The opinion of the court was delivered by: Shadur, District Judge.
Plaintiffs contend that Johns-Manville Sales acted in two such
additional legal capacities: It was a miner-supplier of asbestos
and also acted as plaintiffs' physician when giving medical
examinations. That argument might technically be dealt with
simply by referring to the allegations of the Complaint.
Johns-Manville Sales is charged solely as an employer, not as a
supplier of asbestos or a provider of medical services. But
because plaintiffs could raise
the issue properly by a pleading amendment, the Court has
considered it on the merits and concludes that this case is not
an appropriate situation for the application of the dual capacity
First, Johns-Manville Sales had a duty as plaintiffs' employer
to provide a safe working environment. Its duty remained
unchanged whether Johns-Manville Sales was using its own asbestos
or asbestos supplied by another defendant. Goetz v. Avildsen Tool
and Machines, Inc., 82 Ill.App.3d 1054, 38 Ill.Dec. 324,
403 N.E.2d 555 (1st Dist. 1980). Johns-Manville Sales thus never
entered into the separate legal relationship necessary to trigger
the dual capacity doctrine established in Smith.
Second, plaintiffs' contention that Johns-Manville Sales
entered into a physician-patient relationship lacks merit.
Plaintiffs do not assert medical malpractice on the part of
Johns-Manville Sales either in the Complaint or, more important
for this purpose, in their supporting memorandum. Cf., McCormick
v. Caterpillar Tractor Co., 82 Ill.App.3d 77, 37 Ill.Dec. 522,
402 N.E.2d 412 (4th Dist. 1980) (allegation of medical
malpractice held to be within the dual capacity doctrine). They
charge that Johns-Manville Sales, through certain medical
examinations, was aware of plaintiffs' medical condition but
fraudulently or negligently concealed this information. That
claim also cannot establish the separate legal relationship
required by Smith.
2. Intentional Tort Claims Against Johns-Manville Sales
Complaint ¶ 113 alleges that all the tortious activity
described in other counts of the Complaint was committed
intentionally. Plaintiffs contend that suits for such intentional
torts against employees are not barred by Section 138.5(a).
Illinois law on that issue is not well settled. In analytical
terms the test is whether intentional torts are "accidental" and
thus compensable under the statute, bringing into play the
exclusivity provisions of Section 138.5(a). Collier v. Wagner
Castings Corp., 81 Ill.2d 229, 41 Ill.Dec. 776, 408 N.E.2d 198
Prior to Collier, two recent Illinois Appellate Court decisions
had touched on the question. In Mier v. Staley, 28 Ill. App.3d 373,
381, 329 N.E.2d 1, 8 (4th Dist. 1975) the Court stated
without any supporting authorities that "the only injuries, if
any, outside the Act would be intentional torts." Then Jablonski
v. Multack, 63 Ill.App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924
(1st Dist. 1978) distinguished two situations involving
intentional torts. There the court held that if a co-employee had
acted as the "alter ego" of the employer in committing an
intentional tort, the employer would be responsible for that tort
and should not be permitted to avoid liability by pointing to
worker's compensation liability. But where an employer does not
direct, encourage or commit an intentional tort, the court stated
the employer should not be forced to defend a common law action.
In Collier the Illinois Supreme Court found it unnecessary to
decide whether intentional torts are statutorily non-compensable.
However, the thrust of the opinion's general discussion indicates
strongly that the Court holds such a position. It cited
approvingly the reasoning of Professor Larson and the Jablonski
court (81 Ill.2d at 238-39, 41 Ill.Dec. at 781, 408 N.E.2d at
Larson suggests that an intentional tortfeasor should
not be able to shield his liability with the
exclusivity provisions of a compensation statute
premised on insuring accidental injuries . . . but
that if the injured party receives compensation
pursuant to the Act, he or she should not be heard to
subsequently allege their intentional nature. . . .
Our Appellate Court, in Jablonski v. Multack
(1978), 63 Ill.App.3d 908, 20 Ill.Dec. 715,
380 N.E.2d 924, has concluded that the law's paramount
interest is to avoid shielding from liability one who
intends to do harm and, further, that the legislature
could not be presumed to have intended to permit an
intentional tortfeasor to shift his liability to a
fund paid for with premiums collected from innocent
Given the favorable treatment of the Jablonski decision in
Collier, this Court finds that the analysis in Jablonski embodies
the current state of Illinois law. Under that opinion,
plaintiffs' allegations of intentional torts should not be
relegated to the statutory remedy.
Here plaintiffs do not allege misconduct by a specific employee
of Johns-Manville Sales. Instead the Complaint charges that the
harms to employees resulted from a uniform and intentional policy
developed by Johns-Manville Sales. On those allegations it is
Johns-Manville Sales itself that committed the intentional tort.
Johns-Manville Sales' motion for its dismissal under Complaint ¶
113 is therefore denied.
Such denial is, however, subject to one condition. In Collier,
81 Ill.2d at 241, 41 Ill.Dec. at 782, 408 N.E.2d at 204, the
Court held that "where an employee injured [intentionally] by a
coemployee has collected compensation on the basis that his
injuries were compensable under the Act, the injured employee
cannot then allege that those injuries fall outside the Act's
provisions." Were this Court presented with any evidence of a
plaintiff's having sought statutory compensation, Collier would
mandate dismissal of that plaintiff's allegations against
3. Liability of Johns-Manville Corporation, Canadian
Johns-Manville Asbestos, Ltd. and Canadian Johns-Manville
Plaintiffs allege that they were actually employed only by
Johns-Manville Sales. They contend that because the other three
Johns-Manville corporations are separate legal entities and not
"employers" for worker's compensation purposes, those
corporations are amenable to suit in a common law tort action.
Defendants contend that this Court should "pierce the corporate
veil" and find that the "employer" comprised all four
Johns-Manville entities, so that plaintiffs are limited by the
exclusive remedy provisions of Section 138.5(a).
This Court finds Judge Kirkland's opinion, McDaniel v.
Johns-Manville Sales Corp., 487 F. Supp. 714, 716 (N.D.Ill. 1978)
persuasive on this point:
The general rule is that holding companies or
subsidiaries are separate legal entitles, Divco
Wayne Sales Corp. v. Martin Vehicle Sales,
45 Ill. App.2d 192, 195 N.E.2d 287 (1963). Although
defendants cite cases in which courts have held
corporations and their subsidiaries jointly liable as
a single entity, defendants' cases are
distinguishable from this one. Each case involved a
situation where plaintiff sought to hold corporate
entities liable jointly because to do otherwise would
involve fraud. Defendants have uniformly been denied
the opportunity to pierce their own corporate veil in
order to avoid liability.
Moreover, Johns-Manville's motion must be denied on its own
terms. It seeks dismissal for failure to state a claim under Rule
12(b)(6). For that purpose the Complaint's allegations must be
taken as true — and it describes all four Johns-Manville
companies as separate entities and characterizes only
Johns-Manville Sales as the "employer."
Thus the motions by Johns-Manville Corporation, Canadian
Johns-Manville Asbestos, Ltd., and Canadian Johns-Manville
Company, Ltd. to dismiss because of the availability of worker's
compensation must be denied.
This is one of three contemporaneously-issued opinions in the
Johns-Manville Asbestosis cases. Because of the proliferation of
motions in the more than 50 cases consolidated for pre-trial
purposes, the Court is adopting the following procedure:
(1) On or before April 24, 1981 all parties
litigant are directed to apprise this Court by letter
(with copies of course to all other counsel) of the
actions to which the various rulings in this opinion
(2) All such letters shall also include a statement
identifying the fully-briefed motions (if any) that
remain to be decided in these cases after issuance of
these March 31, 1981 opinions.