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' ...