Utah Bar Journal

In Helf, the court acknowledged that Utah’s Workers’ Compensation Act provides an exclusive remedy for employees seeking to recover for injuries incurred on the job due to the negligence of an employer or co-employee. See Helf, 2009 UT 11, ¶ 16. However, the court recognized a new exception to this general rule, as discussed below. The Helf case presents new practical issues for all attorneys involved in personal injury litigation. For plaintiffs’ attorneys: a new avenue for recovery. For the defense bar: a potential basis for corporate liability to be mindful of. And for in-house counsel: a point of discussion to be raised with employers and commercial insurance providers.

The Helf ruling changes Workers’ Compensation and personal injury practices, and practitioners should apprise themselves of the scope and impact of the ruling.

The General Prohibition on Suits Against Employers by Their Employees
Under the Provision, absent other malfeasance by an employer – such as the employer’s failure to carry Workers’ Compensation Insurance, see Utah Code Ann. § 34A-2-207 – employers generally enjoy insulation from suit by employees injured on the job. See id. § 34A-2-105(1) (2008).

The Purpose of the Exclusive Remedy Provision
The Provision offers a quid pro quo. See Helf, 2009 UT 11, ¶ 16 (citing Shattuck-Owen v. Snowbird Corp., 2000 UT 94, ¶ 19, 16 P.3d 555). It affords employees a “simple, adequate, and speedy remedy” for injuries sustained on the job, but bars negligence lawsuits against the employer or another employee. Id. ¶ 16 (citing Park Utah Consol. Mines Co. v. Indus. Comm’n, 84 Utah 481, 36 P.2d 979, 981 (1934)).

The Unfortunate Impact of the Provision
For the most part, the Provision has served its purpose – workers have received care for injuries suffered on the job. But sometimes the Provision causes employers to operate their businesses with a disregard for employee safety. I have seen many cases where an employee was seriously injured (nearly killed) on the job site because of the employer’s abject indifference. Though the employer did not act intentionally, the employer’s conduct was more egregious than simple negligence or gross negligence. After filing suit, the employer always moved to dismiss under the Provision. Helf may now preclude the previously expected result of a dismissal.

The fact pattern in Helf is tragic. At the time of her injury, Jenna Helf was working at Chevron’s Salt Lake City Refinery. See Helf v. Chevron, 2009 UT 11, ¶ 1, 203 P.3d 962. Ms. Helf arrived at work on January 28, 1999, for the evening shift. See id. ¶ 9. Earlier in the day, Chevron supervisors had witnessed the effect a new “open-air” refining process had on employees – it caused employees to fall ill, requiring that they be sent home. See id. ¶ 8. In spite of the indications, Ms. Helf “was not told about the earlier reaction, nor was she told about the hazardous conditions indicated by the plant alarms…or…[that] employees…were sent home due to illness….” Id. ¶ 9. Beyond failing to mention what had happened earlier, Ms. Helf was not told “that she would need respiratory protection for this job, despite the fact that her supervisors knew that injury was substantially certain to occur if she initiated the chemical reaction without respiratory protection.” Id. Ms. Helf followed her supervisor’s instructions, initiated the process, producing noxious gases that caused her to vomit and pass out. See id. ¶ 10. She eventually came to, stopped the process, and returned to the building, suffering from the exposure to high levels of toxic gases. See id. She was not provided with treatment or information about the chemicals she had been exposed to. See id. Following the incident, the Occupational Health and Safety Division of the Utah Labor Commission cited Chevron for the event. See id.

Following the incident, Ms. Helf filed suit against Chevron, alleging willful misconduct, intentional nonfeasance, negligent infliction of emotional distress, and intentional infliction of emotional distress. See id. ¶ 12. Chevron responded with a motion to dismiss, arguing that the Provision barred Ms. Helf’s claims. See id. ¶ 13. The district court granted Chevron’s motion. Id. Ms. Helf appealed the district court’s dismissal of Chevron. Id.

The Workers’ Compensation Act, including the Provision, is in place to promote industry in Utah. See id. ¶ 51 (citing Collier v. Wagner Castings Co., 408 N.E.2d 198, 203 (1980)). However, as noted by Justice Parrish in her opinion, “the legislature could not be presumed to have intended to permit an intentional tortfeasor to shift his liability to a fund paid for with premiums collected from innocent employers.” Id. ¶ 51. The unintended negative impact of the Provision has been put in check by the Helf decision, but only to the extent that: (1) plaintiff and Workers’ Compensation practitioners effectively pursue Helf claims to keep the workforce safe and to remind employers of their responsibilities to employees; (2) the defense bar passes the word along to clients of the new standard; and (3) in-house counsel is ever vigilant of employer’s safety practices. It’s no longer an option for employers to run amok, disregarding the health and safety of employees, only to hide behind the Provision – and rightfully so.

Helf v. Chevron: An Exception to the Provision
The Helf opinion legitimized an important exception to the exclusive remedy provision: the “intentional injury” exception (Exception). Although an exception for an employer’s intentional torts existed before Helf, the Exception Helf recognized reaches – despite its name – beyond an employer’s or a co-employee’s intentional torts. The Exception reaches acts that indicate that the employer “know[s] or expect[s] that a specific employee will be injured doing a specific task.” Id. ¶ 43. Before arriving at its holding, the Helf court discussed the development of the intentional injury exception in Utah cases. See id. ¶¶ 21-24.

Bryan v. Utah International, 533 P.2d 892 (Utah 1975), allowed suit for the intentional tort of an employee’s supervisor, in spite of the Provision. See id. at 894; see also Helf, 2009 UT 11, ¶ 21.

In Mounteer v. Utah Power & Light, 823 P.2d 1055 (Utah 1991), the court upheld the dismissal of an employee’s claim for damages due to the lack of evidence that the employer “directed or intended” Mounteer’s co-employee’s injurious act. See id. at 1058; see also Helf v. Chevron, 2009 UT 11, ¶ 22, 203 P.3d 962.

Lantz v. National Semiconductor Corp., 775 P.2d 937 (Utah Ct. App. 1989), provided a similar set of facts to the Helf facts, though there were no allegations that the chemical spill was “expected or intentional.” Id. at 938. The Lantz plaintiff only alleged that injury was “substantially certain” to result. See Helf, 2009 UT 11, ¶ 23. Such allegations were insufficient to trigger the intentional injury exception, and the court of appeals deemed the facts subject to the exclusive remedy provision. See Lantz, 775 P.2d at 939-40 (quoting Hildebrandt v. Whirlpool Corp., 364 N.W.2d 394, 396 (Minn. 1985)); see also Helf, 2009 UT 11, ¶ 23.

Helf expands on the above string of cases addressing the Provision. In addition to discussing Bryan, Mounteer, and Lantz, Justice Parrish’s opinion touches upon a number of cases from sister jurisdictions, eventually arriving at the following holding:

We therefore hold that the “intent to injure” standard requires a specific mental state in which the actor knew or expected that injury would be the consequence of his action. To demonstrate intent, a plaintiff may show that the actor desired the consequences of his actions, or that the actor believed the consequences were virtually certain to result. But a plaintiff may not demonstrate intent by showing merely that some injury was substantially certain to occur at some time. For a workplace injury to qualify as an intentional injury under the Act, the employer or supervisor must know or expect that the assigned task will injure the particular employee that undertakes it. In other words, the employer must know or expect that a specific employee will be injured doing a specific task.

Helf, 2009 UT 11, ¶ 43.

While the holding stops short of providing a form for proper Helf pleadings, it goes a long way in that direction. In my time spent drafting Helf complaints and crafting successful arguments responding to motions to dismiss, I have always relied on the holding in Helf, steering clear of the temptation to throw in “knew or should have known.” Instead, I always pled the facts in my clients’ cases that satisfied the standard adopted in Helf – that the actor knew or expected that injury would be the consequence of his action. See id.

The Helf inquiry is not complete once an intentional injury is established and pled. Upon finding that the Helf intentional injury standard is satisfied, an additional consideration is whether there is respondeat superior liability for an employee’s actions, insofar as the employee’s actions caused the injury. The Helf court discussed the issue, finding respondeat superior liability for the acts of Ms. Helf’s supervisors. See id. ¶¶ 47-49. As mentioned in the opinion, three elements must be fulfilled to subject a corporation to liability for the acts of its employee: (1) the employee’s conduct must “be of the general kind the employee is employed to perform,” (2) the conduct must “occur within the hours of the employee’s work and the ordinary spatial boundaries of the employment,” and (3) the conduct must “be motivated, at least in part, by the purpose of serving the employer’s interest.” Id. ¶ 48 (citing Clark v. Pangan, 2000 UT 37, ¶ 8, 998 P.2d 268).

Difficulties of Helf in Practice Today
Novelty
The first problem faced with Helf pleadings is the novelty of the decision and its conflict with longstanding thought patterns. The district court in Helf summarily dismissed Ms. Helf’s case. See id. ¶ 13. Other courts in Utah may be tempted to do the same. Few published opinions have addressed Helf since the opinion was handed down. It is currently a creature of the district courts. Elucidation of the doctrine for personal injury, Workers’ Compensation, and insurance practice depends on informed pleading, argument, and, when necessary, the appeal of Helf cases.

Helf Facts Can Easily be Overlooked
A Helf fact pattern brings to mind a Workers’ Compensation fact pattern if not for careful consideration of the Helf holding and the facts as applied. In addressing a workplace injury case, all attorneys in the game have their own related and overlapping concerns. Plaintiff practitioners need to be aware of Helf and mindful of how they plead a Helf case; the defense bar needs to be creative in its response, looking beyond the exclusive remedy to find further defenses; Workers’ Compensation practitioners need to be aware of the facts that may lend themselves to a Helf case; and in-house counsel needs to remind employers of the responsibility to employees and the ramifications of Helf.

Judgments – Who Pays Them
Commercial insurance companies are often disinclined to pay judgments for injuries incurred by employees while in the course and scope of their employment, often contracting out of responsibility for such injuries. Whether Utah courts would enforce insurance contract provisions that limit liability for Helf job site injuries remains unresolved. Oftentimes, commercial liability insurance contract language indicates something akin to “Any injury that is covered by Workers’ Compensation is not covered by this policy.”

For a plaintiff’s attorney, the problem with Helf claims is the need for a “deep pocket.” Should a plaintiff adequately prove a Helf case, winning a judgment, the battle is not yet over. Without a solvent corporation, there may be no recovery in light of customary commercial insurance clauses. For a defense practitioner, a viable Helf claim could bankrupt a corporation should the commercial insurance carrier hold fast to a policy exclusion for workplace injuries of employees.

Conclusion
Helf represents a change in tide for employee rights. The case serves to alleviate inequity that might otherwise result. It prevents employers from running roughshod over employee rights. It tempers statutory language that might allow employer transgressions without repercussion. Now it’s up to practitioners to ensure that the Helf standard serves its purpose – bettering the lives of all that live and work in Utah.