WISCONSIN — Plaintiff Johnson Carter filed suit against Henry Carlson’s Construction Company (HCCC) alleging he suffered “a variety of severe medical symptoms” after exposure to asbestos while working for HCCC as a temporary construction worker. Specifically, he claimed that he was exposed to asbestos during a demolition of a hospital in the late 1980s. He could not recall the name of the temporary agency or hospital, but stated that he was provided a dust mask for the tear-out work. HCCC moved to dismiss the complaint arguing that worker’s compensation provides an exclusive remedy for the plaintiff’s claim. The plaintiff opposed and took the position that he was not an employee of HCCC and that’s HCCC’s actions rose to the level of an intentional tort.
The court began its analysis and stated that a complaint “must contain factual matter, accepted as true, to state a claim to relief that is plausible on its face.” As for whether South Dakota or Wisconsin law applied, the court quickly found that Carter was an employee of HCCC for purposes of workers’ compensation as one lent or contracted by another for employment fits the meaning of the statute regardless of which state law applied. Here, the plaintiff conceded that his amended complaint did not allege an intentional tort. However, according to the plaintiff the opposition suggested that HCCC had “full knowledge of the danger” and “was aware of the asbestos because the foreman brought” him a mask and said that asbestos was in the building. The court noted that an intentional harm by the employer to an employee negates the exclusivity provision of the workers’ compensation statute. However, the plaintiff did not plead facts sufficient to conclude intent on the part of the defendant. On the contrary, the fact that the defendant provided masks shows the opposite. Accordingly, the motion to dismiss was granted.