongful death claim against Union Electric and incorporated by reference the first two counts. Plaintiffs alleged in Count III:

Throughout the time of Stephen Speck’s employment with Union [Electric] Company during which he was exposed to asbestos-containing products and materials, and was required by Union Electric Company to work with such products and materials, the Union Electric Company did deliberately and intentionally fail to warn Stephen Speck about the dangers associated with asbestos, did deliberately and intentionally withhold information regarding the health of Stephen Speck, and did deliberately and intentionally order Stephen Speck to work with deleterious materials, to wit asbestos insulation, and thereby committed an assault and battery against Stephen Speck.

Plaintiffs also asserted that the alleged conduct of Union Electric was not an ordinary incident of Stephen Speck’s work and, therefore, The Missouri Workers’ Compensation Law, ch. 287, RSMo 1978, did not provide the exclusive remedy for their claim.

Union Electric filed a motion to dismiss Count III, asserting that plaintiffs’ claim was barred because the workers’ compensation statute provided their exclusive remedy. The court granted Union Electric’s motion and dismissed Count III without prejudice and designated its order final for purposes of appeal pursuant to Rule 81.06.

We initially transferred this case to the supreme court for determination of the ap-pealability of the order dismissing Count III. The supreme court held that the order of dismissal was appealable and remanded the case to us for resolution on the merits. Speck v. Union Electric Co., 731 S.W.2d 16 (Mo. banc 1987).

In plaintiffs’ sole point on appeal they allege:

The trial court erred in sustaining Union Electric’s motion to dismiss, because the petition alleges a deliberate and intentional wrongdoing by Union Electric in exposing Stephen Speck to asbestos without informing him of its risks and concealing his health status after his exposure to asbestos and this deliberate intentional withholding of information constitutes a non-accidental event for which the employer is not shielded by the exclusivity clause of the workers compensation law.

In dismissing Count III, the trial court apparently relied on § 287.120, RSMo 1978,1 and McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo.App.1982). In McCoy, the plaintiff contended that he contracted silicosis as a result of Liberty’s intentional acts and that the injury was intended by Liberty. Noting that the plaintiff attempted to state a claim “under a narrow exception to [the] exclusivity provisions [of The Missouri Workers’ Compensation Law], one that imposes common law tort liability on [282]*282an employer for intentionally inflicting injury on an employee[,]” we examined the scope of that exception and quoted extensively from 2A A. Larson, The Law of Workmen’s Compensation § 68 (1976) as follows:

Intentional injury inflicted by the employer in person on his employee may be made the subject of a common-law action for damages on the theory that, in such an action, the employer will not be heard to say that his intentional act was an “accidental” injury and so under the exclusive provisions of the compensation act. The same result may follow when the employer is a corporation and the assailant is, by virtue of control or ownership, in effect the alter ego of the corporation. * * *
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[Wjhat is being tested is ... the narrow issue of intentional versus accidental quality of the precise event producing injury. The intentional removal of a safety device or toleration of a dangerous condition may or may not set the stage for an accidental injury later. But in any normal use of the words, it cannot be said, if such an injury does happen, that this was the deliberate infliction of harm comparable to an intentional left jab to the chin.

McCoy, 635 S.W.2d at 62.

Relying principally on Larson, we held: “[F]or employer conduct to be actionable as a ‘nonaccidental’ cause of injury, the employer must intentionally act with the specific purpose of thereby injuring the employee.” Id. (emphasis added). We determined that the court did not err in dismissing plaintiffs petition and stated:

The petition does not directly allege or imply, nor can it reasonably be inferred, that Liberty did what it is alleged to have done throughout the fourteen years of plaintiff’s employment for the fiendish purpose of infecting plaintiff and eventually disabling him with silicosis. Plaintiff’s injury may have been a “natural and foreseeable consequence” of Liberty’s conduct, as alleged in Count One, and even a “strong probability,” as alleged in Count Two. But there is no allegation of that deliberate infliction of harm required under the principles explained by Larson, supra.

McCoy, 635 S.W.2d at 63. There are similarities between the case at bar and McCoy. Under the McCoy standard, plaintiffs have not stated a cause of action.

On appeal plaintiffs do not make a serious attempt to distinguish McCoy; rather, they attack the reasoning and soundness of that decision, contending that it conflicts with Harryman v. L & N Buick-Pontiac, Inc.,

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Bluebook (online)
741 S.W.2d 280, 1987 Mo. App. LEXIS 4915, 1987 WL 1613, Counsel Stack Legal Research, https://law.counselstack.com/opinion/speck-v-union-electric-co-moctapp-1987.