This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Craig Kopet, et al.,
General Mills, Incorporated,
a foreign corporation,
Hennepin County District Court
File No. EM 03-020505
Alf E. Sivertson,
Mark F. Gaughan, Law Offices of Sivertson and Barrette, P.A., The Barrister
Kathryn Mrkonich Wilson, Andrew J. Voss, Littler Mendelson, P.C., 33 South Sixth Street, Suite 3110, Minneapolis, MN 55402-3720 (for appellant)
Considered and decided by Minge, Presiding Judge; Stoneburner, Judge; and Wright, Judge.
Appellant challenges the denial of its motion to dismiss for lack of subject matter jurisdiction. Because there is a genuine issue of material fact regarding whether the actions against respondent fit into the assault exception to jurisdiction under the Workers’ Compensation Act, we affirm.
Respondent Craig Kopet worked for appellant General Mills at its grain elevators, loading and unloading grain from trucks and rail cars. While working at the Delmar elevator, Kopet encountered fellow employee Austin Church. Church made statements to Kopet about his body, offensive sexual references, and comments about what Church would like to do to Kopet sexually and what Church would like Kopet to do to him. Church also made sexually inappropriate comments about Kopet’s wife and children. In addition, Church unzipped his pants and simulated masturbation. On a number of occasions, Church rubbed Kopet’s leg, pressed his groin against Kopet’s buttocks, and pushed a metal pole against Kopet’s buttocks as Kopet climbed down a ladder. Kopet complained to his supervisors several times, asking that they stop Church from touching him and making sexual remarks, but the supervisors ignored his complaints. Kopet did not claim he received a physical injury or apply for or receive any workers’ compensation benefits related to the incidents. Kopet left General Mills’ employment in January 2002.
In November 2003, Kopet and his wife commenced suit against General Mills claiming several common-law causes of action including assault and battery, negligent retention, negligent supervision, and loss of consortium. In April 2004, the Kopets moved to amend their complaint to seek punitive damages; the district court granted the motion. General Mills moved to dismiss on the basis that the workers’ compensation system has exclusive jurisdiction over all tort claims and displaces common-law claims. The district court treated the motion as a motion for summary judgment and denied General Mill’s motion. This appeal follows.
On appeal from summary judgment,
this court must examine two questions:
(1) whether there are any genuine issues of material fact, and (2)
whether the district court erred in its interpretation of the law. Cummings v. Koehnen, 568 N.W.2d 418,
recognizes several exceptions to the exclusivity provisions, including the
assault exception and the intentional injury exception. See Minn. Stat. § 176.011, subd.
16 (2004) (excluding from the Act coverage for injuries caused by another
intended to injure the employee because of personal reasons); see also Meintsma
v. Loram Maint. of Way, Inc., 684 N.W.2d 434, 439-40 (
General Mills argues that the Minnesota Supreme
Court’s decisions in Meintsma
and McGowan narrowly define the assault exception and preclude recovery
by the Kopets. Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 833-34. The Kopets claim that the assault exception
is more expansive and allows a common law claim. Meintsma
and McGowan both deal with the question of what incidents fit within the
assault exception. Meintsma, 684 N.W.2d at 439; McGowan, 527 N.W.2d at 833. In Meintsma, a male employee who was
part of the union bargaining unit was spanked with a wooden paddle by other
union members as a part of a birthday ritual.
684 N.W.2d at 437-38. The
employee went to the hospital emergency room that evening after work where physical
injuries were identified.
the director of a homeless shelter was raped by a disruptive shelter
client. 527 N.W.2d at 832. The assault took place in the director’s
office after the director had taken him there to defuse the situation.
In both the Meinstma and McGowan cases, the supreme court dismissed the employees’ tort claims because WCA was preemptive of tort claims and constituted the exclusive remedy. Meinstma, 684 N.W.2d at 440; McGowan, 527 N.W.2d at 834. In neither case did the court find that the employers were part of intentional assaults, but in both cases the court found that the assaults were related to the employment setting, and that the intentional injury and the assault exceptions in the WCA did not apply. Meinstma, 684 N.W.2d at 440; McGowan, 527 N.W.2d at 834. In both cases there was some physical assault, physical injury and claim or activity that involved the WCA.
parties have directed our attention to the recent decision of this court
dealing with a sexual harassment claim by an employee against an employer. Stengel v. E. Side Beverage, 690
N.W.2d 380 (Minn. App. 2004), review denied (
The alleged offensive conduct by Church against Kopet is similar to the conduct in the Stengel case. It appears to be unprovoked and spontaneous conduct by a fellow employee. Although occurring at the work site, the comments and contact directed at Kopet appear personal in nature. Unlike McGowan, Kopet was not placed at risk of this type of an attack because of the nature of his employment and the identity of the assailant. There is no evidence that the harassment inflicted on Kopet was part of a long-standing workplace tradition like the birthday paddling in Meinstma. This appeal concerns denial of appellant’s motion for summary judgment. Stengel also involved summary judgment. Like Stengel, this appeal concerns what motivated Church as the assailant. Viewing the proceeding and record most favorably to the Kopets, we conclude that there is a genuine issue of material fact whether Church’s alleged acts were directed against Kopet for personal reasons unconnected to employment. We conclude that summary judgment was properly denied.
 Cases may arise in which the employee seeks to be freed of the exclusive and limited recovery under the WCA to pursue a common-law claim and others may arise where the employer seeks to avoid strict liability under the WCA. Thus, in different situations the employee/employer arguments may not be consistent. The identity of the party arguing each prospective should not affect the analysis.
Some physical injury is apparently required for WCA coverage. See
Egeland, 344 N.W.2d at 604-05.
Without considering the assault exception, a recent
We also note that Kopet’s
complaints are akin to sexual harassment claims typically brought under the
Minnesota Human Rights Act.