United States District Court, C.D. Illinois, Peoria Division
February 1, 2005.
JOYCE E. BOGNER, Individually and as the Independent Executor of the Estate of RICHARD T. BOGNER, Plaintiff,
ALLIED SIGNAL, INC., Individually and as Successor-in-interest to ALLIED CHEMICAL CORPORATION, BF GOODRICH COMPANY, BORDEN CHEMICAL, INC., BORDEN, INC., CHEVRON USA, INC., a successor to Gulf Oil Company, CONDEA VISTA COMPANY, CONOCO, INC., CONOCO, INC., Individually and as Successor-in-Interest to the CONTINENTAL OIL COMPANY, THOMPSON-APEX COMPANY AND CONOCO CHEMICALS, EPEC POLYMERS, INC., GENCORP, Individually and as Successor-in-Interest to GENERAL TIRE AND RUBBER COMPANY, GEON COMPANY, GEORGIA GULF CORPORATION, GEORGIA-PACIFIC CORPORATION, GOODYEAR TIRE & RUBBER COMPANY, GULF OIL CORPORATION, MONOCHEM, INC., MONSANTO COMPANY, OCCIDENTAL ELECTROCHEMICALS CORPORATION, OLIN CORPORATION, PPG INDUSTRIES, INC., PACTIV CORPORATION, POLYONE CORPORATION, RHONE-POULENC, INC., Individually and as Successor-in-Interest to Stauffer Chemical Company, SHELL OIL COMPANY, Individually and as Successor-in-Interest to Shell Chemical, Inc., and Shell Chemical Company, TENNECO, INC., TENNECO OIL COMPANY, THE AMERICAN CHEMISTRY COUNCIL, THE DOW CHEMICAL COMPANY, THE SOCIETY OF PLASTICS INDUSTRY, INC., UNION CARBIDE CORPORATION, UNIROYAL, WHITTAKER CORPORATION, Individually and as Successor-in-Interest to Great American Chemical Corporation, Defendants.
The opinion of the court was delivered by: MICHAEL MIHM, District Judge
This matter comes before the Court on Defendant Goodrich
Corporation's Motion for Summary Judgment [#553].*fn1 For
the following reasons, the Motion is GRANTED.
Plaintiff Joyce E. Bogner filed this lawsuit in her individual
capacity and as the executor of her husband's estate. She alleges
that her deceased husband, Richard T. Bogner, was exposed to high
levels of vinyl chloride and other toxic substances while he
worked in Defendant Goodrich Corporation's (Goodrich's) Henry,
Illinois, manufacturing plant from 1965 to 1989. She alleges that
such exposure caused Mr. Bogner to acquire angiosarcoma, a rare
and fatal form of liver cancer. Plaintiff sued Goodrich, forty
other named defendants, and fifty unnamed defendants.
After various motions to dismiss and other decisions, the only
claims that remain against Goodrich are Bogner's claims for
"battery and intentional tort," fraudulent concealment, and loss
of consortium. Several claims remain against other defendants who
are not involved in this motion.
Ordinarily, the Illinois Workers' Occupational Disease Act
(ODA) provides the exclusive remedy for an employee that
contracts an occupational disease. 820 ILL. COMP. STAT. §
310/1(f) (2004); Hartline v. Celotex Corp., 651 NE.E.2d 582,
584 (Ill.App.Ct. 1st Dist. 1995). Whether the ODA allows an
exception to this exclusivity rule for intentional torts that an
employer commits against an employee is a threshold question on
this motion. Neither the statute's text nor an opinion of the
Illinois Supreme Court answers the question. When faced with an
undecided question of state law in a diversity case, the role of
a federal court is to predict what a states highest court would
do if the same point of law was before them. Reiser v.
Residential Funding Corp., 380 F.3d 1027, 1029 (7th Cir. 2004).
Goodrich argues that no such exception is found in the plain
language of the statute and that an Illinois Supreme Court case
implicitly supports this finding. Bogner, on the other hand,
responds that Illinois courts have clearly relied on such an
exception to the ODA and that the supreme court case on which
Goodrich relies is inapposite. For the following reasons, the
Court agrees with Bogner in finding that, if the Illinois Supreme
Court was faced with the same question, they would hold that
there is an intentional-tort exception to the ODA.
Goodrich's first argument is that the language of the ODA
specifically disallows an intentional-tort exception. Goodrich
relies on the final sentence of section 7 of the ODA. That
section states that the "death of an employee by reason of an
occupational disease, arising out of and
in the course of his or her employment, shall be treated as the
happening of an accidental injury." See 820 ILL. COMP. STAT. §
310/7 (2004) (emphasis added). Goodrich argues that this language
means that all occupational diseases must be treated as
accidental even if they were in fact intentionally inflicted.
Thus, the argument goes, if there are no intentional occupational
diseases, then can be no intentional-tort exception to the ODA.
This argument, however, conveniently ignores the context of the
above quoted section and gives short shrift to the purpose of the
Prior to 1974, section 7 of the OPD listed the benefits that a
worker would receive if he developed an injury compensable under
the ODA. See 820 ILL. COMP. STAT. ANN. § 310/7 (West 2004)
(historical and statutory notes). This was similar to how the
Illinois Workers' Compensation Act (WCA) worked, and continues to
work today. The WCA lists an injury and then lists a
corresponding award amount. In the case of a lost foot, for
example, the employee would receive some percentage of the
employee's usual compensation for 155 weeks. See 820 ILL. COMP.
STAT. § 305/8 (2004). However, in 1974 the OPD was amended so
that a worker received the same compensation for injury or death
caused by a diseased under the ODA as they would for an injury
caused by an accident under the WCA. See 820 Ill. ILL. COMP.
STAT. ANN. § 310/7 (West 2004) (historical and statutory notes).
In order to effectuate this change, the legislature, rather than
relisting all the possible injuries and their corresponding
awards in the ODA, simply referenced the WCA within section 7 of
the ODA. Thus, section 7 is titled "Compensation and benefits as
provided by the Workers' Compensation Act." 820 ILL. COMP. STAT.
310/7 (2004). The statute reads as follows:
If any employee sustains any disablement, impairment,
or disfigurement, or dies and his or her disability,
impairment, disfigurement or death is caused by a
disease aggravated by an exposure of the employment
or by an occupational disease arising out of and in
the course of his or her employment, such employee or
such employee's dependents, as the case may be, shall
be entitled to compensation, medical, surgical,
rehabilitation care, prosthesis, burial costs, and
all other benefits, rights and remedies, in the same
manner, to the same extent and subject to the same
terms, conditions and limitations, except as herein
otherwise provided, as are now or may hereafter be
provided by the "Workers' Compensation Act" for
accidental injuries sustained by employees arising
out of and in the course of their employment (except
that the amount of compensation which shall be paid
for loss of hearing of one ear is 100 weeks) and for
this purpose the disablement, disfigurement or death
of an employee by reason of an occupational disease,
arising out of and in the course of his or her
employment, shall be treated as the happening of an
820 ILL. COMP. STAT. § 310/7 (2004) (emphasis added) (footnote
Goodrich ignores the emphasized language above and the
statutory history in the hopes that the Court will find that
section 7 stands for the broad proposition that the ODA expressly
disallows an exception for intentional torts committed by
employers. However, as the bolded language above suggests
(language not found in Goodrich's quotations of the
statute),*fn2 the section stands for the much narrower
proposition that, for the purposes of determining compensation
under the ODA, an occupational disease will be treated as an
accidental injury. The language quoted by Goodrich merely
emphasizes that the an employee injured under the ODA will
receive the same compensation as worker injured accidentally
under the WCA. Accordingly, the Court finds that the language in
section 7 does not foreclose the possibility of an
intentional-tort exception to the ODA.
The Illinois Supreme Court case that Goodrich primarily relies
on is Parks v. Libbey-Owens-Ford Glass Co., 195 N.E. 616 (Ill.
1935). Goodrich claims that Parks "implicitly hold[s] that a
`willful violation' exception to the workers [sic] compensation
bar simply was not compatible with a statutory provision that
equates an occupational disease with `the happening of an
injury.'" However, Goodrich does not explain how this is so.
Having reviewed the case, it is clear that Parks in no way
stands for the proposition that Goodrich desires it to namely,
that there is no intentional-tort exception to the ODA. To the
contrary, the case raised and answered the following questions:
whether "(1) . . . the trial court was without jurisdiction to
hear and determine the cause because the occupation in which the
plaintiff was engaged was not within the provisions of section 1
of the Occupational Diseases Act; (2) . . . section 1 of this act
and sections 12 and 13 of the Health, Safety and Comfort Act
violated the due process provisions of the Federal and State
Constitutions; and (3) . . . they contravene article 3 of the
Constitution of this state." Id. at 617-18. In asking in
answering these questions, the Parks court simply did not
address, implicitly or explicitly, whether the ODA allows a
exception for intentional torts.
Indeed, this Court is not aware of any decision by the Illinois
Supreme Court holding that there is or is not an intentional-tort
exception to the ODA. That court has held, however, that the WCA
contains an exception for intentional torts, Collier v. Wagner
Castings Co., 408 N.E.2d 198, (Ill. 1980); Meerbrey v. Marshall
Field & Co., Inc., 564 N.E.2d 1222 (Ill. 1990), and that the
exclusivity provisions of the WCA and ODA are closely related.
See Handley v. Unarco Industries, Inc., 463 N.E.2d 1011, 1022
(Ill. 1984) ("[T]he exclusivity provisions of the Workers'
Compensation Act and the Workers' Occupational Diseases Act [are]
`homologous' for purposes of judicial construction.") (quoting
Dur-Ite Co. v. Industrial Comm'n, 68 N.E.2d 717, 720 (Ill.
Further, there are several Illinois appellate-court cases
finding that there is an intentional-tort exception to the ODA.
Before discussing them, the Court notes that, though decisions of
lower state courts are helpful and should be considered when
evaluating an undecided question of state law, they do not have
binding force. Green v. J.C. Penney Auto Ins. Co., Inc.,
806 F.2d 759, 761 (7th
The first Illinois appellate decision on point, and the one
that most convincingly argues for finding an exception to the
exclusivity provision of the ODA for intentional torts, is
Handley v. Unarco Industries, Inc., 463 N.E.2d 1011, 1022
(Ill.App. Ct. 1st Dist. 1984). The court explained that
[t]he Workers' Occupational Diseases Act, like the
Workers' Compensation Act, establishes a system of
liability without fault, and abolished traditional
defenses available to the employer in exchange for
the prohibition against common-law suits by
employees, but we are not persuaded that this
legislative balance was meant to permit an employer
who encourages, commands, or commits an intentional
tort to use the act as a shield against liability by
raising the bar of the statute and then shifting
liability throughout the system on other innocent
Id. at 1023. Though the Court recognizes that this case is only
persuasive, it has been cited by the Illinois Supreme Court for
the proposition that an employer's directing an employee to
commit a tort against a second employee is sufficient for the
second employee to side step the WCA's exclusivity provisions.
The Court recognized Handley as stating that the "exclusivity
provisions did not bar plaintiff's suit where allegation that
employer knew the dangers of asbestos and intended to kill
employees satisfied the requirement that the employer expressly
authorized the intentional tort[.]" Meerbrey v. Marshall Field
and Co., Inc., 564 N.E.2d 1222
, 1228 (Ill. 1990). Other Illinois
appellate decisions, as well as one federal district court
decision applying Illinois law have found that Illinois
recognizes and an intentional-tort exception to the ODA. See
Hartline v. Celotex Corp., 651 NE.E.2d 582, 584 (Ill.App.Ct.
1st Dist. 1995); Ryherd v. Growmark, Inc. 509 N.E.2d 113, 115
(Ill.App.Ct. 4th Dist. 1987); Martin v. Granite City Steel
Division of Nat'l Steel Corp., 607 F.Supp. 1430
, 143-1433 (S.D.
Ill. 1985). For all these reasons, we find that, if the Illinois
Supreme Court were faced with the question it would most likely
find that there is an intentional-tort exception to the ODA.
Having determined that there is an intentional-tort exception
to the ODA, the next logical step is to determine the parameters
of that exception. Although there is no Illinois Supreme Court
case directly on point, every lower Illinois court that has
examined the issue has determined that the exception is extremely
narrow. Illinois appellate courts have unanimously held that in
order for an employee to overcome the exclusivity bar of either
the WCA or ODA, an employee must show that the employer had the
specific intent to harm the employee. See, e.g., Limanowski v.
Ashland Oil Co., Inc., 655 N.E.2d 1049, 1052 (Ill.App. 1st
District 1995); Copass v. Ill. Power Co., 569 N.E.2d 1211,
1214-16; Hartline, 651 NE.E.2d at 584. In doing so, such courts
have specifically stated "that the defendant was `substantially
certain,' or knew with a `strong probability,' that the injury
would result from its actions is not sufficient to escape the
strictures of the Act's exclusivity provisions." Hartline, 651
NE.E.2d at 584. Indeed, at least four Illinois courts of appeals
and one federal district court have quoted Professor Larson's
treatise on workers' compensation in demarcating the boundaries
of the exception. Professor Larson states that,
`Even if the alleged conduct goes beyond aggravated
negligence, and includes such elements as knowingly
permitting a hazardous work condition to exist,
knowingly ordering a claimant to perform an extremely
dangerous job, wilfully failing to furnish a safe
place to work, or even wilfully 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.'
Limanowski, 655 N.E.2d at 1053 (quoting 2A LARSON, WORKERS'
COMPENSATION LAW § 65.11, 12-1 through 12-9); see also
Mayfield v. ACME Barrel Co., 629 N.E.2d 690
, 694 (Ill.App.Ct.
1st Dist. 1994) (quoting this same language); Copass,
569 N.E.2d at 1214 (same); Collier, 388 N.E.2d 265
at 269 (same);
Naszke v. Federal Exp. Corp., 1996 WL 450832, (N.D. Ill 1996)
(docket no. 94-6084) (same) (unpublished memorandum and order).
Although the Court recognizes that this creates an extremely
narrow exception to the exclusivity bar for intentional torts,
the Court finds that, if faced with the question, the Illinois
Supreme Court would adopt the standard proposed by Professor
Larson and the lower Illinois courts. A narrow exception is in
harmony with the solution to the labor-relations balancing act
implemented by Illinois workers' compensation system. See
Copass, 569 N.E.2d at 1215-16. Indeed, "[a]dopting the
substantial-certainty standard would disturb this careful balance
because of the difficulty of employing it to distinguish between
accidental and nonaccidental injury." Id. at 1216.
What remains is to apply the specific-intent-to-injure standard
to the proof submitted by Bogner. Bogner attached over eighty
documentary exhibits to her sixty-page opposition to Goodrich's
motion for summary judgment. Within these exhibits are numerous
documents that tend to prove that Goodrich had knowledge that
vinyl chloride was harmful, and that it did not to share this
information with its employees (at least, not until after 1974).
For example, Bogner produces a May 12, 1959 letter from Dow
Chemical to Bill McCormick, who was the head of Goodrich's
Department of Industrial Hygiene and Toxicology, stating that 500
parts per million of vinyl chloride in plants which was the
federal regulatory limit at the time was likely harmful. Bogner
also cites a November 12, 1964 internal memo from Goodrich's
Medical Director, Rex Wilson to an official Goodrich's Ohio
facility. The memo states that Goodrich had recently observed
several hand problems with employees working with vinyl chloride.
The memo asks whether Ohio employees are experiencing similar
hand problems and asks the recipient, the Ohio plant doctor, to
secretly check employees hands for problems when performing any
Goodrich's exhibits are replete with similar documents, all
which tend to prove that Goodrich was aware early on of the
threat posed by vinyl chloride, and that they did not share this
fact with employees working with vinyl chloride. However, this is
not the type of evidence of specific intent to harm sufficient to
invoke the intentional-tort exception to the ODA. As noted
above, Illinois courts have specifically rejected the proposition
that knowledge of a harmful a working condition, failing to warn
about such a hazard, or failing to furnish a safe place to work
is sufficient to invoke the intentional-tort exception to
Illinois workers' compensation system. Accordingly, Goodrich's
Motion for Summary Judgment must be granted.
This is true for all of Bogner's remaining claims against
Goodrich, including Bogner's claims for fraudulent concealment
and loss of consortium. Though both parties at times refer to
fraudulent concealment without acknowledging that the principles
of the exclusivity clause of the ODA apply to it including the
requirement that a plaintiff prove specific intent to harm in
order to avoid the exclusivity clause that proposition is
untenable. Though it is true that there must be a material
dispute of fact as to all elements of fraudulent concealment in
order for Bogner to prevail on summary judgment, Bogner must also
offer some proof of Goodrich's specific intent to harm Mr. Bogner
to overcome the exclusivity provision of the ODA. Because, as
discussed above, Bogner has not done so, her claim of fraudulent
concealment must fail. Finally, Bogner's claims for loss of
consortium necessarily expire with her primary tort claims. See
Fregeau v. Gillespie, 451 N.E.2d 870, 873 (1983) (holding that
where the exclusivity clause of the WCA bars the employee, any
derivative claims are also barred).
The Court notes that the record suggests reprehensible conduct
by Goodrich in failing to protect its employees from known
hazards and failing to provide its employees, including Richard
Bogner, with a safe working environment. However, in the context
of the claims against Goodrich now before the Court, and the
facts and law applicable to those claims, Bogner's claims against
Goodrich must fail.
Defendant Goodrich's Motion for Summary Judgment [#553] is
GRANTED, and Defendant Goodrich is TERMINATED as a
party-defendant. All other pending motions related to Defendant
Goodrich [#566, #578, #581, and #587] are therefore MOOT. The
deadline for submission of a Joint Status Report by the remaining
parties to the case, which was inadvertently terminated on
January 5, 2005, is reset for April 29, 2005, and further
proceedings are referred to Magistrate Judge Cudmore.