Authority now available regarding insurance coverage for civil action claims brought under Tooey v. AK Steel Corp. (Pa. 2013)

            In Pennsylvania, the Supreme Court generally enforces the exclusive remedy with an iron first. There is, indeed, no intentional tort exception.  Barber v. Pittsburgh Corning Corp., 555 A.2d 766 (Pa. 1989); Poyser v. Newman & Co., 522 A.2d 548 (Pa. 1987).

            Yet, under the landmark case Tooey v. AK Steel Corp., 81 A.3d 851 (Pa. 2013), of the Pennsylvania Supreme Court, an employee may sue his or her employer for diseases which manifest themselves outside the law’s 300-week statute of repose.

            A remarkable exception to the exclusive remedy hence exists.  

            One school of thought, since 2013, has posited that general liability policies (like the CGL) will cover the employer in such situations.

             When, in 2013, I first heard that assertion, I rejected it out of hand, and have remained of the view that no authority exists to commend it.  Virtually all liability policies (as far as I know) exclude bodily injury claims by employees against their employers.  The idea, after all, is that commercial liability policies are supposed to be coordinated, and that insurance for those claims is found under the Workers’ Compensation and Employers Liability Policy.  

            This position seems to have been vindicated.  A persuasive Pennsylvania federal district court case, filed on January 26, 2017, has ruled that a claim under Tooey was not covered by a general liability policy which included such a standard exclusion.  The court flatly held that the bodily injury exclusion for claims by the insured’s employees was applicable in the face of a Tooey claim.  (The plaintiff widow’s spouse had developed, and died from, mesothelioma, more than 300 weeks after his last exposure in the 1970’s, and was suing his former employer in tort.)   

            In the declaratory judgment case that so held, the court granted the carrier’s motion for summary judgment. National Fire Ins. Co. of Hartford v. Burns & Scalo, 2017 WL 372144 (E.D. Pa., filed Jan. 26, 2017).  The carrier had no liability to its general liability policy-insured.   

            As suggested above, presumably any such insurance coverage is found under Part 2 of the Workers’ Compensation and Employers Liability Policy. See generally Torrey-Greenberg, § 23:43. 

            That’s why employers purchase Part 2 coverage.  See Donald D. DeCarlo & Roger Thompson, Workers Compensation: The First Hundred Years, p.207 (American Society of Workers Compensation Professionals 2^nd ed. 2012) (noting, inter alia, that Part 2 features the following language: “the insurer promises to pay all sums that the insured legally must pay as damages because of the bodily injury to employees ….”). See generally David D. Thamann and Diana B. Reitz, Workers' Compensation Guide: Interpretation and Analysis, Chapter 3 (National Underwriter 2000).