Kay v. Barnes Bullets ( 2021 )

2021 UT 64IN THE
SUPREME COURT OF THE STATE OF UTAH
LAYNE KAY and EMILY KAY,
Appellees,
v.
BARNES BULLETS,
Appellant.
No. 20180821
Heard November 13, 2019
Filed November 4, 2021
On Appeal of Interlocutory Order
Fourth District Court, Nephi
The Honorable Anthony L. Howell
No. 150600010
Attorneys:
Justin D. Heideman, Christian D. Austin, Provo, for appellees
Brett N. Anderson, Scott R. Taylor, Salt Lake City, for appellant
CHIEF JUSTICE DURRANT authored the opinion of the Court, in which
ASSOCIATE CHIEF JUSTICE LEE, JUSTICE HIMONAS, JUSTICE PEARCE, and
JUSTICE PETERSEN joined.
CHIEF JUSTICE DURRANT, opinion of the Court:
Introduction
¶1 Layne Kay contracted lead poisoning while working at
Barnes Bullets (Barnes). The Workers‘ Compensation Act (WCA) and
the Occupational Disease Act (ODA) normally bar employees like
Mr. Kay from suing their employers over work-related ailments. But
a narrow exception to the WCA lets them sue over injuries caused by
an employer‘s intentional act. Mr. Kay sued Barnes under this
exception, arguing that Barnes intentionally poisoned him by making
him melt a large amount of lead without a respirator. Barnes moved
for summary judgment, asking the district court to rule that the
KAY v. BARNES BULLETS
Opinion of the Court
WCA bars Mr. Kay‘s claim because Mr. Kay did not present
sufficient evidence that Barnes acted intentionally. The district court
denied this motion, a decision Barnes asks us to reverse on this
interlocutory appeal.
¶2 Instead, we vacate the district court‘s decision and remand
with instructions to address a key issue lurking behind the scenes:
whether Mr. Kay‘s lead poisoning is actually an occupational disease,
governed exclusively by the ODA, and therefore potentially
ineligible for the WCA‘s intentional-injury exception. Although both
parties assume the WCA covers Mr. Kay‘s condition, Utah law has
frequently recognized lead poisoning as an occupational disease.
And because we have historically applied the intentional-injury
exception only to cases governed by the WCA, if Mr. Kay‘s lead
poisoning is an occupational disease, the ODA may bar his lawsuit.
So, to resolve this issue, we remand this case to the district court.
Background
¶3 Barnes is a bullet manufacturer located in Mona, Utah.
Layne Kay began working there in August 2008, starting in the
General Production Department where he prepped bullets for retail
sale. Mr. Kay was well liked by his co-workers but struggled with the
physical demands required for bullet production. In 2013, Barnes
transferred him to its Ammunition Department, and then to its
Shipping and Packaging Department, where he worked until his
resignation in January 2016.
¶4 One of Mr. Kay‘s duties in the General Production
Department 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. But in 2013, when
tests revealed that this process produced unsafe levels of airborne
lead, Barnes stopped melting and began purchasing lead wire for its
lead-core bullets.
¶5 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.
¶6 Barnes‘s employees melted lead ―as necessary‖ because of
the low demand for lead bullets. Due to this intermittent need,
Barnes did not assign the job to a specific employee. Instead,
supervisors, managers, and sometimes even the company‘s longtime
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owner stepped in to do the job. Despite this, Mr. Kay melted lead far
more often than his co-workers. Barnes‘s plant manager testified that
the average employee melted lead roughly three days per year. But
between November 2012 and May 2013, Barnes purchased over
40,000 pounds of scrap lead, the bulk of which it tasked Mr. Kay with
melting. It was during this period that Mr. Kay began suffering from
―respiratory distress, tremors and mood swings, chronic and
persistent cough, neurological difficulties, and chronic fatigue.‖
¶7 Although Barnes stopped melting lead in September 2013,
Mr. Kay nevertheless contracted severe lead poisoning that left him
permanently disabled. He continued to experience tremors, mood
swings, and chronic fatigue, and his lung health deteriorated to the
point where he now uses a ―rescue inhaler . . . after even the mildest
exertions.‖ He also suffers from ―profound impairments to his
memory and executive functions‖ that prevent him from
―perform[ing] even unskilled, entry level jobs.‖
¶8 Mr. Kay sued Barnes over these injuries in April 2015. The
parties stayed the litigation in November 2016 while Mr. Kay
pursued a workers‘ compensation claim with the Utah Labor
Commission. The parties resolved this proceeding in March 2018
after the Labor Commission awarded Mr. Kay $337,500.
¶9 Following the resolution of Mr. Kay‘s workers‘
compensation claim, the parties lifted their stay and Barnes filed for
summary judgment in this case. Barnes argued that the WCA‘s
exclusivity provision—which prevents tort suits against employers—
barred Mr. Kay‘s claim. Mr. Kay argued that the exclusivity
provision did not apply to his claim, because it fell under the
recognized intentional-injury exception. According to Mr. Kay,
because his supervisors knew melting lead was dangerous and
Barnes was not complying with certain safety regulations, the
company intentionally poisoned him.
¶10 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 Mr. Kay
melted an amount of lead unprecedented in the company‘s history.
Following this ruling, Barnes petitioned for an interlocutory appeal,
which we granted. We have jurisdiction pursuant to Utah Code
section 78A-3-102(3)(j).
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KAY v. BARNES BULLETS
Opinion of the Court
Standard of Review
¶11 Summary judgment is appropriate when ―there is no
genuine dispute as to any material fact and the moving party is
entitled to judgment as a matter of law.‖1 We review a district court‘s
denial of summary judgment de novo, affording its conclusions no
deference.2 And we view ―the facts and all reasonable inferences
drawn therefrom in the light most favorable to the nonmoving
party.‖3
Analysis
¶12 In Utah, workers‘ compensation claims are governed by
―two separate but related chapters of the Utah Labor Code‖—the
Workers‘ Compensation Act and the Occupational Disease Act. 4 The
WCA compensates employees for injury ―by accident arising out of
and in the course of the employee‘s employment.‖5 The ODA, ―in
contrast, provides compensation for ‗any disease or illness that arises
out of and in the course of employment and is medically caused or
aggravated by that employment.‘‖6 Importantly, the two acts provide
mutually exclusive remedies. The WCA ―specifically does not
provide compensation for ‗disease[s]‘‖7 and the ODA does not
compensate ―injuries covered by the WCA.‖8
¶13 Both statutes also make the workers‘ compensation system
an employee‘s exclusive remedy for injuries or diseases contracted
on the job. The WCA is a worker‘s ―exclusive remedy‖ for ―any
1 UTAH R. CIV. P. 56(a).
2 Graves v. N. E. Servs., Inc., 2015 UT 28, ¶ 17, 345 P.3d 619.
3 R & R Indus. Park, L.L.C. v. Utah Prop. & Cas. Ins. Guar. Ass’n,
2008 UT 80, ¶ 18, 199 P.3d 917 (citation omitted) (internal quotation
marks omitted).
4 Rueda v. Utah Labor Comm’n, 2017 UT 58, ¶ 26, 423 P.3d 1175(opinion of Himonas, J.).
5 UTAH CODE § 34A-2-401(1).
Rueda, 2017 UT 58, ¶ 79 (opinion of Durrant, C.J.) (quoting UTAH
6
CODE § 34A-2-103).
7 Id. (alteration in original) (quoting UTAH CODE § 34A-2-
102(1)(j)(ii)).
8 Id. (citing UTAH CODE § 34A-3-111).
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accident or injury‖ suffered in the course of employment,9 while the
ODA is the ―exclusive remedy‖ for ―diseases or injuries to health
sustained by a Utah employee.‖10 These exclusive remedy provisions
―relieve[] employers of any common law liability‖ for work-related
ailments.11 And in exchange for protecting employers from private
lawsuits, the WCA and the ODA allow employees to recover,
through an administrative proceeding conducted by the Utah Labor
Commission, for work-related diseases and injuries without showing
fault.12
¶14 Our case law recognizes a narrow exception to this
exclusive-remedy requirement for ―injuries caused by an intentional
tort.‖13 This exception lets an employee maintain a private lawsuit
against an employer when ―an agent of the employer intentionally
caused [his or her] injury.‖14 But we have only applied this exception
to claims governed by the WCA. We have never extended it to
occupational disease claims. For example, in Bryan v. Utah
International, where we first established this exception, the plaintiff‘s
co-worker hit him with a ―large cable.‖15 And in Mounteer v. Utah
Power & Light Co., the next case addressing this exception, the
plaintiff allegedly suffered from ―emotional distress‖ resulting in
―mental and physical‖ injuries.16 Finally, in our Helf v. Chevron
U.S.A., Inc. cases, the plaintiff developed a permanent seizure
9 UTAH CODE § 34A-2-105(1).
10 Id. § 34A-3-102(3).
11 Helf v. Chevron U.S.A., Inc. (Helf I), 2009 UT 11, ¶ 16, 203 P.3d
962.
12 Id.
13 Helf v. Chevron U.S.A., Inc. (Helf II), 2015 UT 81, ¶ 22, 361 P.3d
63.
Id. ¶ 23. In such cases, an employee may pursue both a private
14
lawsuit and a workers‘ compensation proceeding. Id. ¶ 86. But if the
employee ―recovers civilly against his employer,‖ he or she ―may no
longer receive workers‘ compensation benefits and must reimburse
the workers‘ compensation carrier to the extent the carrier paid
workers‘ compensation benefits.‖ Id. (citation omitted) (internal
quotation marks omitted).
15 533 P.2d 892, 892 (Utah 1975).
16 823 P.2d 1055, 1058 (Utah 1991).
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KAY v. BARNES BULLETS
Opinion of the Court
disorder following exposure to a cloud of ―toxic gases.‖17 The WCA,
not the ODA, governed each of these cases.
¶15 Mr. Kay sued Barnes under this intentional-injury exception,
claiming that the WCA‘s exclusive remedy does not bar his claim
because Barnes intentionally caused his lead poisoning. In response,
Barnes argued that the evidence in Mr. Kay‘s summary judgment
opposition did not demonstrate sufficiently that his supervisors were
―virtually certain‖ he would contract lead poisoning.18 And Barnes
claims the district court erred by failing to recognize this and by
denying Barnes‘s motion for summary judgment. But addressing
these arguments strikes us as premature because we are not
convinced that Mr. Kay‘s lead poisoning falls under the WCA.
¶16 There is a significant question as to whether Mr. Kay‘s lead
poisoning claim falls under the ODA, and, if so, whether it qualifies
for the intentional-injury exception. Both parties treat Mr. Kay‘s
condition as ―a result of an accident or injury sustained in the
workplace,‖ and thus covered by the WCA.19 Utah law, however, has
frequently recognized lead poisoning as an occupational disease.20
This past recognition leads us to question whether the ODA, not the
WCA, is Mr. Kay‘s exclusive remedy. But since the parties have not
briefed this issue, we decline to make this determination at this time.
¶17 This court first recognized lead poisoning as an occupational
disease in Young v. Salt Lake City, a 1939 case.21 There, we held that a
city employee who contracted lead poisoning after spray-painting
trucks without a protective mask could maintain a suit against his
employer because his condition was an occupational disease, not an
accidental injury.22 We reasoned that the employee‘s lead poisoning
17 Helf I, 2009 UT 11, ¶ 1; see also Helf II, 2015 UT 81, ¶ 17.
18 See Helf II, 2015 UT 81, ¶ 23 (explaining that, in order to prevail
under the intentional-injury exception, ―a worker must prove that an
agent of the employer . . . . ‗desired the consequences of his actions‘
or . . . acted with the knowledge that ‗the consequences were
virtually certain to result‘‖ (quoting Helf I, 2009 UT 11, ¶ 43)).
19Dale T. Smith & Sons v. Utah Lab. Comm’n, 218 P.3d 580, 581
(Utah 2009).
20 See infra ¶¶ 17–18.
21 90 P.2d 174 (Utah 1939).
22 Id. at 177–78.
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was a ―disease incident to the occupation of a painter,‖ and the city‘s
―failure to give [the employee] a mask, whether deliberate or through
carelessness, was not accidental.‖23 And we noted that ―[l]ead
poisoning which is gradual and cumulative over [a] long period of
time is not [an] ‗accidental injury‘ or disability within [the] meaning
of [the] compensation statute.‖24
¶18 Two years later, in 1941, the legislature enacted the
Occupational Disease Act, which listed ―[p]oisoning by lead or its
compounds‖ as one of twenty-seven specifically enumerated
diseases eligible for compensation.25 Lead poisoning remained on
this list for the next fifty years, until 1991, when the legislature
removed the enumerated list and broadened the ODA to cover ―any
disease or illness which arises out of and in the course of
employment.‖26 So during this fifty-year period, Utah law expressly
recognized lead poisoning as an occupational disease.
¶19 But the fact that Utah law has frequently recognized lead
poisoning as an occupational disease does not necessarily mean that,
depending on the facts of a particular case, it could not instead
constitute an accidental injury. It is entirely possible that Mr. Kay‘s
claim properly falls under the WCA. Indeed, our divided opinion in
Rueda v. Utah Labor Commission demonstrates that the classification of
a workplace ailment as an accidental injury or an occupational
disease is a complicated question.27 But it is a question that must be
addressed in this case given that we have never extended the
intentional-injury exception to occupational disease claims.
¶20 Our concern is this: if we evaluate Mr. Kay‘s claim without
addressing whether his lead poisoning is an occupational disease,
future litigants might construe our decision as implicitly extending
23 Id. at 176–77.
24 Id. at 176 (citation omitted).
25 1941 Utah Laws 53, sec. 28.
26 1991 Utah Laws ch. 136, sec. 20; UTAH CODE § 35-2-107 (1991).
272017 UT 58. In Rueda, this court was ―[l]amentably‖ divided on
how to classify work-related ailments as either accidental injuries or
occupational diseases in light of the ODA‘s 1991 amendments. Id. ¶ 1(opinion of Himonas, J.). This division produced a ―splintered
opinion‖ with no majority, and in which the Labor Commission‘s
ruling remained effective. Id.
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Opinion of the Court
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 Mr. Kay‘s lead
poisoning is an accidental injury or an occupational disease. And if it
finds that Mr. Kay‘s condition is an occupational disease, we instruct
it to further determine whether the intentional-injury exception
should extend to his claim.28
¶21 Finally, in remanding this case, we recognize that the Utah
Labor Commission has already adjudicated Mr. Kay‘s claim as an
accidental injury under the WCA. So the district court should also
determine what, if any, deference it owes to the Commission‘s
determination.
¶22 We acknowledge that this is a daunting assignment. Our
split opinions in Rueda complicate the fact-intensive task of
distinguishing between accidental injuries and occupational diseases.
And the question of whether to extend the intentional-injury
exception to occupational disease claims is an open one. But we
nevertheless remand this case because we believe the district court
provides the best forum for resolving these potentially fact-heavy
issues. And if these important issues come before us again after the
district court‘s ruling, this approach will bring them to us in a
posture where we can address them with the benefit of the district
court‘s analysis and full briefing from the parties.
¶23 In sum, we have yet to extend the intentional-injury
exception to occupational disease claims. And without the benefit of
briefing on the subject, we decline to do so here. Instead, to ensure
future litigants do not read this decision as an implicit extension of
the intentional-injury exception to occupational diseases, we remand
this case to the district court to determine whether Mr. Kay‘s lead
poisoning is properly classified as an occupational disease. If so, we
further instruct the court to determine whether the intentional-injury
exception should be extended to cover Mr. Kay‘s claim. But if the
court determines that the WCA covers Mr. Kay‘s lead poisoning, we
instruct it to reevaluate Barnes‘s summary-judgment request in light
28 In so doing, we encourage the district court to keep in mind
that ―[w]hen faced with questions of first-impression, trial judges
should address them head-on‖ and ―not reserve judgment in a
manner that leaves the issues for resolution on appeal in the first
instance.‖ Paxman v. King, 2019 UT 37, ¶ 17, 448 P.3d 1199.
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of the clarifications to the intentional-injury exception we announce
in Christiansen v. Harrison Western Construction Corp.29
Conclusion
¶24 Utah law has frequently recognized lead poisoning as an
occupational disease. This recognition raises a significant question as
to whether the Occupational Disease Act, not the Workers‘
Compensation Act, covers Mr. Kay‘s claim, and whether he can avail
himself of the intentional-injury exception. We therefore remand this
case so the district court can determine in the first instance whether
Mr. Kay‘s lead poisoning is actually an occupational disease and, if it
is, whether the intentional-injury exception should be extended to
cover his claim.
29 2021 UT __. We also note that today‘s holding simply clarifies
that the intentional-injury exception currently does not extend to the
ODA. We are open to requests from future litigants to expand the
exception to ODA claims. And at that time we will address the issue
squarely with the benefit of full briefing.
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