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BOGNER v. ALLIED SIGNAL

February 1, 2005.

JOYCE E. BOGNER, Individually and as the Independent Executor of the Estate of RICHARD T. BOGNER, Plaintiff,
v.
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

ORDER

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.

  BACKGROUND

  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 Page 6 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.

  DISCUSSION

  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 Page 7 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 OPD.

  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, hospital and Page 8 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 accidental injury.

 820 ILL. COMP. STAT. § 310/7 (2004) (emphasis added) (footnote omitted).

  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 accidental Page 9 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' ...


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