On certification to the Superior Court, Appellate Division.
For affirmance in part; reversal in part and remandment -- Justices Clifford, Schreiber, Pollock, Jacobs and Sullivan. Concurring in part; dissenting in part -- Justices Handler and O'Hern. The opinion of the Court was delivered by Clifford, J. Handler, J., concurring in part and dissenting.
[101 NJ Page 165] The New Jersey Workers' Compensation Act, N.J.S.A. 34:15-1 to -128 (Compensation Act), contains an exclusive-remedy provision in N.J.S.A. 34:15-8. The issue in these consolidated cases is whether that provision precludes employees who have suffered occupational diseases from maintaining a separate tort action against their employer and against company physicians. The employees charge the employer and physicians with intentionally exposing the employees to asbestos in the workplace, deliberately concealing from employees the risks of exposure to asbestos, and fraudulently concealing specific medical information obtained during employee physical examinations that reveal diseases already contracted by workmen. We hold
that although the employees are limited to workers' compensation benefits for any initial occupational-disease disabilities related to the hazards of their employment experience, the Compensation Act does not bar plaintiffs' cause of action for aggravation of those illnesses resulting from defendants' fraudulent concealment of already-discovered disabilities.
Plaintiffs are former E.I. du Pont de Nemours (du Pont) employees and their spouses (reference to plaintiffs henceforth is to the employees). Defendants are du Pont and its company physicians who had worked at the du Pont plants at which plaintiffs-employees were stationed. Also named as defendants are certain manufacturers and suppliers of asbestos. Plaintiffs' claims against those defendants are unaffected by the disposition of this appeal; therefore, all subsequent references to defendants will include only du Pont and its company physicians.
Five separate complaints were filed by different sets of plaintiffs. But for the identities and descriptions of the plaintiffs, these complaints are identical in their basic allegations, and whatever differences there may be are irrelevant to our discussion.
Plaintiffs' brief before this Court summarizes their claims as follows:
The gravamen of the plaintiffs' claims [is] that du Pont and its doctors intentionally injured the plaintiffs by deliberately exposing them to asbestos and aggravated these injuries by conspiring to [conceal] and fraudulently concealing from the plaintiffs knowledge of diseases known by these defendants to have been caused by asbestos exposure and already contracted by the plaintiffs. Plaintiffs have suffered grievous and irreversible injuries both as a result of their initial exposure to asbestos and the failure of du Pont and its doctors to reveal diseases already contracted by the plaintiffs and known to the defendants.
Defendants filed a motion for summary judgment in the Millison case and moved in the four companion matters to dismiss plaintiffs' complaints for failure to state a claim upon
which relief could be granted. Defendants' argument in support of their motions was that plaintiffs' exclusive remedy was recovery under the Compensation Act. The trial court consolidated all claims for the purpose of disposing of the motions for dismissal. It originally denied the motions without prejudice and instructed plaintiffs to depose the defendants-physicians in order to create a more complete factual record. When defendants later renewed their motions to dismiss, the trial court granted summary judgment to du Pont but refused to dismiss the claims against the company doctors.
All parties sought interlocutory review in the Appellate Division, where their motions for leave to appeal were denied. Thereafter, we granted leave to appeal and summarily remanded the matter to the Appellate Division for consideration on the merits, 91 N.J. 181 (1982).
In an unreported opinion, the Appellate Division reversed the trial court's denial of the physicians' motion for summary judgment and affirmed the trial court's judgment in favor of du Pont. We granted plaintiffs' petition for certification, 94 N.J. 604 (1982), and now affirm in part and reverse in part.
Under Rule 4:46-2 the court shall grant summary judgment if a discriminating search of the merits in the pleadings, depositions, and admissions on file, together with the affidavits submitted on the motion, clearly shows that there is no genuine issue of material fact requiring disposition at a trial. Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 74 (1954); see Robbins v. Jersey City, 23 N.J. 229, 240-41 (1957). It is with this standard in mind that we examine plaintiffs' specific allegations.
Plaintiffs-employees are all past or present workers at defendant du Pont's Chamber Works or Repauno plants. Both plants are involved in the manufacture of chemicals; each contains an extensive amount of piping through its facilities.
As asbestos was often used for insulation purposes, the pipes in these plants were at one time surrounded by asbestos. It is therefore reasonably inferable that certain employees at the Chamber Works and Repauno plants were exposed to the asbestos insulation and inhaled asbestos fibers.
Defendants-physicians are Dr. W. E. Neeld, the medical director for the Chamber Works plant, and Drs. G. F. Reichwein and A. Smulkstys, former du Pont physicians at the Repauno plant. As medical director of Chamber Works, Dr. Neeld was required to supervise a medical staff of thirty-eight people responsible for meeting the health-care needs of the approximately 4,800 Chamber Works employees. The duties of Drs. Reichwein and Smulkstys, as plant physicians, included examining and treating plant employees, providing physical examinations, and being available for sick call and consultations.
The thrust of plaintiffs' allegations is that there was something akin to a conspiratorial agreement between du Pont and its medical staff that resulted in harm to plaintiffs. They assert generally that defendants, with knowledge of the adverse health consequences of asbestos use and exposure, and as part of a concerted plan for profit, deliberately exposed the plaintiffs to a dangerous work environment. Their claims focus on two separate situations, however.
The first count of the complaint avers that defendants knew or should have known of the dangers associated with asbestos exposure, that they therefore had a duty to inform plaintiffs and to protect them from those dangers, but that they nonetheless acted intentionally to conceal from plaintiffs all information regarding the health hazards of asbestos. In count two of their complaint, plaintiffs allege that du Pont and the company physicians fraudulently concealed from plaintiffs the fact that company medical examinations had revealed that certain plaintiffs-employees had contracted asbestos-related diseases. They assert that each year the du Pont doctors would give employees
complete physical examinations, including chest x-rays, pulmonary function tests, electrocardiograms, urine analyses, and blood tests.*fn1 Plaintiffs contend that the results of these physical exams indicated that plaintiffs-employees had contracted serious pulmonary and respiratory abnormalities associated with exposure to asbestos. They further maintain that rather than provide medical treatment for these ailing employees, defendants fraudulently concealed plaintiffs' asbestos-related diseases and sent them back into the workplace, where their initial infirmities were aggravated by additional exposure to asbestos. Plaintiffs claim that the time from defendants' first knowledge of the employee's condition to the time when the employee was told of the danger was as long as eight years.
It is undisputed that plaintiffs' injuries, if proven, are compensable under the Compensation Act. The controversy presented, however, calls for a determination of whether the legislature intended that the Compensation Act should serve as a worker's sole and exclusive remedy under circumstances such as those alleged. The pertinent statute, N.J.S.A. 34:15-8, declares that when, by express or implied agreement, the parties have accepted the provisions of the Compensation Act and the employee qualifies for benefits under the conditions of the Act, the employee shall ordinarily be barred from the pursuit of other remedies.*fn2 As the statute expressly indicates, however, an exception to the exclusivity provision is available when plaintiffs can prove an "intentional wrong."
Such agreement shall be a surrender by the parties thereto of their rights to any other method, form or amount of compensation or determination thereof
than as provided in this article and an acceptance of all the provisions of this article, and shall bind the employee and for compensation for the employee's death shall bind the employee's personal representatives, surviving spouse and next of kin, as well as the employer, and those conducting the employer's business during bankruptcy or insolvency.
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.
[ N.J.S.A. 34:15-8 (emphasis added).]
Plaintiffs argue that their charges that defendants knowingly and deliberately exposed employees to a hazardous work environment and fraudulently concealed existing occupational diseases are sufficient to fall within the Act's limited "intentional wrong" exception and to take their injuries outside the intended scope of the Compensation Act. However, as noted by the Appellate Division in granting defendants' motions to dismiss, in order to satisfy the Compensation Act's definition of "intentional wrong," claimants have heretofore been required to show a deliberate intention to injure. See, e.g., Bryan v. Jeffers, 103 N.J. Super. 522, 523-24 (App.Div.1968) certif. den., 53 N.J. 581 (1969) (intentional wrong in compensation statute means "deliberate intention" and is not equatable with gross negligence or similar concepts importing constructive intent); Arcell v. Ashland Chem. Co., 152 N.J. Super. 471, 495-96 (Law Div.1977) (allegations of willfully and wantonly failing to undertake known safety and health procedures for protection of employees, and negotiating with governmental bodies so that contemplated implementation of such procedures would be ignored or delayed, are insufficient to satisfy intentional-wrong standard); Copeland v. Johns-Manville Prods. Corp., 492 F. Supp. 498 (D.N.J.1980) (Bryan requires that "intentional wrong" exception be given a narrow construction; allegations that employer, aware of dangerous working conditions, maliciously and willfully exposed workers to hazardous asbestos products and intentionally withheld information concerning the health risks do not meet the standard for intentional wrong); Petruska v. Johns-Manville, 83 F.R.D. 39 (E.D.Pa.1979) (claims of intentionally allowing defendant
to be exposed to asbestos and failing to warn of known health hazards of asbestos do not meet New Jersey Workers' Compensation Act's strict definition of intentional wrong, which requires deliberate intention to injure). This requirement of proving actual intent to injure in order to avoid the exclusivity of a workers' compensation act is the subject of comment by Professor Larson in his multi-volume treatise on Workers' Compensation Law:
Even if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, willfully failing to furnish a safe place to work, or even willfully and unlawfully violating a safety statute, this still falls short of the kind of actual intention to injure that robs the injury of accidental character.
If these decisions seem rather strict, one must remind oneself that what is being tested here is not the degree of gravity or depravity of the employer's conduct, but rather 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 deliberate infliction of harm comparable to an intentional left jab to the chin.
[2A A. Larson, The Law of Workmen's Compensation, § 68.13 at 13-22 to 13-27 (1983) (footnotes omitted).]
The approach explicated by Professor Larson emphasizes the narrow or limited character of the exception. See Copeland v. Johns-Manville Prods. Corp., supra, 492 F. Supp. at 501; see also Service Armament v. Hyland, 70 N.J. 550, 558-59 (1976) (stating general principle that exceptions in a legislative enactment are to be strictly but reasonably construed, consistent with the manifest reason and purpose of the law). The approach of construing and applying the exception in the most limited fashion consistent with the purpose of the law is followed by the vast majority of jurisdictions that have considered whether allegedly egregious employer conduct warrants the recognition of a separate cause of action outside the compensation system. See, e.g., Burke v. Interlake, Inc., 600 F. Supp. 59 (D.Conn.1984) (allegations of willful, wanton, and intentional [101 NJ Page 172] failure to warn of dangers in conveyor system, failure to install adequate safety equipment, and failure to comply with state and federal safety laws -- workers' compensation is exclusive remedy); Shearer v. Homestake Mining Co., 557 F. Supp. 549 (D.S.D.1983), aff'd, 727 F.2d 707 (8th Cir.1984) (allegations of creating and maintaining an unsafe workplace, deliberately violating government safety standards, or personal animosity of a supervisor were insufficient to state a cause of action under the "intentional tort" exception to compensation exclusivity); Prescott v. United States, 523 F. Supp. 918 (D.Nev.1981), aff'd, 731 F.2d 1388 (9th Cir.1984) (willful intent to send employee into test areas immediately after nuclear detonations to perform his job is not the same as intent to make workers sick; Nevada law would require exclusive remedy in state Occupational Disease Act); Houston v. Bechtel Assocs., Professional Corp., 522 F. Supp. 1094 (D.D.C.1981) (Longshoremen's and Harbor Workers' Compensation Act is exclusive remedy of employees suffering from silicosis who allege employer willfully exposed them to unreasonably high levels of silica dust in violation of safety regulations); Tysenn v. Johns-Manville Corp., 517 F. Supp. 1290 (E.D.Pa.1981) (knowingly and deliberately exposing employees to dangers of asbestos compensable exclusively in Occupational Disease Act); Phifer v. Union Carbide Corp., 492 F. Supp. 483 (E.D.Ark.1980) (exclusive remedy of plant chemist injured by exposure to harmful chemicals was workers' compensation regardless of employer's intentional failure to warn of known hazards, failure to provide protective gear, and failure to provide adequate ventilation in the workplace); Kofron v. Amoco Chems. Corp., 441 A.2d 226 (Del.1982) (no separate cause of action allowed when employer knew of dangers of asbestos, yet deceived plaintiffs by asserting that it was safe to work in close proximity to asbestos materials); Blade v. Anaconda Aluminum Co., Inc., 452 N.E. 2d 1036 (Ind.Ct.App.1983) (even assuming employer intentionally pursued a course of conduct that jeopardized workers' safety, nevertheless the conduct can be characterized at most as grossly
negligent or wanton; exclusive remedy is workers' compensation). But see Boudeloche v. Grow Chem. Coatings Corp., 728 F.2d 759 (5th Cir.1984) (pleading alleging that supervisor ordered employee to continue painting interior of tank despite fact that toxic fumes had caused employee to become dizzy and to vomit blood was sufficient to state claim under "intentional act" exception to exclusivity of compensation act); Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 608, 433 N.E. 2d 572, cert. denied, 459 U.S. 857, 103 S. Ct. 127, 74 L. Ed. 2d 110 (1982) (intentional torts of employer are not immunized by compensation act; allegations of employer willfully disregarding known health hazards of noxious chemicals in the workplace were sufficient to withstand motion to dismiss under "intentional tort" exception to exclusivity of workers' compensation act). See generally 2A A. Larson, supra, at § 68.13 (collecting cases); Annot., 96 A.L.R. 3d 1064 (1980) (same). That the foregoing authorities do not, as the dissent so forcefully points out, post at 191-193, enjoy a rigid consistency in their various treatments of the "intentional wrong" test is clear; what is equally clear is that although different jurisdictions may craft different formulations, whatever formulation is used represents a conscious effort to impose severe restrictions on the exception, bringing it as close to "subjective desire to injure" as the nuances of language will permit, while at the same time recognizing the problems of proof inherent in any attempt to demonstrate subjective intent.
In determining whether these plaintiffs have stated a cause of action under the "intentional wrong" exception to the exclusive-remedy provision of the Compensation Act we must be faithful to the legislative goals of the workers' compensation system. To the end that the system and those goals may be fully understood, we pause to focus on the development of the Compensation Act and the underlying premises that support it.
The stimulus for workers' compensation legislation arose out of an increasing number of industrial accidents and the inadequacies of the common-law tort remedies that were available to aid injured workers. 1 A. Larson, supra, § 4.00 at 23. Injured employees seeking tort recovery were confronted with the difficult task of persuading nonunion coworker-witnesses to testify against the employer. Even if successful at gathering witnesses, plaintiffs-employees were inevitably confronted with the "unholy trinity" of employer defenses -- contributory negligence, assumption of risk, and the fellow servant rule -- which served to protect the employer from legal liability even though he had failed in his duty as master to protect his servants. W. Prosser and W. Keeton, The Law of Torts, § 80 at 569 (5th ed.1984). Thus, various authorities have estimated that at common law up to 94% of industrial accidents went uncompensated. Id. at 572 n. 43.
In 1911, in response to these common-law inequities, the legislature passed our Workers' Compensation Act. L. 1911, c. 95. This legislation involved a historic trade-off whereby employees relinquished their right to pursue common-law remedies in exchange for automatic entitlement to certain, but reduced, benefits whenever they suffered injuries by accident arising out of and in the course of employment. Thus the quid pro quo anticipated by the Act was that employees would receive assurance of relatively swift and certain compensation payments, but would relinquish their rights to pursue a potentially larger recovery in a common-law action.
However, claimants suffering from work-related occupational diseases were initially unsuccessful in their efforts to recover compensation under the Act because it could not be proved that they had been injured by "accident" -- the operative term permitting recovery under the statute. See Hichens v. Magnus Metal Co., 35 N.J.L.J. 327 (1912), in which a factory employee suffering from copper poisoning caused by inhaling copper dust was denied compensation under the 1911 Act. Thereafter, the legislature, apparently recognizing that workers who had contracted
diseases due to gradual exposure to certain potentially-hazardous working conditions were no less in need of the Compensation Act's protection than were employees injured by "accident," amended the Act to include occupational diseases within its coverage. L. 1924, c. 124.
Initially, only nine named occupational diseases were compensable under the terms of the Act: anthrax, lead poisoning, mercury poisoning, arsenic poisoning, phosphorus poisoning, poisoning from all homologues and derivatives of benzine, wood alcohol poisoning, chrome poisoning, and caisson disease. The right to compensation was conditioned on the employee notifying the employer of his disability due to occupational disease within five months of his last exposure to the harmful substances. In order to make additional occupational diseases compensable, the legislature passed various amendments over the years: L. 1926, c. 31 (mesothorium or radium necrosis); L. 1931, c. 33 (radium poisoning); L. 1945, c. 53 (dermatitis venenata).
Moreover, a totally separate system of elective compensation was enacted for the diseases of asbestosis and silicosis. L. 1944, c. 88, codified at N.J.S.A. 34:15-35.1 to -35.9. Compensation was to be awarded for death or total disability resulting from silicosis or asbestosis when "the disease was due to the nature of" the employment, id. at § 3, 34:15-35.3, and the Act specifically indicated that there shall be no liability in tort for damages on account of death or total disability from silicosis or asbestosis. Id. at § 5, 34:15-35.5. This separate system of compensation was repealed at L. 1951, c. 59, and asbestosis and silicosis were implicitly returned to the general occupational-disease coverage, which had since replaced its limited list of specific-named occupational diseases with a definitional phrase, "compensable occupational disease." L. 1949, c. 29. The current definition of "compensable occupational disease" is codified at N.J.S.A. 34:15-31.
The point to be emphasized is that the express inclusion of occupational diseases as part of the Compensation Act reflects
a general awareness of potentially-hazardous conditions in the workplace that may result in debilitating diseases necessitating compensation. Early versions of the Compensation Act relating to occupational diseases indicate that certain defined workplace diseases, i.e., asbestosis, are known to be an enemy of the workman, and that relief is to be awarded under the Act to employees stricken with these illnesses. In addition, the current statutory approach of providing only a general compensable occupational-disease definition rather than listing the specific compensable illnesses suggests either that the occupational-disease risks of the workplace are too numerous to list separately or that in the future employees may contract occupational diseases, as yet unknown, that should nonetheless be compensated under the terms of the Act (if such illnesses can be proven and their causes can be traced to conditions of employment). Suffice it to say that in revamping the Compensation Act over the years, the legislature has not been blind to the fact that each year an unspecified number of workers will be disabled with diseases contracted as a result of the hazards of the workplace.
Mindful of the origins of the Compensation Act and its subsequent development, we turn to the precise legal issue posed by this appeal: what categories of employer conduct will be sufficiently flagrant so as to constitute an "intentional wrong," thereby entitling a plaintiff to avoid the "exclusivity" bar of N.J.S.A. 34:15-8? Plaintiffs contend that du Pont and the doctors, in exposing the employees to asbestos and concealing medical information, acted knowingly and deliberately, not accidentally or negligently, so that defendants' conduct must be considered an "intentional wrong" within the meaning of the statute. Defendants, relying on the bulk of the authority on this topic, ...