Opinion
No. 36972-9-II.
January 27, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-09705-5, Vicki L. Hogan, J., entered November 8, 2007.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
Catherine Baylor appeals the trial court's grant of summary judgment in favor of Leslie Hohbein. We affirm.
FACTS
Catherine Baylor and Leslie Hohbein were both employees of Absolutely Cleaning Service, LLC' (Absolutely Clean) in February 2005. On the 18th of that month, Baylor and Hohbein started work at approximately 9 am. They cleaned a house in the Canterwood neighborhood of Gig Harbor and finished sometime between 11:30 am and noon. Baylor and Hohbein then drove in an Absolutely Clean company car to McDonalds for lunch.
Baylor and Hohbein ordered their food and ate it in their car in the McDonalds parking lot. While they were eating, the owner of Absolutely Clean called Hohbein and asked her to return to the office to pick up JoAnn May, a third co-employee, who was to help them clean the next house. Hohbein and Baylor picked up May even though they had not finished eating their lunches. When May got in the car, she asked Hohbein and Baylor if they could go back to McDonalds so she could purchase lunch. Hohbein, who was driving, agreed.
According to Baylor, the women were in a car accident while driving to McDonalds. According to Hohbein, however, the women were in the car accident while driving to their next client's house.
Baylor applied for workers' compensation benefits as a result of injuries she allegedly sustained in the accident. She indicated on her workers' compensation benefit application that she was involved in a car accident in her employer's vehicle while she was on her way to her next cleaning job. The Department of Labor and Industries approved Baylor's application. For approximately 18 months, Baylor received medical benefits, time loss benefits, and vocational counseling.
Baylor later filed a complaint in Pierce County Superior Court for injuries she allegedly sustained during the accident. Baylor named Hohbein, individually, and Absolutely Clean as defendants. When Baylor filed her complaint on July 21, 2006, she was still receiving workers' compensation benefits.
After filing an answer and deposing several witnesses, Hohbein and Absolutely Clean filed a motion for summary judgment, claiming that Baylor was barred from bringing a civil action against them under Title 51 RCW because Baylor's sole remedy was confined to workers' compensation benefits. The trial court granted the motion, finding "that there are no genuine issues of material fact that exist. The Plaintiff applied for and received LI benefits for 18 months, [RCW] 52.12, 52.32, 51.24. It's an exclusive remedy." RP at 23. Baylor appeals the trial court's ruling.
Baylor does not appeal the trial court's dismissal of her negligence claim against Absolutely Clean. She has not alleged or presented any facts on appeal suggesting Absolutely Clean qualifies as a third-party tortfeasor under RCW 51.24.030(1). Nor has Baylor alleged or presented any facts on appeal alleging that Absolutely Cleaning may be liable under the doctrine of respondeat superior.
ANALYSIS
The trial court dismissed Baylor's negligence action against Hohbein on summary judgment. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Stelter v. Dep't of Labor Indus., 147 Wn.2d 702, 707, 57 P.3d 248 (2002). A material fact is one on which the outcome of the controversy depends. Owen v. Burlington N. Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 (2005). An appellate court reviews a summary judgment order de novo, viewing the evidence in the light most favorable to the non-moving party. CR 56(c); Stelter, 147 Wn.2d at 707.
In this case, the trial court found no genuine issue of material fact in Baylor's negligence claim because she pursued her exclusive remedy under Title 51 RCW, the Industrial Insurance Act (IIA). The Washington legislature enacted the IIA to provide swift compensation for injured workers. Hildahl v. Bringolf, 101 Wn. App. 634, 640, 5 P.3d 38 (2000), review denied, 142 Wn.2d 1020 (2001). In doing so, it replaced the common law fault-based system for the statutory scheme set forth in the IIA. Hildahl, 101 Wn. App. at 640. Similar to other workers' compensation acts, Washington's IIA embodies a compromise that the employer pays some claims for which there would be no liability under common law, and the employee gives up common law actions in exchange for certain relief. Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 57, 821 P.2d 18 (1991).
The IIA "provides the exclusive remedy for workers injured during the course of their employment; all remedies outside of the act were abolished except as provided in RCW Title 51." Washington Ins. Guar. Ass'n v. Dep't of Labor Indus., 122 Wn.2d 527, 530, 859 P.2d 592 (1993). But there is a statutory exception for third-party suits: "If a third person, not in a worker's same employ, is or may become liable to pay damages on account of a worker's injury for which benefits and compensation are provided under this title, the injured worker or beneficiary may elect to seek damages from the third person." RCW 51.24.030(1). A well established derivative of this rule is that when both employees have a common employer but the negligent employee is not acting within the scope of employment when the injury occurs, that employee is not immune from liability. Evans v. Thompson, 124 Wn.2d 435, 444, 879 P.2d 938 (1994). Generally, it is a question for the jury to determine whether an employee was acting within the scope of employment. Evans, 124 Wn.2d at 444. And " immunity attaches to the coemployee only when the coemployee is acting in the course of his employment." Evans, 124 Wn.2d at 444 (internal quotations omitted).
Here, it is undisputed that Hohbein and Baylor were co-employees at Absolutely Clean when they were in the collision. Thus, Hohbein is immune from Baylor's third-party negligence suit if she was acting within the course of employment at the time of the accident. See Evans, 124 Wn.2d at 444.
An employee is within her course of employment if she is engaged in the furtherance of her employer's interest. RCW 51.08.013(1); Ball-Foster Glass Container Co. v. Giovanelli, 163 Wn.2d 133, 141-42, 153-54, 177 P.3d 692 (2008). "It is not necessary that at the time an injury is sustained by a worker he or she is doing the work on which his or her compensation is based or that the event is within the time limits on which industrial insurance or medical aid premiums or assessments are paid." RCW 51.08.013(1). And "[w]here an employer supplies a car for the mutual benefit of himself and the workman to facilitate the progress of the work, the employment begins when the workman enters the vehicle and ends when he leaves it on the termination of his labor." Puget Sound Energy, Inc. v. Adamo, 113 Wn. App. 166, 169, 52 P.3d 560 (2002) (internal quotations omitted); see also Ball-Foster, 163 Wn.2d at 141-42.
In Ball-Foster, the Washington Supreme Court recently addressed whether a traveling employee was entitled to workers' compensation benefits under the IIA for an injury he sustained during a weekend excursion. The Supreme Court held that a traveling employee remains in the course of employment except during a distinct departure on a personal errand. Ball-Foster, 163 Wn.2d at 153. It reasoned that the traveling employee did not distinctly depart from his course of employment when he took a stroll in a park on his day off because the nature of the activity was not unreasonable or unusual for a traveling employee. Ball-Foster, 163 Wn.2d at 152-53. Therefore, it held that the employee was entitled to workers' compensation benefits under the IIA for injuries he sustained during that walk. Ball-Foster, 163 Wn.2d at 152-53.
Division One of this court reached an analogous conclusion in Adamo. There, Puget Sound Energy employed Adamo, a public improvement inspector. Adamo, 113 Wn. App. at 168. Puget Sound Energy assigned Adamo a company truck as a part of his job. Adamo, 113 Wn. App. at 168. He used the truck to commute to and from work, as well as for job assignments during his regular working hours. Adamo, 113 Wn. App. at 168. Specifically, Adamo was required to take the truck home so that he could transport himself and his tools to emergencies on an on-call basis. Adamo, 113 Wn. App. at 168. On Christmas Eve, Puget Sound Energy gave Adamo permission to leave work early. As he left the building and walked to the truck parked in the company parking lot, he slipped on ice and sustained an injury. Adamo, 113 Wn. App. at 168. Division One held that Adamo was entitled to workers' compensation coverage under the IIA because at the time of the incident he was in furtherance of his employer's interests. Adamo, 113 Wn. App. at 170-71. It agreed with the trial court that "Adamo was covered by the [IIA] from the time he left his home in the morning in the company vehicle until he returned home and exited the vehicle." Adamo, 113 Wn. App. at 171.
The facts of this case are even more compelling than those of Adamo and Ball-Foster. Hohbein was driving a company car with Baylor as a passenger when they got in the accident. Even if the two women were eating lunch, they were clearly furthering Absolutely Clean's business. Absolutely Clean's owner called Hohbein and asked her to return to the office to pick up a third co-employee to help with their next job and she did so. Holbein was picked up her co-employee, in the company car, at the employer's direction. It follows that Hohbein is immune from suit under the IIA because she was acting in the course of her employment when the accident occurred. Contrary to Baylor's argument, it is of no consequence that the two women were eating lunch when the accident occurred. They were still in a company car, at Absolutely Clean's direction, and in furtherance of its interest and, therefore, in the course of employment. See Ball-Foster, 163 Wn.2d at 152-53; Adamo, 113 Wn. App. at 170-71.
Moreover, it does not matter that Baylor acknowledges that the Department of Labor and Industries is entitled to reimbursement and a lien on any third-party recovery. Baylor is not entitled to bring a third-party claim against Hohbein in the first place because Hohbein was in the course of employment when the collision occurred. See RCW 51.24.030(1).
There are no genuine issues of material fact presented here; the trial court properly dismissed Baylor's third-party claim on summary judgment.3
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.