Opinion
Suit was brought seeking to impose liability on defendant company for asbestos-related diseases, mesothelioma and asbestosis, contracted by plaintiff's decedent as a result of his residency near defendant's asbestos-using plant, and also seeking to impose liability on codefendant Canadian company for distributing asbestos to defendant. On motion of plaintiff to file an amended complaint, the District Court, Pollak, J., held that the plaintiff, seeking to file an amended complaint adding a claim against defendant for intentionally, wilfully, and recklessly allowing plaintiff's decedent, while in defendant's employ, to be exposed to asbestos, did not allege a deliberate intent to injure or facts from which such an intent might be reasonably inferred, and therefore the proposed additional claim was barred by the New Jersey Workmen's Compensation Act.
Motion denied.
See also, D.C., 83 F.R.D. 32.
Edward Rubin, Hamburg, Rubin, Mullin & Maxwell, Lansdale, Pa., for plaintiff.
Francis E. Marshall, Marshall, Dennehey & Warner, Thomas C. DeLorenzo, Philadelphia, Pa., for defendants.
POLLAK, District Judge.
In 1977, Cynthia Petruska and her late husband, John R. Petruska, both citizens of Pennsylvania, brought this diversity action against Johns-Manville Products Corporation (hereinafter " Products" ), a Delaware corporation, and Canadian Johns-Manville Asbestos, Ltd. (hereinafter " Canadian" ), a Quebec corporation. Up to now, the litigation has proceeded on two theories of liability. First, the complaint seeks to impose liability on defendant Products for two asbestos-related diseases mesothelioma and asbestosis allegedly contracted by John Petruska as a result of living in the vicinity of Products' plant in Manville, New Jersey, from 1942 to 1960, during which time he was employed by Products. Second, the complaint seeks to impose liability on defendant Canadian for distributing to defendant Products asbestos " which (it) knew or . . . should have known (was) deleterious, poisonous and highly harmful to Plaintiff's body, lungs, respiratory system, skin, and health."
John Petruska died in 1978 and this litigation is now prosecuted by his wife, as executrix of his estate, and in her own behalf for the loss of companionship and consortium. She has now moved to file an amended complaint, adding a further claim against Products which would read as follows:
32. During the course of Plaintiff's decedent's employment with Defendant, as previously set forth herein, Defendant intentionally, willfully and recklessly allowed Plaintiff's decedent to be exposed to asbestos and asbestos fiber, which exposure directly and proximately caused him to develop illnesses known and designated as mesothelioma and asbestosis, which caused Plaintiff's decedent's illness, pain and suffering and eventually (sic) death as previously set forth.
33. The willfulness and intentional wrongdoing of the defendant in allowing Plaintiff's decedent to be exposed consisted of:
(a) Failing to warn Plaintiff's decedent of known health hazards of asbestos exposure. (b) Disregarding scientific and medical warnings of the health hazards associated with asbestos exposure.
Defendants argue that assertion of such a claim in this court is barred because the claim, if any, arose pursuant to the decedent's employment relationship with defendant Products and therefore falls within the exclusive province of the New Jersey Workmen's Compensation Act.
There seems to be no dispute that New Jersey law applies; as the state of the employment relationship, New Jersey would appear to have the most significant relationship to the matter in dispute. See Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796 (1964).
Section 34:15-8 of the New Jersey statutes provides that " (i)f an injury or death is compensable under this article (The Workmen's Compensation Act), a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong." While this statutory language seems to remove from the exclusivity of the Act only the intentional wrongs committed by co-workers, there is authority suggesting that an employee can maintain an action at law to recover for intentional wrongs committed by his employer. Seltzer v. Isaacson, 147 N.J.Super. 308, 371 A.2d 304 (1977). See also 2A Larson, The Law of Workmen's Compensation, s 68.10. However, the New Jersey Superior Court has given " intentional wrong" a narrow construction:
We think the Legislature intended the words " intentional wrong" in this context to have their commonly understood signification of deliberate intention. Compare 2 Larson, Workmen's Compensation Law, s 69.20, pp. 161-62, dealing with employer-misconduct statutes, where willful intent to cause injury is held to require a showing of deliberate intention rather than gross negligence.
Bryan v. Jeffers, 103 N.J.Super. 522, 248 A.2d 129 (1968). As Professor Larson has observed, " (e)ven if the alleged conduct goes beyond aggravated negligence, and includes such elements as knowingly permitting a hazardous work condition to exist, knowingly ordering 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." s 68.13, at 13-8 (citations omitted). See also Ulicny v. National Dust Collection Corporation, 391 F.Supp. 1265 (E.D.Pa.1975) (construing the Pennsylvania Workmen's Compensation Act to require intention to injure). This strict definition assures that the overwhelming majority of work-related accident claims will be referred to the Workmen's Compensation Bureau.
Since Cynthia Petruska does not allege a deliberate intention to injure or facts from which such a deliberate intention might be reasonably inferred, her proposed claim is barred by the New Jersey Workmen's Compensation Act, and her motion to amend the complaint is denied.