The opinion of the court was delivered by: Irenas, Senior District Judge
Presently before the Court is Defendant Terminix International Company, LP's (hereinafter "Terminix")*fn1 Partial Motion pursuant to Fed. R. Civ. P. 12(b)(6) to Dismiss Counts I, III, and IV of Plaintiff Michael Steigerwalt's Complaint for injuries sustained as an employee of Terminix.*fn2 Additionally, Terminix moves to stay this litigation and compel arbitration pursuant to the parties' agreement.
For the reasons set forth below, Terminix's Partial Motion to Dismiss Counts I and III will be granted to the extent that they allege conduct subject to the tort bar in N.J.S.A. § 34:15-8 of the Workers' Compensation Act, but will be denied to the extent that those counts allege an intentional wrong as defined by the Supreme Court of New Jersey in the cases discussed, infra, in Part III A. of this Opinion. To the extent that Counts I, II, and III allege an intentional wrong they will be deemed a single Count. The motion to dismiss Count IV will be denied. The Motion to Stay this litigation with respect to the intentional tort claims and to order arbitration will be denied.
Plaintiff, Michael Steigerwalt, was an employee of Defendant Terminix, an insect control and fumigation company. When Terminix hired Steigerwalt, the parties entered into an arbitration agreement as a part of Steigerwalt's employment contract. (Sullivan Cert. Ex. B).*fn3
On May 13, 2004, Terminix directed Steigerwalt to perform a fumigation job at Lyons and Sons in Pennsauken, New Jersey. (Compl. at ¶14). At the direction of a supervisor, Steigerwalt and his co-workers placed tarps over cocoa beans and then gassed the tarps with methyl bromide, an extremely toxic, anti-fungal bug exterminator with extreme inhalation hazards. (Id. at ¶15). Steigerwalt and his co-workers were not provided with respirators, self-contained breathing apparatus (SCBAs), or other equipment to prevent injuries that may result from exposure to methyl bromide. (Id. at ¶16). Throughout the course of the fumigation job, Steigerwalt inhaled methyl bromide which allegedly resulted in serious personal injuries, including methyl bromide toxicity, two weeks in a coma, brain injuries, severe neurocognitive defects, neurological injuries, and injuries to his nerves and nervous system. (Id. at ¶17).
The Occupational Safety and Health Administration ("OSHA") investigated the incident and cited Terminix for two willful violations of health standards, four serious violations of health standards, and three other-than serious violations. Defendants were required to pay a penalty of $119,250.00. (Id. at ¶25).
Steigerwalt alleges that prior to the May 13, 2004 incident, Terminix had actual or constructive knowledge of the health risks associated with methyl bromide exposure. (Id. at ¶18). Steigerwalt also alleges that Defendants' general manager, Tony Simone, requested "air pacs" for those employees who would be working with methyl bromide. (Id. at ¶23). Simone's request was denied, according to Steigerwalt, because Defendants' vice president of sales and service said, "$136.00 per month for five years was too much to spend." (Id. at ¶23). Additionally, Steigerwalt contends that Defendants did not perform safety audits to ensure protection from the hazards of methyl bromide exposure. (Id. at ¶22).
According to the Complaint, one of Defendants' general managers, in reference to the employees' exposure on May 13, 2004, stated, "there was no good reason why they [the exposed employees] did not wear respirators, it was an oversight, I should have ensured that training was done" and "I think we all disregarded safety, I was busy doing other stuff such as administrative and corporate stuff." (Id. at ¶21).
On March 20, 2006, Steigerwalt filed suit against Defendants in the Superior Court of Camden County, New Jersey, alleging intentional misconduct, negligence, and a claim for punitive damages. Defendants removed the case to this Court based on diversity of citizenship. Terminix moves to dismiss Counts I, III, and IV of the Complaint, stay this litigation and compel arbitration.
All four Counts basically deal with the same alleged wrongful conduct. The heading to Count I is "PLAINTIFF V. ALL DEFENDANTS." Count II's caption contains the phrase "INTENTIONAL WRONG." "NEGLIGENCE" finds its way into the caption of Count III, while Count IV merely alleges respondeat superior and does not even deal with the theory of liability. In reality, The first three Counts muddle the theory of liability. Count I describes Defendants' actions as "willful and wanton conduct, recklessness, gross negligence, and negligence." (Id. at ¶30). Count II alleges Defendants were "careless, negligent, grossly negligent and reckless." (Id. at ¶41). Plaintiff's allegations in Count III mirror those in Count I. (Id. at ¶47).
Terminix originally moved to dismiss the Complaint in its entirety. However, after the motion was filed, and as a result of an agreement between Steigerwalt and Terminix, Terminix agreed to withdraw its motion with respect to Counts II (intentional wrong) and V (punitive damages) of the Complaint. It would appear that the basis of this agreement was that, at least for purposes of Fed. R. Civ. P 12(b)(6), the allegations in the complaint sufficiently asserted an ...