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

Posted Tuesday, April 18, 2017 by Pivotal Law Group

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).

Photo Credit: FreeImages.com/rob_gonyea-59290

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Distracted driving cited for spike in pedestrian deaths in 2016

Posted Wednesday, April 5, 2017 by Christopher L. Thayer

PedestriansState data released last Thursday demonstrate that pedestrian deaths are increasing at a faster rate than motorist deaths, and reached nearly 6,000 last year.

Increased driving due to an improved economy, lower gas prices and more walking for exercise and environmental factors are some of the likely reasons behind the estimated 11 percent spike in pedestrian fatalities in 2016. The figures were prepared for the Governors Highway Safety Association, which represents state highway safety offices.

But researchers say they think the biggest factor may be more drivers and walkers distracted by cellphones and other electronic devices, although that’s hard to confirm.

Walking and miles driven are up only a few percentage points, and are unlikely to account for most of the surge in pedestrian deaths, said Richard Retting, safety director for Sam Schwartz Transportation Consultants and the author of the report. Meanwhile, texting and use of wireless devices have exploded, he said.

“It’s the only factor that that seems to indicate a dramatic change in how people behave,” Retting said.

This new data comes out at the same time as two companion “distracted driving” bills are being considered by the Washington legislature, one of which we wrote about last month. The first, SB 5289, has passed the Senate and is currently in House Committee. The second, HB 1371, has passed the House and is currently on second reading by Rules Committee.

Click here for a link to the full article or see the link below:


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Puget Sound Energy agrees to pay $1.5M in penalties for Greenwood explosion

Posted Wednesday, March 29, 2017 by Pivotal Law Group

GreenwoodIt was announced yesterday that a settlement has been reached between Puget Sound Energy (PSE) and the state’s Utilities and Transportation Commission, in which PSE agrees to pay $1.5 million in penalties for the March 9, 2016 natural-gas explosion in Greenwood.

The blast, in a line that was supposed to have been retired in 2004, destroyed three businesses, damaged nearly three dozen others and injured nine firefighters.

An estimate the day of the explosion placed the damage at $3 million. The three businesses that were destroyed were in two adjacent buildings, one built in 1910, the other in 1926.

Investigators found that employees of Pilchuck Contractors, a Kirkland company hired by PSE for pipeline maintenance, did not properly cut and cap the line.

In addition to the penalty, PSE has received 15 individual claims, 8 of which have been resolved to date.

Click here for a link to the full article or see the link below:


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Ninth Circuit: A person who is unable to sit for more than four hours a day is “disabled” from sedentary work under ERISA

Posted Friday, March 24, 2017 by Pivotal Law Group

Alternative TextIn Armani v. Northwestern Mutual Life Ins. Co., 14-56866 (November 4, 2016), the Ninth Circuit joined other courts around the country in holding that a person who cannot sit for more than four hours in an eight-hour workday qualifies as “disabled” from sedentary work under the Employee Retirement Income Security Act (“ERISA”).Avery Armani worked as a full-time controller for the Renaissance Insurance Agency. His job was “sedentary,” and required him to sit for approximately seven hours a day, and stand or walk for the remaining time.

During his employment, Mr. Armani injured his back while lifting a heavy backup power supply. His family practitioner and chiropractor both agreed that, due to his back injury, Mr. Armani was limited to sitting for no more than four hours, standing for no more than two hours, and walking for no more than two hours, during an eight-hour workday.

Mr. Armani applied for long-term disability benefits from his ERISA-governed disability insurance company, Northwestern Mutual. Under the terms of his disability policy, Mr. Armani qualified as disabled during the first 24 months if he was unable to perform his “own occupation,” and after the first 24 months if he was unable to perform “any gainful occupation.” Northwestern Mutual denied his application, claiming he was capable of performing his own job as well as other gainful sedentary jobs. Mr. Armani filed suit.

At trial, Mr. Armani argued he was disabled from both his “own occupation” and from “any gainful occupation” because, by definition of the Social Security Administration (which administers government-based disability benefits), “sedentary” work requires an ability to sit for six hours. The trial court held that Northwestern Mutual was not bound by this definition, and that although Mr. Armani proved he was disabled from his “own occupation,” he failed to prove he was disabled from “any gainful occupation.”

The Ninth Circuit disagreed. The Court noted that other circuit courts “have consistently held that an employee who cannot sit for more than four hours in an eight-hour workday cannot perform work classified as ‘sedentary,’” and agreed with this “commonsense conclusion.” Regardless of whether the Social Security Administration’s definition of disability applied in this context, Mr. Armani succeeded in establishing by preponderance of the evidence that he was unable to perform gainful sedentary work, given his inability to sit for more than four hours in a workday.

Photo credit: 090724, used under the Creative Commons license.

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Recent Change in Non-Parental Custody: Raising the First Hurdle

Posted Wednesday, March 15, 2017 by Pivotal Law Group

HandsI have previously written about the somewhat specialized area of Family Law called Non-Parental Custody (“NPC”) in which a non-parent (frequently grandparents) seek to gain custody of a child from the child’s parents. As noted in that article, it can be an uphill battle for the potential non-parental custodian. Well, it just got harder.

I was involved in a case that, upon reaching the Washington Supreme Court, was called In the Matter of the Custody of L.M.S. This was a case that I was involved in at the trial level with a particularly difficult set of facts. In this case, 9 year-old LMS had lived with her maternal grandparents for the entirety of her life. Her mother came in and out as her life had its ups and downs. The father moved to California when LMS was two, and never came back. At some point, the state started collecting child support from the father, which was provided to the grandparents. Not terribly long after that, the father showed in Washington to claim the child because he became aware of legal problems for the mother. He filed for a modification of the Parenting Plan. The grandparents filed for Non-Parental Custody.

Non-parental custody actions and modification actions require adequate cause hearings where the Court decides if there are sufficient facts for the case to move forward for a trial. These are held early in the litigation process, and usually occur before discovery has been conducted. That was the case here.

At the adequate cause hearing, the Commissioner decided that there was no evidence that the father was “unfit” (one requirement of an NPC). Making that decision, the Commissioner dismissed the NPC action. This meant that LMS had to immediately move to California with a father that she did not know.

The decision was appealed to a Superior Court judge with an emphasis that NPC’s can be granted if there will be an actual harm to the child if they are placed with a parent. The judge disagreed with this standard, and affirmed the Commissioner’s ruling. The case then went to the Court of Appeals who affirmed the case on basically the same grounds.

The case finally went to the Washington Supreme Court where the decision was made along a 5-4 split. The Court’s decision basically undercut the growing line of cases that provided exceptions to the basic standard of “fit” parent. The effect that this will have will be to narrow the number of situations in which adequate cause for an NPC case may be found, which will strengthen the rights of parents, but may weaken the protections for children. This dichotomy was clearly in the mind of the dissent (feel free to read the dissent if you want to know exactly how I feel about this case), but the ruling means that Washington has chosen parents over children.

Photo credit: Five for Five #ds487, used under the Creative Commons license.

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