Utah High Court Hints that Intentional Tort Exception to Exclusivity Might Not Apply to Occupational Disease Claims

Observing that Utah has recognized the intentional tort exception to exclusivity in cases falling under the state’s Workers’ Compensation Act (WCA), but had not (yet) extended the exception to cases falling within the state’s separate Occupational Disease Act (ODA), the Supreme Court of Utah declined to rule on a trial court’s decision that denied summary judgment in favor of an employer sued in tort by an employee who developed lead poisoning after working with large volumes of scrap lead in the workplace [Kay v. Barnes Bullets, 2021 UT 64, 2021 Utah LEXIS 143 (Nov. 4, 2021)]. Instead, the Court remanded the case for a determination as to whether the plaintiff’s lead poisoning should be governed by the ODA—and not the WCA—and if so, whether the intentional tort exception to exclusivity should be extended to claims involving occupational diseases.

Background

Layne Kay (“the plaintiff”) contracted lead poisoning while working for the employer, Barnes Bullets (Barnes), a bullet manufacturer. He began working there in August 2008. One of the plaintiff’s duties was melting lead. While Barnes mostly makes lead-free bullets, it dedicates a “small percentage” of its operation to making bullets with lead cores. For years, Barnes made these bullets by buying scrap lead, cutting it into tiny bits, and melting it down using a small and relatively unsophisticated melting pot.

In 2013, when tests revealed that the smelting process produced unsafe levels of airborne lead, Barnes stopped melting and began purchasing lead wire for its lead-core bullets. Before it stopped melting lead, Barnes used several safety protocols in the lead-melting process: melting took place outdoors and employees wore overalls, leather gloves, and a face shield or goggles. But Barnes did not provide respirators to employees who melted lead until after the 2013 safety tests.

Between November 2012 and May 2013, Barnes purchased more than 40,000 pounds of scrap lead, the bulk of which it tasked the plaintiff with melting. It was during this period that the began suffering from “respiratory distress, tremors and mood swings, chronic and persistent cough, neurological difficulties, and chronic fatigue.” Although Barnes stopped melting lead in September 2013, the plaintiff nevertheless contracted severe lead poisoning that left him permanently disabled.

Civil Suit Filed; Comp Claim Resolved

In April 2015, the plaintiff filed suit against Barnes for his injuries. The parties stayed the litigation in November 2016 while the plaintiff pursued a workers’ compensation claim with the Utah Labor Commission. The parties resolved the workers’ compensation proceeding in March 2018 after the Labor Commission awarded $337,500 to the plaintiff. Following resolution of the claim, the parties lifted their stay and Barnes moved for summary judgment in the civil action, contending that the exclusive remedy provisions of the Utah Workers’ Compensation Act (“WCA”) barred the plaintiff’s suit against Barnes. The plaintiff countered that the exclusivity provision did not apply to his claim, because it fell under the recognized intentional-injury exception. According to the plaintiff, because his supervisors knew melting lead was dangerous and Barnes was not complying with safety regulations, Barnes had intentionally poisoned him.

Trial Court Denies Summary Judgment

The district court denied Barnes’s motion, holding that a reasonable juror could infer intentional injury from Barnes’s failure to comply with safety regulations and from the fact that the plaintiff melted an amount of lead unprecedented in the company’s history. Following this ruling, Barnes petitioned for an interlocutory appeal, which the Supreme Court of Utah granted.

Utah Governed by Two Acts

Initially, the Supreme Court noted that workers’ compensation claims in Utah were governed by “two separate but related chapters of the Utah Labor Code”—the Workers’ Compensation Act and the Occupational Disease Act. Both acts provide mutually exclusive remedies. The Court stressed that The WCA provides no compensation for diseases and the ODA provides none for injuries covered by the WCA.

Narrow Exception for Intentional Injuries

The Court continued that case law recognized a narrow exception to this exclusive remedy arrangement for “injuries caused by an intentional tort” [quoting Helf v. Chevron U.S.A., Inc. (Helf II), 2015 UT 81, ¶ 22, 361 P.3d 63]. Utah courts have only applied the intentional torts exception to claims governed by the WCA; the doctrine had never been extended to occupational disease claims.

Plaintiff’s Claim Might Fall Within the ODA

Continuing with its discussion, the Court said the plaintiff had sued Barnes under this intentional injury exception, claiming that the WCA’s exclusive remedy did not bar his claim because Barnes intentionally caused the plaintiff’s lead poisoning. In response, Barnes argued that the evidence in the plaintiff’s summary judgment opposition did not demonstrate sufficiently that his supervisors were “virtually certain” he would contract lead poisoning. Barnes also claimed the district court erred by failing to recognize this and by denying its motion for summary judgment. Throwing a new wrinkle into the litigation, however, the Court said the arguments strikes the Court as “premature because we are not convinced that [the plaintiff’s] lead poisoning falls under the WCA [Opinion, ¶15]. There was a question, said the Court, as to whether the plaintiff’s lead poisoning claim fell under the ODA, and if so, whether it qualified for the intentional injury exception.

Prior Utah Has Treated Lead Poisoning as Disease

Citing two earlier decisions, the Court said that in the past, Utah had “frequently recognized” lead poisoning as an occupational disease [Opinion, ¶ 16]. This made the Court question whether the ODA, not the WCA, was the plaintiff’s exclusive remedy. But since the parties had not briefed the issue, the Court declined to make the determination at this time. The Court added:

Our concern is this: if we evaluate [the plaintiff’s] claim without addressing whether his lead poisoning is an occupational disease, future litigants might construe our decision as implicitly extending the intentional-injury exception to claims governed by the ODA. And we hesitate to expand this narrow exception, especially without the benefit of full briefing on the subject. So we remand this case and instruct the district court to determine whether [the plaintiff’s] lead poisoning is an accidental injury or an occupational disease. And if it finds that [the plaintiff’s] condition is an occupational disease, we instruct it to further determine whether the intentional-injury exception should extend to his claim [Opinion, ¶ 20].

The Court remanded the case to the district court to determine in the first instance whether the plaintiff’s lead poisoning was actually an occupational disease and, if so, whether the intentional injury exception should be extended to cover his claim.