Opinion
No. 21622-5-III.
Filed: April 27, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 01-2-06320-5. Judgment or order under review. Date filed: 11/20/2002. Judge signing: Hon. Robert D Austin.
Counsel for Appellant(s), Michael Jon Riccelli, Attorney at Law, Rock Pt Twr, 316 W Boone Ave Ste 180, Spokane, WA 99201-2346.
Counsel for Respondent(s), Gregory John Arpin, Paine Hamblen Coffin Brooke Miller LLP, 717 W Sprague Ave Ste 1200, Spokane, WA 99201-3505.
Andrew Mitchell, Attorney at Law, 717 W Sprague Ave Ste 1200, Spokane, WA 99201-3505.
Edward G. Johnson, Raymond W Schutts/Managing Atty, 14610 E Sprague Ave, Spokane, WA 99216-2146.
In the course of his employment with Labor Ready Northwest, David D. Kendall was severely injured on a jobsite owned by Wells and Company. At the time of his injury, Mr. Kendall lived with Heather Edmonds, who he subsequently married, and her son Nicolas. The Kendalls sued Wells for negligence and loss of consortium. Wells, in turn, filed a third party indemnification suit against its subcontractor Total Masonry, and J.T. and Jane Doe Schlecht (Total Masonry). The Spokane County Superior Court entered summary judgment orders dismissing all claims, effectively invoking the Industrial Insurance Act (IIA) bar of suit by employee against employer for negligence, and the common law bar of suit by future spouses/stepchildren for injuries resulting from pre-marriage accidents. The Kendalls appeal.
We reverse the trial court and remand for trial on Mr. Kendall's negligence claim, but affirm the trial court's dismissal of Heather Kendall's and Nicolas Edmonds's claims.
FACTS
In June 1998, temporary labor supply agency Labor Ready Northwest employed David Kendall to work at Wells's Riverside Court Townhouse project in Spokane. Wells's project superintendent Wayne King enlisted Mr. Kendall's services through Labor Ready to assist the project's brick mason subcontractor, Total Masonry, which is owned by J.T. Schlecht. Mr. Kendall worked at the Wells's jobsite throughout the summer. Mr. King supervised and controlled his daily job activities — an authority consented to by Mr. Kendall. Mr. King treated him the same as the Wells's employees, but never hired him as a Wells's employee or told him he was one. If Mr. Schlecht did not need Mr. Kendall's assistance on a particular day, Mr. King would tell him to do something else. Mr. Kendall agreed to this arrangement. On slow days, Mr. King occasionally sent him to work at another Wells's jobsite, the Steam Plant Square project.
Nevertheless, both Mr. King and Mr. Kendall still considered Mr. Kendall a temporary employee provided by Labor Ready. Mr. Kendall turned in a Labor Ready time slip every day, as opposed to a Wells's timecard. According to Wells's employee and speaking agent Spencer Stromberg, Labor Ready would periodically send invoices to Wells for Mr. Kendall's services and Wells would pay those invoices. Mr. Stromberg also stated Wells had no record that Mr. Kendall ever filed an employment application or that it had hired him. Mr. King had hiring authority for the Riverside Court project and if he had hired Mr. Kendall as a company employee, it would have been reflected in Wells's business files.
In his deposition, Mr. Kendall stated that he filed paperwork to apply for a job with Wells. But he still considered Labor Ready his 'fundamental employer' because it was paying his wages. Clerk's Papers (CP) at 130. He did admit, however, that he may have told people 'through slipping — through talking to people I may have said, 'Yeah, I'm working for Wells Company.'' CP at 130. And in a 1998 medical application with a doctor's office, he did list 'Wells Co.' as his employer with his occupation as '[h]od carrier.' CP at 132.
While working at the Riverside Court project on October 28, 1998, Mr. Kendall fell from a third-story roof and was severely injured. At the time of the accident, Mr. Kendall was unmarried with no children. But he was living with his wife-to-be, Heather, and her son from a prior relationship, Nicolas Edmonds. They had previously obtained an Idaho marriage license on June 26, 1998, but delayed marrying until they could afford a modest wedding and reception. They continued to live together as a family after the accident and were married on June 20, 2000. Their son Brendan was born on October 9, 2000.
On October 25, 2001, the Kendalls filed this negligence action against Wells, seeking general and special damages for Mr. Kendall's injuries, and loss of consortium damages for Heather Kendall and Nicolas Edmonds. The complaint alleged the injuries occurred because Wells created and maintained an unsafe workplace. The parties filed cross-motions for partial summary judgment. On November 20, 2002, the court entered an order dismissing all loss of consortium claims on the basis the common law cause of action does not extend to unmarried cohabitants or unadopted stepchildren. The Kendalls filed a timely notice of appeal from this order.
Wells meanwhile filed a third party complaint against Total Masonry, alleging its negligence caused Mr. Kendall's injuries, and seeking indemnity for any judgment and damages awarded against Wells. On December 5, 2002, Wells filed a motion for summary judgment to dismiss Mr. Kendall's claims as barred by the IIA on the theory he was conclusively a dual employee of Labor Ready and Wells at the time of the accident. Mr. Kendall filed a cross-motion for summary judgment contending the evidence conclusively established he was employed solely by Labor Ready, thus avoiding the IIA bar and subjecting Wells to negligence liability. Total Masonry joined in Wells's motion. On February 18, 2003, the court entered an order granting Wells's motion, denying Mr. Kendall's motion, and dismissing Mr. Kendall's claims. The court denied his motion for reconsideration. The Kendalls then perfected this appeal of the November 20 and February 18 orders.
ANALYSIS A. David Kendall's Negligence Claim
Did the trial court err in (1) granting Wells's motion for summary judgment dismissing David Kendall's common law negligence claim for his workplace injury as barred by the IIA, and (2) denying Mr. Kendall's cross-motion for summary judgment to declare him a non-employee of Wells for purposes of trial?
In reviewing a summary judgment order this court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We review summary judgment motions de novo and consider all facts and reasonable inferences in a light most favorable to the nonmoving party. Id. A motion for summary judgment is properly granted only if 'there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c). The IIA immunizes employers from civil tort actions for non-intentional workplace injuries to employees. See Flanigan v. Dep't of Labor Indus., 123 Wn.2d 418, 422, 869 P.2d 14 (1994); Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 242, 588 P.2d 1308 (1978). The IIA provides the exclusive remedy for these injured workers. RCW 51.04.010; Shoreline Concrete, 91 Wn.2d at 241.
Mr. Kendall and Wells both refer in their arguments on appeal to certain 'findings of fact' in the court's summary judgment orders. Findings of fact in a summary judgment order are superfluous and not considered. See e.g., Hubbard v. Spokane County, 146 Wn.2d 699, 706 n. 14, 50 P.3d 602 (2002).
An employment relationship exists for IIA purposes if (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is mutual consent to the employment relationship. Novenson v. Spokane Culvert Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979); Jones v. Halvorson-Berg, 69 Wn. App. 117, 121, 847 P.2d 945 (1993) (quoting Fisher v. City of Seattle, 62 Wn.2d 800, 805, 384 P.2d 852 (1963)). Consent may be given expressly or impliedly and may be inferred from the attending circumstances. Fisher, 62 Wn.2d at 806 (quoting Murray v. Union Ry. Co. of New York City, 229 N.Y. 110, 127 N.E. 907 (1920)). The critical question when industrial insurance immunity is at stake is whether the worker consented with the employer to the status of an employee. Id. at 804; see also Brown v. Labor Ready N.W., Inc., 113 Wn. App. 643, 648, 54 P.3d 166 (2002), review denied, 149 Wn.2d 1011 (2003).
Washington law also recognizes that, for industrial insurance purposes, an individual may sustain the relationship of dual employee to both a general employer who pays his wages and a special employer to whom he may be loaned and for whom he performs services. Lunday v. Dep't of Labor Indus., 200 Wn. 620, 624, 94 P.2d 744 (1939). In order for a dual employment relationship to exist, the Novenson test applies, i.e., both employers must have the right to control the worker's physical conduct and the worker must consent to the employer/employee relationship. See Scott R. Sonners, Inc. v. Dep't of Labor Indus., 101 Wn. App. 350, 355-56, 3 P.3d 756 (2000). A worker's reasonable belief is critical in determining whether the worker consented to employment with a specific employer. See Stelter v. Dep't of Labor Indus., 147 Wn.2d 702, 709, 57 P.3d 248 (2002).
In view of the above principles, Mr. Kendall primarily contends that even though Wells's superintendent, Mr. King, controlled his workplace activities, there was no employment relationship as a matter of law under Novenson and Stelter because there was no evidence or reasonable inference that Mr. Kendall consented to such a relationship or reasonably believed one existed. Mr. Kendall thus contends the court erred in dismissing his tort claim, and should have instead granted his motion for summary judgment legally declaring him a non-employee of Wells for purposes of trial. To the contrary, Wells and Total Masonry contend the evidence conclusively establishes that Mr. Kendall was a dual employee of both Wells and Labor Ready, thus barring his tort action and limiting him to IIA remedies. Wells and Total Masonry argue that, since Mr. Kendall knew of and consented to Mr. King's continuous everyday control over his work, he consented to the status of a Wells's employee whose services were loaned or transferred to Wells as new temporary master. Wells and Total Masonry thus deem it immaterial that Mr. Kendall was not a permanent Wells's employee. And Total Masonry further explains that Mr. Kendall must be deemed a Wells's employee because it was solely a Wells's employee rather than a Labor Ready employee who supervised Mr. Kendall's jobsite activities. We disagree with Wells and Total Masonry.
The determination of 'loaned servant' status is typically an issue for the trier of fact. The burden of avoiding liability based on the loaned servant doctrine is on the party claiming statutory immunity from common law suit. Rideau v. Cort Furniture Rental, 110 Wn. App. 301, 304, 39 P.3d 1006 (2002). Recent analysis of consent to employment cases in Washington stems from Fisher, in which Mr. Fisher was an employee hired by Standard Stations but who was injured by the negligence of Western Operations. Both of these entities were wholly owned subsidiaries of Standard Oil Company of California. Mr. Fisher sued Western Operations, which claimed immunity from suit under worker's compensation law on the basis Mr. Fisher was its employee. The trial court agreed that the three companies were interrelated. The Supreme Court reversed and remanded for trial with Mr. Fisher legally deemed a non-employee of Western Operations. The court reasoned that because Mr. Fisher was unaware that Standard Stations and Western Operations were related, he did not mutually consent to an employment relationship with Western Operations. Fisher, 62 Wn.2d at 806. Fisher thus illustrates that the worker's subjective belief is relevant to the outcome.
In Novenson, Mr. Novenson was the employee of temporary labor agency Kelly Labor. He reported to Kelly Labor on a daily basis to receive his work assignment. Each day, he was reassigned to Spokane Culvert, at his request. On his third day of work at Spokane Culvert, Mr. Novenson's hands were crushed in an industrial machine accident. He sued Spokane Culvert for negligence. The trial court granted Spokane Culvert's motion for summary judgment on the basis Mr. Novenson was its employee under the loaned servant doctrine. A sharply divided Supreme Court reversed the trial court, holding it improper to impute an employment relationship with Spokane Culvert as a matter of law. The court reasoned evidence existed that Mr. Novenson had not consented to an employment relationship because he asked a permanent Spokane Culvert employee about the possibility of employment with the company, thus creating a factual issue as to his understanding and consent vis-à-vis an employment relationship. Novenson, 91 Wn.2d at 555.
The Novenson majority also placed particular import on the public policy implications of the worker's compensation scheme in Washington:
When the party asserting the existence of an implied employment relation is not an employee seeking statutory compensation, but an employer seeking a defense to a common law suit, different social values are at stake. In the former situation, if an employment agreement is established, moderate statutory benefits are available to the injured worker; however, reaching such a conclusion in the second situation results in the destruction of valuable common law rights to the injured workman.
Novenson, 91 Wn.2d at 554-55.
In Jones, the general contractor Halvorson-Berg instructed its employee Mr. Jones to help its subcontractor Flour City unload windows. Mr. Jones was injured during the job and sued Flour City for negligence. The trial court found as a matter of law that Mr. Jones was not a loaned servant/Flour City employee. Applying Novenson in the employer's favor, the Supreme Court reversed on appeal because there was substantial conflicting evidence on the issues of control and consent. As to consent, Mr. Jones admitted he was loaned to and worked for Flour City, which gave him job instructions and supervision. But a Halvorson-Berg foreman testified he remained Mr. Jones's supervisor and that the Flour City foreman did not talk directly with Mr. Jones. Jones, 69 Wn. App. at 122. In Rideau, Mr. Rideau was hired by temporary labor service Occupational Resource Management, Inc. (ORM), which hired, fired and compensated all of its employees, paid Washington industrial insurance premiums, and withheld taxes from employee paychecks. But ORM's customers provided the necessary training, supervision, and tools for each job. Rideau, 110 Wn. App. at 302.
Mr. Rideau accepted ORM's offer for a temporary job with Cort Furniture Rental. He reported to ORM every day before going to Cort's workplace. He received his paychecks from ORM, but Cort supervised his work. He followed Cort's directions and expressed no concerns about Cort's supervision. But he did not believe Cort was his employer or that he was Cort's employee. He considered ORM to be his employer. About six weeks after hire by ORM and while still a temporary employee with Cort, Mr. Rideau was injured on the job. He sued Cort for negligence. The trial court granted summary judgment in favor of Cort on the basis Mr. Rideau was its employee. Id. at 303.
On appeal, the Rideau court examined Fisher, Novenson, and Jones and concluded:
We find that the case law is clear; both control of the employer and consent of the employee are required to establish an employment relationship. With respect to consent, there must be clear evidence of a mutual agreement between the employee and employer such that the employee has clearly consented to be the 'employee' of the 'employer.'
Rideau, 110 Wn. App. at 307 (citing Novenson, 91 Wn.2d at 553-54; Fisher, 62 Wn.2d at 804-05). And regarding materiality of the employee's subjective belief as to the existence of an employer-employee relationship, the Rideau court stated:
Although Rideau accepted a job with Cort from ORM, Rideau also stated that he considered ORM to be his sole employer. This fact alone raises the question of whether Rideau consented to the role of 'employee' to Cort and whether a mutual agreement existed. Considering all the material evidence and all reasonable inferences most favorably toward Rideau, the evidence shows there is a genuine dispute as to the issue of consent. Thus, summary judgment was inappropriate.
Rideau, 110 Wn. App. at 307-08.
Here, similar to Novenson and Rideau, it is undisputed that Mr. Kendall consented to Wells's control over his work activities, thus satisfying the first element of the Novenson test. But as the cases illustrate, consent to control does not itself equate also to mutual consent to an employment relationship. See Fisher, 62 Wn.2d at 805 (employee cannot have employer thrust upon him against his will or without his knowledge); see also Rideau, 110 Wn. App. at 304-05.
We believe this case is similar to Rideau. Mr. Kendall stated he considered Labor Ready to be his 'fundamental' employer because Labor Ready supplied his time slips and paid his wages. CP at 130. Moreover, in Mr. King's mind, Mr. Kendall remained a temporary laborer working for Labor Ready. And similar to Novenson, Mr. Kendall stated he was working on becoming a Wells's employee, thus creating a reasonable inference that he did not believe he had the status of an employee. In his deposition, Mr. King testified that he never hired David Kendall as a Wells's employee, nor did he ever tell him he was a Wells's employee. Mr. King could not recall anything that occurred on the job that would have reasonably led Mr. Kendall to believe he was a Wells's employee.
These circumstances, when viewed most favorably to the non-moving party, Mr. Kendall, demonstrate that factual issues remain as to whether he mutually consented to an employment relationship with Wells. The court therefore erred in granting Wells's summary judgment motion dismissing Mr. Kendall's claim.
The court's conclusion in Novenson is also apropos:
For whatever reason, Spokane Culvert found it advantageous to contract with Kelly to provide it with temporary workers. As opposed to permanent employees of Spokane Culvert, Kelly laborers were not placed on its payroll, nor were they eligible for company benefits. Spokane Culvert seeks the best of two worlds — minimum wage laborers not on its payroll, and also protection under the workmen's compensation act as though such laborers were its own employees. Having chosen to garner the benefits of conducting business in this manner, it is not unreasonable to require Spokane Culvert to assume the burdens. A potential burden, in this instance, may well be the application of RCW 51.24.010, which permits a common-law action for negligence.
Novenson, 91 Wn.2d at 555. This reasoning also substantially describes Wells's business practice, according to Mr. Stromberg's statements, that Wells had never hired Mr. Kendall but paid Labor Ready's invoices reflecting Mr. Kendall's hours of work.
Mr. Kendall's claim with the Department of Labor and Industries was apparently charged solely against Labor Ready Northwest.
Mr. Kendall did admit, however, to telling others and writing on the medical application that he was working 'for' Wells as his 'employer.' These facts, when viewed most favorably to the non-moving party, Wells, preclude Mr. Kendall's motion for summary judgment to declare him a non-employee of Wells. It is for a trier of fact to sort out as a matter of weight and credibility whether Mr. Kendall believed he had entered an employment relationship with Wells, or whether, for example, his statements merely alluded to his jobsite.
Accordingly, we hold that the trial court erred in dismissing on summary judgment Mr. Kendall's negligence claim against Wells and Wells's third party claim against Total Masonry. We further hold that the trial court did not err in denying Mr. Kendall's affirmative request for summary judgment.
We thus reject as inconsistent with controlling Washington law Wells's and Total Masonry's reliance on the Novenson dissent and the out-of-state cases cited by Total Masonry in which courts enforced the exclusive remedy rule on summary judgment under analogous facts. See St. Claire v. Minn. Harbor Serv., Inc., 211 F. Supp. 521 (D. Minn. 1962); McMaster v. Amoco Foam Prods. Co., 735 F. Supp. 941, 944 (D.S.D. 1990); Marlow v. Mid South Tool Co., 535 So.2d 120 (Ala. 1988); Hamilton v. Shell Oil Co., 233 So.2d 179 (Fla.Dist.Ct.App. 1970); Renfroe v. Higgins Rack Coating Mfg. Co., 17 Mich. App. 259, 169 N.W.2d 326 (1969); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo. 1967); Chickachop v. Manpower, Inc., 84 N.J. Super. 129, 201 A.2d 90 (1964); Garcia v. Smith Pipe Steel Co., 107 N.M. 808, 765 P.2d 1176 (1988); Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E.2d 554 (1965).
B. Heather Kendall's Loss of Consortium Claim
Did the trial court err in granting Wells's motion to dismiss Heather Kendall's common law loss of consortium claim on summary judgment when she and David Kendall were living together, had committed to a husband and wife relationship, and had obtained a marriage license prior to the accident?
The general rule in Washington is that a loss of consortium claim is not available when the injury to the spouse that caused the loss of consortium occurred prior to the marriage. Green v. A.P.C., 136 Wn.2d 87, 101, 960 P.2d 912 (1998); Christie v. Maxwell, 40 Wn. App. 40, 47-48, 696 P.2d 1256 (1985). There are three rationales for the rule: (1) a person should not be permitted to marry a cause of action; (2) one assumes with a spouse the risk of loss of consortium arising from any prior injury; and (3) as a matter of policy, tort liability should be limited. Green, 136 Wn.2d at 101 (citing Stager v. Schneider, 494 A.2d 1307, 1315 (D.C.App. 1985)).
In Green, the wife suffered a T-shaped uterus due to toxic exposure to DES (diethylstilbestrol) while in utero. The injury was unknown to her until years later — after she was married and attempted to have children. After holding the wife's claim for harm caused by exposure to a toxic product was not barred by the statute of limitations under discovery rule principles, the court also declined to apply an absolute bar to premarital injuries if the spouse seeking a loss of consortium claim could not know of the harm. Green, 136 Wn.2d 100-02.
In rejecting the majority rule as unfair under the specific facts of an unknown latent toxic injury, the Green court reasoned: (1) the husband could not have married a lawsuit if the wife did not yet know of her injury; (2) the husband could not assume a risk of which he had no knowledge; and (3) it is surely foreseeable that a future spouse or close relative might suffer loss of consortium damages. Id. at 101-02. The court concluded:
The best argument for rejecting the majority rule, however, is its fundamental unfairness in the toxic exposure context: loss of consortium damages should be available for a premarital injury if the injured spouse either does not know or cannot know of the injury.
Id. at 102.
The Kendalls contend this court should extend Green in favor of Heather Kendall as a prospective spouse because she and Mr. Kendall were living together as husband and wife before his injury, had already obtained a marriage license, and were waiting to marry only because they were saving money for a modest wedding and reception. We disagree.
Green is readily distinguishable from Ms. Kendall's case because she knew of Mr. Kendall's injuries when she married him nearly 20 months after the accident. And unlike Green, there is no latent injury here. This case clearly fits within the rationales for the general rule barring a loss of consortium claim for premarital injuries. The trial court was correct in dismissing Heather Kendall's claim on summary judgment.
C. Nicolas Edmonds's Loss of Consortium Claim
Did the trial court err in dismissing the loss of consortium claim of Mr. Kendall's future stepson, Nicolas Edmonds, on summary judgment?
In Ueland v. Pengo Hydra-Pull Corp., 103 Wn.2d 131, 140, 691 P.2d 190 (1984), the court recognized that, in cases of parental injury not resulting in death, a child has an independent common law cause of action 'for loss of the love, care, companionship and guidance of a parent tortiously injured by a third party.' The Ueland court pointed to an anomaly in the law at that time that RCW 4.20.020 allowed a child to recover for loss of consortium when a parent dies but not if the severely injured parent remains alive in a persistent vegetative state. And parents were allowed under RCW 4.24.010 to recover for loss of consortium for injury to a child. Ueland, 103 Wn.2d at 133-34. The court did not discuss rights of stepchildren. In 1985, however, the legislature amended RCW 4.20.020 to include stepchildren of the deceased as beneficiaries for wrongful death actions. The statute contemplates loss of consortium as a damage element. See Laws of 1985, ch. 139 §§ 1, 2.
The Kendalls contend that in light of the 1985 amendment that included stepchildren as wrongful death beneficiaries, Ueland should likewise be extended by analogy to include stepchildren in the class of beneficiaries entitled to bring a common law loss of consortium claim for a stepparent's injuries not resulting in death.
However, at the time of Mr. Kendall's accident, Nicolas was not Mr. Kendall's stepson. Moreover, since Nicolas's mother is not legally entitled to bring a loss of consortium claim, it stands to reason that Nicolas also has no cause of action. The trial court was correct in dismissing Nicolas Edmonds's loss of consortium claim on summary judgment.
CONCLUSION
The trial court's summary judgment order dismissing Mr. Kendall's negligence claim is reversed. The trial court's order denying Mr. Kendall's motion for summary judgment to declare him a non-employee of Wells as a matter of law is affirmed. Mr. Kendall's negligence claim against Wells (along with Wells's claim against its third party defendant Total Masonry) is remanded for trial. The trial court's summary judgment order dismissing Heather Kendall's and Nicolas Edmonds's loss of consortium claims is affirmed.
The majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
BROWN, J. and SWEENEY, A.C.J., concurs.