Court Asks if Exclusive Remedy Exception Applies to ‘Intentional’ Lead Poisoning

Utah workers are allowed to sue their employers for an injury caused by their employer’s intentional act. That exception to the exclusive remedy of the state Workers’ Compensation Act was carved out by a state supreme court decision in 1975.

But if a worker contracts an occupational disease, does the same exception apply?

The Utah Supreme Court ruled Thursday that this question must be answered before a lawsuit filed against a bullet manufacturer by a worker disabled by lead poisoning may proceed any further.

The high court directed the trial court to reconsider its decision to deny a summary judgment motion by Barnes Bullets and rule on whether worker Layne Kay actually suffered an occupational disease, and if so, whether the intentional acts exception also applies to claims under the Occupational Diseases Act.

“We acknowledge that this is a daunting assignment,” the Supreme Court’s 5-0 decision says.

Kay’s attorney, Justin Heideman, said Thursday that the decision defies logic. He said he will file a motion for reconsideration.

“This is judicial activism at its absolute friggin’ worse,” Heideman said. “There should be judges all around the United States hanging their heads in shame.”

Kay worked for Barnes Bullets in Mona, Utah from 2008 until he resigned in 2016, incapacitated by lead poisoning . He filed a workers’ compensation claim and was awarded $337,500 by the Labor Commission.

Kay and his wife, Emily, also filed a lawsuit, something normally not allowed. The civil complaint alleges that the employer required him to melt lead in a pot outside the plant with no respirator to protect him.

Heideman said Barnes Bullets required Kay to melt 40,000 pounds of scrap lead, working eight to nine hours a day for five or six days a week over a nine-month period. He said the amount was unprecedented. He said while other workers melted small batches of scrap lead from time to time, none were exposed as much as Kay.

Heideman said the company clearly intended to expose his client to harm. Barnes Bullets had an air monitor that showed unsafe levels of particulates each day, but nobody told Kay he was in danger, he said. Even though the company’s policy and procedures manual required a respirator to be worn when melting led, one of the managers testified that he didn’t think exposure to lead was a hazard, he said.

Heideman said Kay is “extraordinarily impaired” from lead poisoning and will die within two years.

Barnes Bullets sought dismissal of Kay’s lawsuit, arguing that he had not pleaded facts showing that it was “virtually certain” he would contract lead poisoning, which is the standard set by case law for the intentional acts exception. Fourth District Court Judge Anthony L. Howell in Nephi denied the motion to dismiss, prompting the company’s appeal.

The Supreme Court said in its opinion that it is reluctant to rule on the motion because the trial court did not address the question of whether Kay actually suffered an occupational disease, rather than an injury compensable under the Workers’ Compensation Act.

The opinion says Utah courts have treated lead poisoning as an occupational disease since even before the Occupational Disease Act was passed into law in 1941. Of course, lead poisoning can also be treated as an accidental injury, depending on the facts of the case.

While the Supreme Court ruled in 1975, in Bryan v. Utah International, that the intentional acts can be exempted from exclusive remedy for claims under the Workers’ Compensation Act, it has never decided whether the same exemption should apply to Occupational Disease Act claims.

The court said it is concerned that if it doesn’t address whether Kay suffered an occupational disease, future litigants may construe the decision as “implicitly extending the intentional-injury exception to claims governed by the (Occupational Disease Act).”

Heideman said he infers by the court’s decision that it intends to extend the intentional act exception to occupational diseases. The court would have simply reversed the district court’s ruling on the motion to dismiss if it wanted to “kill the case,” he said.

But the ruling creates a delay that may prevent his client from seeing the case come to an end.

“He’s going to die from this,” Heideman said. “It’s not going to happen tomorrow, but it’s going to happen in the next couple of years.”

Heideman said the ruling also puts the district court in an impossible position. If the employer considered the injury to be an occupational disease, it was required to identify that concern as an “affirmative defense.” It didn’t.

“It’s an impossible decision,” Heideman said. “You are asking a judge to consider an argument that was never raised.”

Attorneys for Barnes Bullets did not respond to a request for comment.