SPECK v. UNION ELEC. CO.

PER CURIAM:

Plaintiffs appeal from an order dismissing without prejudice Count III of their amended petition against defendant Union Electric Company. We reverse and remand.

Plaintiffs Thomas Speck and Linda Walters are the children of Stephen Speck, now deceased. Stephen Speck originally filed suit against various companies that had supplied Union Electric with asbestos insulation products. After their father's death, plaintiffs filed a three-count amended petition against the original defendants and Union Electric, naming Union Electric as a defendant only in Count III. The first count reiterated claims against the insulation suppliers based on various products liability theories that Stephen Speck raised in his suit. Count I contained averments that those defendants had "sold, furnished and supplied" defective and unreasonably dangerous insulation products containing asbestos to Union Electric. It was further alleged that Stephen Speck was employed by Union Electric as a "helper in the steam department" from 1947 until March 1984, during which time he was exposed, through his employment, to asbestos from insulation covering pipes owned, operated, or maintained by Union Electric. Plaintiffs asserted that, as a direct result of this asbestos exposure, Stephen Speck contracted mesothelioma and "other related asbestos diseases afflicting his respiratory-cardiovascular system."

In Count II plaintiffs Thomas Speck and Linda Walters incorporated Count I by reference and alleged that Stephen Speck died on December 25, 1984, as a direct result of the mesothelioma he contracted due to the tortious conduct mentioned in Count I. They alleged that they were the only children of Stephen Speck, who was unmarried at the time of his death, and the proper parties to bring a wrongful death action under § 537.080, RSMo 1978.

In Count III plaintiffs set forth a wrongful death claim against Union Electric and incorporated by reference the first two counts. Plaintiffs alleged in Count III:

Plaintiffs also asserted that the alleged conduct of Union Electric was not an ordinary incident of Stephen Speck's work and, therefore, The Missouri Workers' Compensation Law, ch. 287, RSMo 1978, did not provide the exclusive remedy for their claim.

Union Electric filed a motion to dismiss Count III, asserting that plaintiffs' claim was barred because the workers' compensation statute provided their exclusive remedy. The court granted Union Electric's motion and dismissed Count III without prejudice and designated its order final for purposes of appeal pursuant to Rule 81.06.

We initially transferred this case to the supreme court for determination of the appealability of the order dismissing Count III. The supreme court held that the order of dismissal was appealable and remanded the case to us for resolution on the merits. Speck v. Union Electric Co., 731 S.W.2d 16 (Mo. banc 1987).

In plaintiffs' sole point on appeal they allege:

In dismissing Count III, the trial court apparently relied on § 287.120, RSMo 1978,1 and McCoy v. Liberty Foundry Co., 635 S.W.2d 60 (Mo.App.1982). In McCoy, the plaintiff contended that he contracted silicosis as a result of Liberty's intentional acts and that the injury was intended by Liberty. Noting that the plaintiff attempted to state a claim "under a narrow exception to [the] exclusivity provisions [of The Missouri Workers' Compensation Law], one that imposes common law tort liability on an employer for intentionally inflicting injury on an employee[,]" we examined the scope of that exception and quoted extensively from 2A A. Larson, The Law of Workmen's Compensation § 68 (1976) as follows:

McCoy, 635 S.W.2d at 62.

Relying principally on Larson, we held: "[F]or employer conduct to be actionable as a `nonaccidental' cause of injury, the employer must intentionally act with the specific purpose of thereby injuring the employee." Id. (emphasis added). We determined that the court did not err in dismissing plaintiff's petition and stated:

McCoy, 635 S.W.2d at 63. There are similarities between the case at bar and McCoy. Under the McCoy standard, plaintiffs have not stated a cause of action.

On appeal plaintiffs do not make a serious attempt to distinguish McCoy; rather, they attack the reasoning and soundness of that decision, contending that it conflicts with Harryman v. L & N Buick-Pontiac, Inc., 431 S.W.2d 193 (Mo. banc 1968), and cases from other jurisdictions. When we initially transferred this case, we anticipated that the supreme court would examine their complaints, especially the contention of a conflict between McCoy and Harryman; however, it declined to do so.

At the time of our opinion in McCoy, few cases involving asbestos-related injuries had been decided by appellate courts. McCoy itself, while involving an "occupational disease," did not address the growing problem of asbestos-induced injuries in the workplace. In McCoy, we reached our conclusion by relying on Larson's treatise without citing any cases that considered the definition of "intent." Since McCoy, there has emerged a body of cases addressing the issue with which we now are faced; most of those cases have been decided by the highest appellate courts of the respective states.

Plaintiffs correctly point out that some other jurisdictions that have considered the issue after McCoy have adopted less narrow definitions of the intent required to make an injury "non-accidental" and, therefore, cognizable despite the exclusivity provision of workers' compensation statutes. See, e.g., Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 501 A.2d 505 (1985); Jones v. VIP Development Co., 15 Ohio St.3d 90, 472 N.E.2d 1046 (1984); Neal v. Carey Canadian Mines, Ltd., 548 F.Supp. 357 (E.D.Penn.1982). Defendant, on the other hand, cites several cases from other jurisdictions which follow a "specific purpose" test purportedly like that of McCoy. See, e.g., Noonan v. Spring Creek Forest Products, Inc., 700 P.2d 623 (Mont.1985); Hildebrandt v. Whirlpool Corp., 364 N.W.2d 394 (Minn.1985); and Sanford v. Presto Manufacturing Co., 92 N.M. 746, 594 P.2d 1202 (1979).

We have carefully examined the cases arising since McCoy and are favorably impressed with Millison, 101 N.J. 161, 501 A.2d 505. The plaintiffs in that case "charge[d] the employer and [company] physicians with intentionally exposing the employees to asbestos in the workplace, deliberately concealing from employees the risks of exposure to asbestos, and fraudulently concealing specific medical information obtained during employee physical examinations...." 501 A.2d at 507. In a well-reasoned and balanced opinion, the New Jersey Supreme Court utilized Professor Keeton and the late Dean Prosser's "intent" analysis and the Restatement (Second) of Torts § 8A (1965) which the court paraphrased to state that "intent" means that the "actor desires to cause [the] consequences of his act or is substantially certain that such consequences will result from his action." 501 A.2d at 514 (emphasis added). The court adopted a "substantial certainty" standard by which to determine the intent necessary to satisfy the "intentional wrong" exception in the New Jersey workers' compensation act. Applying that standard, the court held that "although the employees are limited to workers' compensation benefits for any initial occupational-disease disabilities related to the hazards of their employment experience, the Compensation Act does not bar plaintiffs' cause of action for aggravation of those illnesses resulting from defendants' fraudulent concealment of already-discovered disabilities." Id. at 507.

We conclude that the "specific purpose" test as stated in McCoy varies little from the Millison "substantial certainty" test. We believe that when an employer acts intentionally and is substantially certain that injury to an employee will result, the employer has a specific purpose to inflict injury.

Applying the McCoy "specific purpose" test in conjunction with our interpretation that "specific purpose" embraces the "substantial certainty" formulation of Millison, plaintiffs' claim concerning Stephen Speck's initial illness remains barred by the workers' compensation statute. See Millison, 501 A.2d at 514-17[3-6]. However, we believe that plaintiffs' averments that defendant "did ... intentionally withhold information regarding the health of Stephen Speck" might form the basis for a cause of action and, in light of our interpretation of the McCoy "specific purpose" test, we reverse and remand to give plaintiffs an opportunity to replead.

Reversed and remanded.