California Court of Appeal Aug 20, 2014 No. D063578Unpublished
Filed 8/20/14 Sinclair v. Praxair CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JEFF SINCLAIR et al., D063578
Plaintiffs and Appellants,
v. (Super. Ct. No. 37-2011-00089909- CU-FR-CTL) PRAXAIR, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County, John S.
Meyer, Judge. Affirmed.
Ritter & Associates, Dwight Ritter and Karen Albence for Plaintiffs and
Appellants.
Larson, Garrick & Lightfoot, Arnold D. Larson, Mary P. Lightfoot; Faegre Baker
Daniels and Michael Kanute for Defendant and Respondent.
INTRODUCTION
Jeff Sinclair (Sinclair) and his wife (collectively Sinclairs) appeal from a summary
judgment in favor of Sinclair's former employer, Praxair, Inc. (Praxair). They contend
Praxair was not entitled to summary judgment because there are triable issues of material
fact as to whether their tort claims fall within the fraudulent concealment exception to the
workers' compensation exclusivity rule. We disagree and affirm the judgment.
Sinclair worked for Praxair's predecessor and Praxair collecting and testing soil,
water, and air samples from potentially contaminated sites. During his employment, he
underwent annual physical examinations.1 In 1993 his physical examination report
showed he had abnormal lab results and stated he should follow up with his own
physician. It also stated, "[n]o renal exposures."2
In 1994, his examination showed he had high blood urea nitrogen and creatinine
levels. As in 1993, the examiner noted on the results "[n]o renal exposures" and
indicated Sinclair must follow up with his own doctor.
1 The record includes information for the examinations conducted in 1993, 1994, 1997, 1999, 2002, and 2009. It does not include information for the examinations conducted in the intervening years.
2 It is unclear from the record whether this statement meant he had no renal exposures or he should have no renal exposures.
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In 1997, his examination results again showed he had high blood urea nitrogen and
creatinine levels and the examiner noted he should follow up with his own physician.
Laboratory results from his 1999 examination contained a similar notation.
In 2002, his examination results showed yet again he had abnormal blood levels
and the examiner advised him to follow up with his own personal physician. The
examiner also recommended he be precluded from having any exposure to nephrotoxic
chemicals until his personal physician examined him.
Although Sinclair received copies of all of his annual examination results, he
never reviewed them and, therefore, never complied with the recommendation to follow
up with his personal physician. Nonetheless, his personal physician diagnosed him with
renal disease in 1994 and he admittedly knew of the diagnosis at least since 1996. At the
time, his physician attributed his renal disease to gout.
In 2009, after another annual examination, he was diagnosed with stage IV renal
failure and became disabled from work. A worker's compensation qualified medical
examiner determined 85 percent of the cause of his renal disease was from work-related
chemical exposures.
The Sinclairs subsequently sued Praxair for intentional conduct violating public
policy, intentional infliction of emotional distress, and loss of consortium.3 Their
complaint principally alleged Praxair intentionally concealed that workplace chemical
exposures both caused and aggravated Sinclair's renal disease.
3 Sinclair also filed a workers' compensation claim against Praxair, which has been resolved. 3
Praxair moved for summary judgment, arguing the Sinclairs could not establish
their claims fell within the fraudulent concealment exception to the workers'
compensation exclusivity doctrine because, among other reasons, Sinclair knew he had
renal disease. The superior court agreed and granted summary judgment to Praxair.
DISCUSSION
I
"On appeal after a motion for summary judgment has been granted, we review the
record de novo, considering all the evidence set forth in the moving and opposition
papers except that to which objections have been made and sustained. [Citation.] Under
California's traditional rules, we determine with respect to each cause of action whether
the defendant seeking summary judgment has conclusively negated a necessary element
of the plaintiff's case, or has demonstrated that under no hypothesis is there a material
issue of fact that requires the process of trial, such that the defendant is entitled to
judgment as a matter of law." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.)
II
"An employee injured during the course of employment is generally limited to
remedies available under the Workers' Compensation Act. [Citations.] [Labor Code
section] 3602, subdivision (b)(2) provides a narrow exception to this exclusivity rule and
allows a civil suit '[w]here the employee's injury is aggravated by the employer's
fraudulent concealment of the existence of the injury and its connection with the
employment, in which case the employer's liability shall be limited to those damages
proximately caused by the aggravation . . . .' This provision was enacted in 1982 and
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codifies the common law fraudulent concealment exception that was enunciated by our
Supreme Court in Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d
465.
"Three conditions are necessary for the fraudulent concealment exception to apply:
(1) the employer must have concealed 'the existence of the injury'; (2) the employer must
have concealed the connection between the injury and the employment; and (3) the injury
must have been aggravated following the concealment. [Citation.] If any one of these
conditions is lacking, the exception does not apply and the employer is entitled to
judgment in its favor." (Jensen v. Amgen, Inc. (2003) 105 Cal.App.4th 1322, 1325.)
Here, the undisputed evidence shows Sinclair was diagnosed with renal disease in
1994 and he knew of the diagnosis as early as 1996. Consequently, the Sinclairs cannot
establish the first element of the fraudulent concealment exception, that Praxair concealed
the existence of his injury from him.
The Sinclairs' complaint and arguments focus on the second and third elements of
the fraudulent concealment exception, that Praxair concealed Sinclair's injury's
employment connection and aggravation. However, even assuming the Sinclairs have
raised triable issues of material fact on these points, this is not sufficient to sustain their
burden on summary judgment because Praxair has conclusively negated the first element
of the exception.
Moreover, the Sinclairs' reliance on Foster v. Xerox Corp. (1985) 40 Cal.3d 306
and Palestini v. General Dynamics Corp. (2002) 99 Cal.App.4th 80 is misplaced. These
cases are procedurally distinguishable as they deal with the requirements for adequately
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pleading the fraudulent concealment exception. (Foster v. Xerox Corp., supra, at p. 309;
Palestini v. General Dynamics Corp., supra, at p. 83.) They provide no guidance where,
as here, the undisputed evidence shows the Sinclairs cannot establish one of the three
elements of the exception. (Jensen v. Amgen, Inc., supra, 105 Cal.App.4th at p. 1327.)
Accordingly, we conclude the superior court properly granted summary judgment to
Praxair.
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
MCCONNELL, P. J.
WE CONCUR:
BENKE, J.
MCDONALD, J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the plaintiffs failed to satisfy the fraudulent concealment exception to the workers' compensation exclusivity rule because the undisputed evidence showed the employee was aware of his renal disease diagnosis years prior to his disability, thereby negating the requirement that the employer concealed the existence of the injury.
Issues
Whether the plaintiffs established the three necessary conditions for the fraudulent concealment exception to the workers' compensation exclusivity rule.
Whether the employer successfully negated a necessary element of the fraudulent concealment exception to warrant summary judgment.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the Sinclairs cannot establish the first element of the fraudulent concealment exception, that Praxair concealed the existence of his injury from him.”
“If any one of these conditions is lacking, the exception does not apply and the employer is entitled to judgment in its favor.”