McDonald

In this case we determine that section 3602, subdivision (b)(2), of the Labor Code allows an employee to recover punitive as well as compensatory damages for aggravation of an injury resulting from the employer’s fraudulent concealment of the injury and its connection with the employment.

Procedural and Factual Background

This is a petition for writ of mandate by Donald McDonald, plaintiff employee in an action for damages for injury from asbestos exposure against, among others, The Flintkote Company, his employer for 27 years. The trial court granted defendant Flintkote’s motion to strike the paragraphs in the complaint and the prayer seeking punitive damages without leave to amend on the ground, asserted by Flintkote, that punitive damages are not recoverable under section 3602, subdivision (b)(2). Concurrently the court sustained Flintkote’s demurrer to plaintiff’s cause of action “for punitive damages” without leave to amend. At issue are whether section 3602, subdivision (b)(2), bars punitive damages and, if not, whether plaintiff’s allegations are sufficient for recovery under that section.

The allegations of the complaint which we must accept as true show the…