On appeal from Superior Court of New Jersey, Law Division, Ocean County, L-365-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Sapp-Peterson and Messano.
Plaintiff, Betty Ann Kearney, appeals from an order of summary judgment dismissing the wrongful death and survivorship action instituted by her on behalf of herself, her deceased husband, and her two minor children against Exxon Corporation and against ConocoPhillips and its predecessors, Phillips Petroleum, Tosco Refining Company, and Tosco's wholly-owned subsidiary, Bayway Refining Company, as failing to meet the context prong of the Millison/Laidlow exception to the workers' compensation bar set forth in N.J.S.A. 34:15-8. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 177-79 (1985) and Laidlow v. Hariton Mach. Co., 170 N.J. 602, 617 (2002).
Plaintiff's former husband, William Kearney (Kearney), was employed at the Bayway Refinery continuously from 1974 until he was diagnosed as suffering from adenocarcinoma of the esophagus in February 2001. In 1980, Kearney was promoted to management, and from 1986 to his cessation of employment, Kearney worked as a shift superintendent. In that capacity, Kearney was responsible for the operation of the entire refinery, especially during off hours; he served as incident commander for plant emergencies; and he was responsible for notifying and meeting with all state, local and federal agencies, dealing with the press, and coordinating any unit start-ups or shut-downs as the existing situation demanded. Kearney died on February 9, 2002 at the age of 49. During his employment, the Bayway refinery was first owned by Exxon, which was dismissed from this suit by order of summary judgment from which there has been no appeal. In 1993, Exxon sold the refinery to Bayway Refining, a wholly-owned subsidiary of Tosco. In April 2001, the refinery was sold to Phillips Petroleum, and in 2002, Phillips merged with Conoco to form ConocoPhillips.
ConocoPhillips has assumed the liabilities of Bayway Refining and Tosco, neither of which presently exist. However, the claims forming the basis for this appeal emanate solely from the period of ownership by Bayway Refining/Tosco. In essence, plaintiff alleges that her husband's cancer was the result of workplace exposure to volatile organic compounds (VOCs) occurring as the result of the failure by Bayway Refining/Tosco to promptly repair leaking valves at the facility.
In most circumstances, the New Jersey Workers' Compensation Act, N.J.S.A. 43:15-1 to -128, serves as a worker's sole and exclusive remedy against an employer for a work-related injury, including an occupational disease. Millison, supra, 101 N.J. at 169; N.J.S.A. 34:15-8 (surrender of other remedies); N.J.S.A. 34:15-31 (occupational diseases). However, N.J.S.A. 34:15-8 provides a limited exception to the exclusive-remedy provisions of the Act if the plaintiff can demonstrate that the injury or death results from an "intentional wrong."
The application of the intentional wrong exception was articulated by the Supreme Court in its decisions in Millison and Laidlow, where it was established that, to avoid the workers' compensation bar, a plaintiff must demonstrate that (1) the employer knew that its acts were substantially certain to result in injury or death (the conduct prong) and (2) the resulting injury and the circumstances of its infliction on the worker were "(a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize" (the context prong). Laidlow, supra, 170 N.J. 617; see also Millison, supra, 101 N.J. at 177-79.
As the Court stated in Laidlow:
In general, the same facts and circumstances will be relevant to both prongs of Millison. However, as a practical matter, when an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries. The first is whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury. If that question is answered affirmatively, the trial court must then determine whether, if the employee's allegations are proved, they constitute a simple fact of industrial life or are outside the purview of the conditions the Legislature could have intended to immunize under the Workers' Compensation bar.
Resolving whether the context prong of Millison is met is solely a judicial function. Thus, if the substantial certainty standard presents a jury question and if the court concludes that the employee's allegations, if proved, would meet the context prong, the employer's motion for summary judgment should be denied; if not, it should be granted. [Laidlow, supra, 170 N.J. at 623.]
In a thoughtful written opinion granting summary judgment to defendants in this matter, the motion judge concluded that plaintiff had offered evidence sufficient to raise an issue of fact as to whether the conduct prong had been met, requiring trial on that issue, but that because evidence sufficient to meet the context prong was absent, summary judgment was appropriate.
On appeal, plaintiff claims that (1) summary judgment should not have been granted to Tosco or Bayway Refinery because no motion was made on behalf of either; (2) summary judgment was premature because plaintiff sought further discovery; and (3) the conduct of Tosco and Bayway Refinery met both prongs of the Millison/Laidlow test. We disagree and affirm.
We address plaintiff's first two arguments only briefly, finding them of insufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).
Because Kearney's illness manifested in 2001, and his employment essentially ceased at that time, as a factual matter, plaintiff cannot establish direct liability on the part of Phillips Petroleum or ConocoPhillips; liability, if any, can exist in the factual circumstances of this case (the conduct of Exxon having been excused) only as the result of the actions of Bayway Refining, operating as a subsidiary of Tosco. Although only ConocoPhillips answered plaintiff's complaint, it did so in its capacity as the successor to Bayway Refining, Tosco and Phillips, and it has acknowledged that it would be subject to vicarious successor-corporation liability should the conduct of its predecessors be found actionable. Throughout the discovery phase of the action, the parties operated with the tacit understanding that ConocoPhillips was responding not only on its own behalf but also on behalf of the predecessor entities for which it retained potential liability. Because Kearney's employment at Bayway spanned the period of the refinery's control by Bayway Refining from 1993 to 2001, as a practical matter, the discovery that was directed to ConocoPhillips, and that entity's ensuing summary judgment motion and the evidence supporting that motion focused upon that period of time. In these circumstances, we find no fault with the determination of ConocoPhillips to seek summary judgment only in its own name and to offer a statement of uncontested material facts in that capacity. It was clear to all, and most particularly to the motion judge, which entities were the focus of plaintiff's claims.
We further find no abuse of discretion on the part of the motion judge when he, in effect, denied the further extension of discovery sought by plaintiff by granting summary judgment to defendants, rendering such an extension moot. At the time, factual discovery had been extended on numerous occasions,*fn1 and no discovery requests upon ConocoPhillips remained pending. ConocoPhillips had provided answers to three sets of interrogatories, produced 50,000 documents, and six of its employees had given their depositions. Although plaintiff expressed a need for additional discovery at the time of summary judgment, her attorney at the time attested in a certification in support of his firm's withdrawal from representation that she had never reviewed the 12,643 pages of documents that had been offered by ConocoPhillips in a supplemental production in January 2006. Moreover, plaintiff failed to specify to the motion judge or to us what documents or other discovery she sought or their relevance to the issue presented. Nothing in the record before us ...