Emotional Distress Claim Viable Despite Exclusive Remedy

Friday, October 29, 2010 | 0

By Tred Eyerly
Damon Key Leong Kupchak Hastert
 
Today's post departs slightly from insurance coverage matters, but is related to a prior post discussing the pursuit of intentional torts against insurers administering claims under the Longshore Harbor and Workers' Compensation Act ("LHWCA").  The prior post described an article authored by my blogging colleague, Mark Murakami (http://www.hawaiioceanlaw.com), and me, noting that an exclusive remedy provision in the LHWCA has not prevented some courts from recognizing insureds' claims for intentional torts.

Consistent with this line of cases, the California Court of Appeal held that a claim for intentional infliction of emotional distress was not subject to the workers' compensation system.  See Blumenfeld v. Qualcomm, Inc., 2010 Cal. App. Unpub. LEXIS 7571 (Cal. Ct. App., Sept. 23, 2010).

The plaintiff filed a sexual harassment case, alleging a supervisor subjected her to unwelcome sexual comments, inappropriate touching, and battery.  The trial court granted Qualcomm's motion for summary judgment, determining the plaintiff failed to show the supervisor's conduct was unwelcome and that her claims were subject to the exclusive remedy of the workers' compensation system.

The Court of Appeal reversed, ruling that the plaintiff's evidence created a triable issue as to whether the supervisor's conduct was unwelcome.  Because her claim for harassment was viable, her cause of action for intentional infliction of emotional distress was not subject to the exclusivity provisions of the workers' compensation act.

WorkCompCentral subscribers may download the opinion by clicking the case title in the sidebar.
  
<i>Tred Eyerly is an attorney for the employer defense law firm of Damon Key Leong Kupchak Hastert in Honolulu. This column was reprinted with his permission from the Hawaii Insurance Law blog, at http://insurancelawhawaii.typepad.com/insurance_law_hawaii/</i>