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Washington Supreme Court: The Boundaries of Co-employee Tort Immunity, Revisited

Posted Tuesday, April 18, 2017 by Lisa Benedetti

EmployeesIn October 2015, the Court of Appeals, Division I, held that the tort immunity provided by Workers’ Compensation law did not apply when one employee is injured by a co-employee, where the co-employee was not “on the clock” when the injury occurred. At the time, I reviewed that case here.

Since then, this case went up to the Washington Supreme Court, who on January 12, 2017 agreed with the Court of Appeals (Case No. 92581-0). As such, I take this opportunity to review this case anew.

Cool and Entila both worked for Boeing. After Cook finished work, he went to his car to leave. He was driving his car on a Boeing access road when he struck and injured Entila. Entila received Workers’ Compensation benefits for his injuries, and also filed suit against Cook for negligence.

Entila argued Cook must show he was doing work for Boeing at the time of the crash to receive immunity, which Cook was not. By contrast, Cook claimed immunity because he was “acting in the course of employment,” a broader definition used to determine whether an injured worker is entitled to Workers’ Compensation. Workers’ Compensation law defines “acting in the course of employment” as including “time spent going to and from work on the jobsite,” and does not require the worker to be “doing the work on which his or her compensation is based.” RCW 51.08.013(1).

The Supreme Court noted that the “acting in the course of employment” definition applies only to Entila’s eligibility for Workers’ Compensation benefits and Boeing’s immunity from suit as Entila’s employer – not to Cook’s immunity from suit as a co-employee. Under Workers’ Compensation law, Cook is not eligible for immunity unless he is in the “same employ” as Entila. RCW 51.24.030(1).

These two different immunities serve different purposes. A worker’s eligibility for Workers’ Compensation benefits (which, by extension, immunizes the employer from further suit), is meant to be analyzed in favor of the injured worker. The statutory language itself expands benefit eligibility beyond when the employee is working, also encompassing injuries occurring while going to and from work. By contrast, the law on third-party liability favors allowing third-party actions (not barring them), and thus favor interpreting immunity narrowly (not broadly).

Given this distinction, the Supreme Court held that, to show he was in the “same employ” as Entila, Cook must establish not only that he had the same employer as Entila, but that Cook was performing duties for his employer when the injuries occurred. The fact that Entila received Workers’ Compensation benefits for the same injury has no bearing on determining whether Cook was immune.

This case reaffirms the right of the injured to sue the third-party that injured him even when eligible to receive Workers’ Compensation benefits, which the Court has previously recognized as a “valuable right to the workman.” Michaels v. CH2M Hill, Inc., 171 Wn.2d 587, 599, 257 P.3d 532 (2011).

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