Monday, March 5, 2012

ID NIED Case a Dull Two Edged Sword

Idaho's strict definition of injury for purposes of workers' compensation liability is a two edged sword.

Fortunately the employer in Bollinger v. Fall River Rural Electric Cooperative, Docket No. 38248, 2012 Opinion No. 36. Supreme Court of Idaho, filed March 1, 2012, found that the sword was dull on both sides.

Suzette Bollinger sued Fall River for breach of contract, retaliatory discharge, wrongful termination, and negligent infliction of emotional distress. Bollinger had started out at Fall River in 1988 as a cashier and receptionist, but was promoted into a number of better jobs over the years. In 2009, the employer terminated her without cause from her position as Safety & Loss/Facility Director.

Dating back to 2004, the employer had adopted several policies that its employees were "at-will employees" who could be terminated without cause. The most recent policy was called an "Employment-At-Will" policy, and was adopted in 2009 (before Bollinger's termination).

A trial court granted Fall River's motion for summary judgment, after concluding that Bollinger was an at-will employee.

The Idaho Supreme Court affirmed. In the high court's analysis of the claim for negligent infliction of emotional distress (NIED), the high court determined that the exclusive remedy of workers' compensation did NOT bar this claim.

"As an initial matter, the district court was correct that Bollinger's NIED claim is not preempted by the workers' compensation law," the court wrote. "The type of injury covered under workers' compensation is that 'caused by an accident, which results in violence to the physical structure of the body.' An accident is an 'unexpected, undesigned, and unlooked for mishap, or untoward event.' The injury Bollinger claims was not caused by violence to the body but rather emotional distress unrelated to any physical injury. As such, it is not the type of injury contemplated by the workers' compensation law. Further, although Bollinger seeks recovery under a negligence cause of action, her alleged injury was not caused by the type of 'accident' contemplated by Idaho Code. The conduct of Fall River — its discharge of Bollinger — was planned. As such, Bollinger's NIED claim is not preempted by the workers' compensation law."

However, the high court explained that Bollinger's failure to pinpoint a legal duty that was breached by her termination ultimately barred her NIED claim.

So while Bollinger was unsuccessful in prosecuting her NIED claim because there was no duty owed her by the employer in this situation - i.e. she was "at-will" and employer's will was not to employ her - the court is also saying that IF there was a duty such an injury would be outside of the exclusive remedy of work comp.

At some point in Idaho's legal future a case is going to come up where the employer finds that dull sword has been sharpened, and is going to wish that an NIED claim WAS covered by work comp.


VACATION NOTICE: I'm off to Hawaii. It's supposed to be for vacation. We'll see how well I do. But in case this vacation thing actually works this week's postings may be spotty. As in the Idaho situation above, time will tell.

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