EVANS, Acting P. J.
I respectfully dissent.
I view the factual treatment of the case by the majority as a semantic manipulation to avoid classification of Aerojet’s actions as willful.
I agree with the majority that the intent necessary for a Johns-Manville1 type cause of action must be more than an intent to do an action which results in injury. The intent necessary for insurance coverage exclusion of a Johns-Manville cause of action must be a preconceived intent to injure.
A Labor Code section 3602, subdivision (b)(2), Johns-Manville cause of action requires the employer to have known of the injury (McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 301 [225 Cal.Rptr. 394]; Foster v. Xerox Corp. (1985) 40 Cal.3d 306, 312 [219 Cal.Rptr. 485, 707 P.2d 858]) [1192]and concealed the employment source and existence of the injury (Barth v. Firestone Tire and Rubber Co. (N.D. Cal. 1987) 661 F.Supp. 193, 202-203; Foster v. Xerox Corp., supra, at p. 312). The cause of action thus requires the employer to act “ ‘with the specific intent to injure’ ” the employee. (Roberts v. Pup 'N' Taco Driveup (1984) 160 Cal.App.3d 278, 283 [206 Cal.Rptr. 533], citing Williams v. International Paper Co. (1982) 129 Cal.App.3d 810, 818-819 [181 Cal.Rptr. 342].) Actions which aggravate a known existing injury by concealment are more than intentional actions with unintended results.
In Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 [233 Cal.Rptr. 308, 729 P.2d 743], the California Supreme Court did not disavow the rationale and reasoning of Johns-Manville and Labor Code section 3602, subdivision (b)(2), which contained a requirement of intent to injure, when it decided against allowing an action for intentional infliction of emotional distress against an employer as an exception to workers’ compensation. The court merely disallowed the claim, stating, “[t]o permit liability where the employer did not specifically intend to cause distress but his misconduct reflected a reckless disregard of the probability of injury would be contrary to Johns-Manville." (P. 159.)
In Cole, the court concluded that when an employee attributes to his employer misconduct which is a normal part of the employment relationship, such as demotions, criticism of work practices, frictions in negotiations, etc., and which result in the employee’s suffering of emotional distress causing disability, the employee may not avoid the exclusive remedy of the Labor Code by characterizing the employer’s conduct simply as outrageous or manifestly unfair or intending to cause disability.
The court simply described the facts of Cole as inapposite to the circumstances of Johns-Manville and the provisions of Labor Code section 3602, subdivision (b)(2). By distinguishing the intentional infliction of emotional distress claim, the court indicated Johns-Manville and Labor Code 3602, subdivision (b)(2), require a specific intent to injure. Because Labor Code section 3602, subdivision (b)(2), requires an employer to have and conceal knowledge from the employee with the intent to injure the employee, it requires the same intent for which Insurance Code section 533 precludes insurance coverage, “preconceived design to inflict injury.”
In State Farm Fire & Casualty Co. v. Drasin (1984) 152 Cal.App.3d 864 [199 Cal.Rptr. 749], the court held that when the basis of an action tendered for defense and/or indemnity is not possibly covered under the facts and theories in the underlying action, the insurance carrier has no obliga[1193]tion to defend such a proceeding. (Id., at pp. 868-869.) I believe such is the case in this instance.
In the underlying action, the only causes of action alleged against Aerojet were predicated on the Johns-Manville decision involving fraudulent concealment of work-incurred injury and Labor Code section 3602. My examination of the complaint fails to disclose any facts alleged which would support any other cause of action under which the insurance company could be liable to defend and indemnify. (CNA Casualty of California v. Seaboard Surety Co. (1986) 176 Cal.App.3d 598, 604, 606, 610 [222 Cal.Rptr. 276].) In viewing the allegations, I accepted as true all allegations contained in the underlying complaint. (Cal-Farm Ins. Co. v. TAC Exterminators, Inc. (1985) 172 Cal.App.3d 564, 572 [218 Cal.Rptr. 407], citing Underwriters Ins. Co. v.Purdie (1983) 145 Cal.App.3d 57, 64 [193 Cal.Rptr. 248].)
In this instance, the only facts asserting any liability on the part of the employer are those embraced in the Johns-Manville type causes of action and the provisions of Labor Code section 3602, subdivision (b)(2), that is, fraudulent concealment of work-induced injuries. Those facts which are alleged in this case and are as described in the Johns-Manville cause of action cannot support any other cause of action which the policy could potentially cover. As Labor Code section 3602 states, “[w]here the conditions of compensation set forth in Section 3600 [the workers’ compensation section] concur, the right to recover such compensation is, except as specifically provided in this section [for a physical assault by the employer, aggravation of the employee’s injuries as in this case, or a defective product manufactured by the employer] and Sections 3706 [where the employer fails to secure payment of compensation] and 4558 [for removal or noninstallation of power press guards], the sole and exclusive remedy of the employee or his or her dependents against the employer, . . .”
I would conclude that under circumstances in which the only alleged potential basis for liability is predicated upon fraudulent concealment of the existence of injury as defined in Labor Code section 3602, subdivision (b)(2), there can be no basis for indemnity or duty to defend by the insurance carrier. (State Farm v. Drasin, supra, 152 Cal.App.3d at pp. 868, 869.)
Here there is an absence of any allegations of employer assaults, defective products, failure to secure payment of compensation, or any failure to maintain properly maintained work areas; no facts of any kind support any exception to the workers’ compensation claim other than the aggravation of injuries, the nature and cause of which was fraudulently concealed from the [1194]employee; as a consequence, the insurance carrier has no duty, as a matter of law, to defend or indemnify Aerojet.
I view the majority conclusion, that a fraudulent concealment does not necessarily equal a preconceived design to inflict injury that would involve section 533 of the Insurance Code, as judicial prestidigitation.
I would conclude that since Aerojet General Corporation had no potential liability under the allegations of the complaint except for fraudulent concealment under the Johns-Manville theory of liability, the action complained of would constitute a willful act under Insurance Code section 533 as a matter of law.
I would aifirm the judgment.
A petition for a rehearing was denied August 8, 1988. Evans, Acting P. J., was of the opinion that the petition should be granted. Respondent’s petition for review by the Supreme Court was denied October 13, 1988. Kaufman, J., was of the opinion that the petition should be granted.
Johns-Manville Products Corp. v. Superior Court (1980) 27 Cal.3d 465 [165 Cal.Rptr. 858, 612 P.2d 948, 9 A.L.R.4th 758].