September 25, 2015
A Victory for Exclusive Remedy on Asbestos
Plaintiffs challenged workers' comp's exclusive remedy provision based on exposure to work-related asbestos outside the workplace.
In a recent case, the 2nd Appellate District of California declined to open an new avenue to avoid the exclusive remedy of workers’ compensation in Melendrez v Ameron International Corporation, not only upholding the lower court’s grant of summary judgment for defendant/employer but also allowing the defendant to recover expert witness fees.
The employee, Lario Melendrez, was employed by Ameron for 24 years and was exposed to asbestos from insulation products. In 2011, he died from mesothelioma related to his asbestos exposure. His survivors/plaintiffs attempted to circumvent the exclusive remedy rule by alleging the employee had been allowed to take waste and scraps of insulated pipe home for personal use. Plaintiffs asserted the employee should not be shielded by workers’ compensation exclusivity for his non-work-related use of the employer’s asbestos products. Neither the trial court nor the appellate courts agreed with the effort to create a new exception to the exclusive remedy rule. The Appellate Court commented as follows:
“While we agree that a triable issue of fact exists whether Melendrez’s exposure to asbestos at home arose out of and in the course of his employment with Ameron, that issue is not material to the viability of Ameron’s defense of workers’ compensation exclusivity. It is undisputed that Melendrez’s exposure to asbestos in his employment with Ameron substantially contributed to his mesothelioma. Therefore, under the contributing cause standard applicable in workers’ compensation law, his mesothelioma is covered by workers’ compensation, and his separate exposure at home does not create a separate injury outside workers’ compensation coverage. Thus, plaintiffs’ lawsuit is barred by workers’ compensation exclusivity.”
Citing the recent California Supreme Court holding in South Coast Framing, the 2nd district held:
“Given the purposes of workers’ compensation, courts have long applied a broad concept of contributing cause to bring injuries within workers’ compensation coverage. In short, if a substantial contributing cause of an injury arises out of and in the course of employment, the injury is covered by workers’ compensation, even if another, nonindustrial cause also substantially contributed to the injury. As recently explained in South Coast Framing, Inc. v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291 (South Coast Framing): “[T]he workers’ compensation system is not based upon fault. ‘It seeks (1) to ensure that the cost of industrial injuries will be part of the cost of goods rather than a burden on society, (2) to guarantee prompt, limited compensation for an employee’s work injuries, regardless of fault, as an inevitable cost of production, (3) to spur increased industrial safety, and (4) in return, to insulate the employer from tort liability for his employees’ injuries.’…”
The court also cited case law that had established that the exclusivity provisions of workers’ compensation also apply to collateral or derivative injuries:
“[C]ourts have regularly barred claims where the alleged injury is collateral to or derivative of a compensable workplace injury.”… see also Vacanti, supra, 24 Cal.4th at p. 815 [“courts have barred employees from suing for psychic injuries caused by their termination, or their employer’s abusive conduct during the termination process]; LeFiell, supra, 55 Cal.4th at p. 284 [“‘[c]ourts have held that the exclusive jurisdiction provisions bar civil actions against employers by nondependent parents of an employee for the employee’s wrongful death, by an employee’s spouse for loss of the employee’s services or consortium, and for emotional distress suffered by a spouse in witnessing the employee’s injuries…'”
The court further distinguished authorities proposed by plaintiff to expand the ability to escape the exclusivity clause. In each of the cases cited by plaintiff, the court noted there were findings that the employee was not performing any service related to employment or even actions prohibited by his employer. In each of those cases, the injury was solely related to the non-work-related episode, and the plaintiff offered no authority to support severing a single injury into separate components as would be required in this case.
Comments and Conclusions:
This case represents an interesting effort to evade the exclusive remedy provisions in workers’ comp. A successful plaintiff’s result could potentially have expanded the ability to file civil actions whenever an employee took home something from work that eventually contributed to a work injury. Think a carpenter who receives permission to take home a tool and later files both a WC injury claim and a civil action against his employer for allowing him to use a work tool at home that resulted in injury. The potential combinations are endless for such scenarios.
Luckily, with this case the exceptions noted by plaintiffs in their brief will remain isolated and not expanded under this ruling.