of 1982. Before the Court at this time is defendant's motion to dismiss
(Document No. 6). The defendant raises a number of points in support of
its motion. First, the defendant alleges that Count I, and Count II in so
far as it pertains to former employees, are barred by the exclusivity
provisions of the Illinois Workmen's Compensation Act, Ill.Rev.Stat.Ann.
ch. 48, § 138.5 (Smith-Hurd Supp. 1984-85), or the Illinois Workers'
Occupational Diseases Act, Ill. Rev.Stat.Ann. ch. 48, § 172.40
(Smith-Hurd Supp. 1984-85). Second, the defendant alleges that Count III
fails to state a valid claim for relief since the Uniform Hazardous
Substance Act, Ill.Rev.Stat.Ann. ch. 111 1/2, § 251 et seq.
(Smith-Hurd) does not apply to the industrial use or manufacturing of
industrial products. Finally, the defendant contends that this action, as
to all counts, cannot be maintained as a class action.
With regard to the defendant's first contention that the exclusive
remedy provisions of the Workmen's Compensation Act and/or the
Occupational Disease Act bar any common law action for the alleged
injury, the Court holds that these provisions do not bar the plaintiffs'
action. Initially, the Court notes that the exclusivity provisions of the
Workmen's Compensation Act and the Workers' Occupational Diseases Act are
homologous for purposes of judicial construction. Dur-Ite Co. v.
Industrial Commission, 394 Ill. 338, 68 N.E.2d 717 (1946).
As a matter of established Illinois law, to escape the bar of
exclusivity provisions the plaintiff must show that the injury (1) was
not accidental; (2) did not arise out of employment; (3) was not incurred
during the course of employment; or (4) was noncompensable under the
act. Fregeau v. Gillespie, 96 Ill.2d 479, 71 Ill.Dec. 716, 451 N.E.2d 870
(1983). Here the only question is whether the injuries alleged were
accidental. Plaintiffs contend that the injuries were not accidental but
were intentional. The complaint alleges that the defendant
intentionally, knowingly, and willfully exposed the plaintiffs to toxins
by changing an industrial process. Several recent Illinois cases affirm
the plaintiffs' argument.
In Handley v. Unarco Indus. Inc., 124 Ill. App.3d 56, 79 Ill.Dec. 457,
463 N.E.2d 1011 (1984), plaintiffs-employees brought suit alleging
murder, fraud, and battery; that the defendant employer intended to kill
them and that defendant's conscious purpose was that asbestos would
become trapped in the workers' bodies and that defendant intended bodily
harm to plaintiffs. Additionally the complaint alleged fraud, in that
defendant represented asbestos dust was harmless; that defendant knew
this was false and that plaintiffs would become ill and die; that
defendant knew the plaintiffs were not aware of the hazard and that
defendant made the representations intending that the plaintiffs would
rely upon them. The defendant's motion to dismiss based upon the
exclusive remedy provisions Worker's Occupational Diseases Act was
denied. The court recognized that these allegations were apparently
posited to escape the exclusive remedies at the act, but held them
sufficient to allege that the defendant directed, encouraged, or
committed an intentional tort. Thus the action fell outside at the act's
remedies. The court buttressed its holding by arguing that the balance
established under the no-fault liability system of the Workers'
Occupational Diseases Act and the Workmen's Compensation Act would be
upset if the court allowed an employer who committed an intentional tort
to use the Act as a shield against full liability thereby shifting
liability throughout the system on other innocent employers.
In another asbestos case brought before the Federal District Court for
the Northern District of Illinois the court had to decide whether the
Illinois Worker's Compensation Act barred a complaint alleging an
employer's intentional torts. Matter of Johns-Mansville/Asbestosis
cases, 511 F. Supp. 1229 (N.D.Ill. 1981). The court held that the
complaint, which alleged a uniform and intentional policy to harm the
employees, fell outside the Act's provision.
Other recent cases, while not precisely on point, implicitly support
the plaintiffs' position. In Mier v. Staley, 28 Ill. App.3d 373, 381,
329 N.E.2d 1, 8 (1975), the court stated that "the only injuries, if
any, outside the Act would be intentional torts." In Jablonski v.
Multack, 63 Ill. App.3d 908, 20 Ill.Dec. 715, 380 N.E.2d 924 (1978), the
court held that a corporate employer may not be the subject of a suit at
common law by an employee for damages intentionally afflicted by a
co-employer not acting as the employer's alter ego. The Illinois Supreme
Court in Collier v. Wagner Castings Company, 81 Ill.2d 229, 41 Ill.Dec.
776, 408 N.E.2d 198 (1980), stated in dictum:
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 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 employers.
81 Ill.2d at 238-39, 41 Ill.Dec. at 781, 408 N.E.2d at 203.
Thus, the exclusivity provisions of the Acts do not bar an employee
from maintaining a common law action against his employer for an
intentional tort. Here, the allegations of the complaint, taken as true
and in a light most favorable to the plaintiffs, properly state a claim
in intentional tort. As such, Count I falls outside the exclusive remedy
provisions of the Workmen's Compensation Act, and the Occupational Disease
The Court recognizes that this exception is subject to potential
abuse. Any employee injured in the workplace may seek to avoid the
exclusive remedy provisions by alleging that his employer intentionally
caused the injury. However, while such allegations may not be susceptible
to a motion to dismiss, they could, and should if unsupported, fall
victim to a motion for summary judgment. Further, if the allegations are
totally unfounded in fact, the defendant may recover its attorney's fees
in defending the action.
The defendant next argues that Count III should be dismissed since the
Uniform Hazardous Substance Act, Ill.Rev. Stat.Ann. ch. 111 1/2, §
251 does not encompass or regulate the industrial manufacturing and
industrial use of hazardous substances, and even if it did, it does not
provide for a private cause of action. The plaintiffs have not responded
to this argument. In any event, the defendant is correct. The Act was
designed to relate to hazardous substances intended or suitable for
household use. The act therefore is inapplicable to this case, since
by-products from a coke oven at a steel manufacturing plant are not
substances intended or suitable for household use. Thus, Count III fails
to state a claim upon which relief can be granted.
Finally, the defendants maintain that this action cannot be maintained
as a class action. The Court reserves ruling on the class certification
issue until both parties have more fully briefed the relevant issues.
Accordingly, the defendant's Motion to Dismiss (Document No. 6) is
GRANTED IN PART and DENIED IN PART. Count III of the complaint is hereby
DISMISSED. The plaintiffs are ORDERED to file a memorandum in support of
class certification within thirty (30) days from the date of this Order.
The defendant may then respond to this memorandum no later than fifteen
(15) days after receiving it.
IT IS SO ORDERED.
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