KOFRON v. AMOCO CHEMICALS CORP.
441 A.2d 226 (1982)
Lewis KOFRON, et al., Plaintiffs Below, Appellants,
v.
AMOCO CHEMICALS CORPORATION, et al., Defendants Below, Appellees.
Earl R. NUTT, et al., Plaintiffs Below, Appellants,
v.
E. I. duPONT deNEMOURS & CO., INC., et al., Defendants Below, Appellees.
Supreme Court of Delaware.
Submitted April 20, 1981.*
Decided January 6, 1982.
Robert Jacobs (argued), of Bader, Dorsey & Kreshtool, Wilmington, for Kofron, et al., and Nutt, et al., plaintiffs below, appellants.
Howard M. Berg (argued), of Berg, Heckler & Cattie, Wilmington, for Amoco Chemicals Corp., et al., defendants below, appellees.
Thomas L. Morrissey (argued), of Carpenter, Bennett & Morrissey, Newark, N. J., for E. I. duPont deNemours and Co., Inc., et al., defendants below, appellees.
Before McNEILLY and HORSEY, JJ., and BROWN, Vice-Chancellor.
We here consider two appeals from decisions of the Superior Court which require us to determine the scope of coverage of the Delaware Workmen's Compensation Law. In both cases plaintiffs instituted common law causes of action based, respectively, on claims of gross negligence and intentional tort against defendants, their former or present employers, and a number of other corporations, engaged in the manufacturing of asbestos. In this opinion, however, we are concerned only with the allegations made against Amoco and duPont. The Superior Court granted defendants' motions to dismiss the claims pursuant to Superior Court Civil Rule 12(b)(6) for failure to state claims upon which relief could be granted. Plaintiffs appeal from these dismissals.
Because of the preliminary stage at which dismissal occurred in these cases, the only factual records before this Court are the complaints1 filed by plaintiffs. In judging the merits of a motion to dismiss for failure to state a claim, all well-pleaded facts in the complaint are assumed to be true, Laventhol, Krekstein, Horwath & Horwath v. Tuckman, Del.Supr., 372 A.2d 168 (1976), and, as the Trial Court noted, a complaint will not be dismissed unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof. Diamond State Tel. Co. v. University of Delaware, Del.Supr., 269 A.2d 52 (1970). Thus, the
"facts" set out below are merely the allegations found in the respective complaints and the reasonable inferences which may be drawn therefrom. Certain basic factual similarities shared by these two cases should be highlighted before proceeding to a consideration of the particular allegations found in the two complaints. Plaintiffs are or were industrial workers who contracted certain diseases while in the employ of the defendants, chemical manufacturers with industrial plants in Delaware. The plaintiffs in Kofron worked at defendant Amoco Chemical Company's (Amoco) plant in New Castle. The plaintiffs in Nutt worked at defendant E.I. duPont deNemours & Company's (duPont) plant in Newport. The alleged origin of the diseases contracted by plaintiffs is overexposure to excessive levels of asbestos found in the working environments at these two plants.
The particular facts alleged in Kofron are as follows. Plaintiffs are or were at all pertinent times employed by Amoco at the New Castle plant and, over a lengthy period of time, were exposed to asbestos fibers in extremely dangerous concentrations. As a direct result of such exposure, plaintiffs now suffer from various stages of asbestosis, lung cancer and/or other pulmonary diseases. At all material times, Amoco, its predecessor in title, and its parent corporations were aware of the dangerous conditions at the New Castle plant and were in a position to rectify the problems, but failed to correct the dangers and failed to warn plaintiffs of the dangers to their health from the excessive levels of asbestos at the plant. Plaintiffs allege that these acts and omissions constitute negligence and gross negligence by Amoco and proximately caused plaintiffs' diseases. Moreover, plaintiffs aver that as employees they were within the class of persons to whom Amoco owed a duty to warn of the known asbestos-related dangers.
Several specific acts or omissions by Amoco are also alleged in the complaint. Plaintiffs claim that at all material times Amoco knew of the high levels of asbestos fibers and dust at the plant. Further, plaintiffs allege that Amoco possessed medical and scientific data and other information which clearly indicated that asbestos and asbestos products were hazardous to plaintiffs' health and safety, given plaintiffs' excessive exposure to such materials during the course of their work. Despite such knowledge, Amoco and other defendants purportedly engaged in a course of conduct (characterized as a conspiracy) intended to deceive plaintiffs and others similarly situated to their injury and to the advantage of defendants. In this regard, plaintiffs aver that Amoco:
(1) asserted to plaintiffs that it was safe for plaintiffs to work in close proximity to the asbestos materials, knowing this to be untrue;
* Although this case was originally submitted to the Court for consideration on this date, the proceedings were temporarily delayed due to disqualifications by Justices McNeilly and Horsey. Counsel by and on behalf of all parties to this proceeding stipulated that the reasons for the disqualifications were immaterial and agreed to the remittal of the disqualifications. Remittal of the disqualifications became effective on June 9, 1981.
1. In both cases the defense motions were directed to the respective plaintiffs' third amended complaint. Therefore, we focus, as did the Court below, on the allegations found therein.
2. For the legislative history of and statutory provisions related to 19 Del.C. § 2304, see the Appendix following this opinion.
3. Even if plaintiffs were operating under one of these statutes and sought to bring a common law action based on an intentional tort theory, plaintiffs' claim would require dismissal there because, under the weight of authority, their allegations are insufficient to state a common law claim of intentional tort and, therefore, fit within the provisions of the statute. See Great Western Sugar Co. v. District Ct. of Mont., Mont.Supr., 610 P.2d 717 (1980); 2A Larson, supra, § 68.13, at 8-9.