Ball-Foster Glass Cont. Co. v. Giovanelli

• Decision Date: 21 February 2008
• Docket Number: No. 77655-5.,77655-5.
• Citation: 177 P.3d 692,163 Wn.2d 133
• Court: Washington Supreme Court
• Parties: BALL-FOSTER GLASS CONTAINER COMPANY, Petitioner, v. Alfred GIOVANELLI and The Department of Labor and Industries of the State of Washington, Respondents.

177 P.3d 692

163 Wn.2d 133

BALL-FOSTER GLASS CONTAINER COMPANY, Petitioner, v. Alfred GIOVANELLI and The Department of Labor and Industries of the State of Washington, Respondents.

No. 77655-5.

Supreme Court of Washington, En Banc.

Argued June 27, 2006.

Decided February 21, 2008.

Amy L. Arvidson, Keehn Kunkler PLLC, Seattle, WA, for Petitioner.

Joseph Andrew Grube, Ricci Grube Aita & Breneman PLLC, Beverly Norwood Goetz, Ofc. of The Atty. Gen., Seattle, WA, for Respondents.

C. JOHNSON, J.

¶ 1 This case asks us to determine whether, under the traveling employee doctrine, a worker from out-of-state, injured while working in Washington, is entitled to workers' compensation benefits under the Industrial

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Alfred Giovanelli is a highly skilled and experienced firebrick mason. Although he resides in Pennsylvania, he regularly travels around the country to work on glass furnace rebuilds. Petitioner Ball-Foster Glass Container Company (currently known as Saint-Gobain Corporation) owns and operates 18 glass container manufacturing plants around the country, including one in Seattle. Saint-Gobain Corporation (St. Gobain) scheduled a rebuild of one of its glass furnaces at its Seattle plant in 2001. Pursuant to St. Gobain's contract with the International Union of Bricklayers and Allied Craftsmen Union, half of the masons used on the rebuild were referred by the local union hall and the other half were referred by Sonny Champ Refractories, a privately owned company with whom St. Gobain regularly contracts to provide labor and supervision on rebuild projects. Thus, half of the masons hired were local and half were from out-of-state. Sonny Champ, owner of Sonny Champ Refractories, would sometimes work as superintendent for St. Gobain's rebuilds and would regularly hire Giovanelli to work as his crew foreman. Giovanelli began working on St. Gobain projects in the 1980s and worked exclusively for St. Gobain for at least five years before being injured. Test. Giovanelli, Tr. (Apr. 25, 2003) at 21-24. Giovanelli worked on five rebuilds for. St. Gobain in 1998, three in 1999, and five in 2000. Giovanelli was working on his third rebuild for St. Gobain in 2001 when he sustained the injuries underlying this claim.

¶ 3 Under the union contract, St. Gobain paid for travel to and from the work location for all of the out-of-state masons, including Giovanelli. Giovanelli was also paid his hourly wage for eight hours while traveling to Seattle and an additional eight hours for traveling home. Neither the local or out-of-state masons signed any paperwork until they arrived at the plant to begin work. All of the masons were hired as Washington employees and deductions applicable to Washington employees were taken from their paychecks. St. Gobain paid the out-of-state masons a per diem of $78 for every day they were employed during the project, regardless of whether the mason was required to work that day. St. Gobain also provided Giovanelli with a rental car. St. Gobain points out that, unlike a typical St. Gobain employee, Giovanelli and the other out-of-state masons did not receive medical, dental, life insurance, or 401K benefits, nor were they reimbursed for the actual cost of hotel and meal expenses, over the per diem payment.

¶ 4 The day Giovanelli was injured he was with the superintendent of St. Gobain's Seattle project, Royce A. (Sonny) Champ. Both men were staying at the same hotel. In evidence submitted during Champ's testimony, Champ gave a statement to police that he and Giovanelli had noticed a sign that Sunday that read "Music in the Park." Board Ex. 9, Royce A. Champ statement to Det. W. Butterfield, Apr. 24, 2003.

¶ 5 While Giovanelli was expected to be available to work on Sundays, he was not scheduled to work on Sunday, August 12, 2001, the day of the accident. When the accident occurred, he and Champ had started to walk across the street directly in front of their hotel—and were headed to the nearby park—when Giovanelli was hit and injured by a moving car. Decision and Order of the Board, Undisputed Facts (July 31, 2003) at 2-3. Giovanelli sustained serious injuries, including multiple fractures, degloving of his skin, and a head injury that resulted in permanent blindness. Giovanelli applied for workers' compensation benefits and the Department of Labor and Industries (Department) ordered St. Gobain to allow the claim.¹ St. Gobain appealed the order and, following a hearing, the industrial insurance appeals judge issued a proposed decision and order affirming the Department's order. St. Gobain appealed to the Board of Industrial Insurance Appeals (Board). The Board denied the petition for review and adopted the industrial insurance appeals judge's proposed decision and order as its own. St. Gobain appealed to the King County Superior Court. The Department moved for summary judgment. The trial court initially denied the summary judgment motion but before trial was set to begin, granted it. Relying on Shelton v. Azar, Inc., 90 Wash.App. 923, 954 P.2d 352 (1998), the trial court found Giovanelli was "in the course of employment" when he was injured because he was traveling at the direction of his employer and his travel was for a purpose benefiting the employer. Based on this finding, the trial court found there was no issue of material fact and the case could be decided as a matter of law. CR 56(c).

¶ 6 St. Gobain appealed the trial court's decision to the Court of Appeals. The Court of Appeals affirmed the trial court, and St. Gobain petitioned this court for review. Ball-Foster Glass Container Co. v. Giovanelli, 156 Wash.2d 1024, 133 P.3d 473 (2006).

ISSUE

¶ 7 Does Giovanelli qualify for workers' compensation benefits under the traveling employee doctrine?

ANALYSIS

¶ 8 Washington, like most other states, adopted a workers' compensation act nearly a century ago. See 1 ARTHUR LARSON & LEX K. LARSON, LARSON'S WORKERS' COMPENSATION LAW § 2.08 (2006). Our workers' compensation act is a compromise between employers and workers. Dennis v. Dep't of Labor & Indus., 109 Wash.2d 467, 469, 745 P.2d 1295 (1987). Employers are liable for workplace injuries without regard to fault in exchange for limited liability, and employees forfeit common law remedies which may exceed that available under workers' compensation law, in exchange for swift and certain relief. Industrial injuries are viewed as a cost of production. Dennis, 109 Wash.2d at 470, 745 P.2d 1295.

¶ 9 Workers' compensation is a particularly dynamic field of legislative activity, as the forces of labor and industry assert their interests at each legislative session. However, while specific criteria vary from state to state and change over time, the general standard governing compensability of an injury is remarkably uniform and unchanging. The general coverage provision in the workers' compensation acts of 43 states as well as the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901, all share the language first used in the "British Compensation Act formula: injury `arising out of and in the course of employment.'" 1 Larson & Larson, supra, § 3.01.

¶ 10 Washington is one of the few states that depart from the formula. Dennis, 109 Wash.2d at 480, 745 P.2d 1295. Under Washington law, there is no requirement that an injury "arise out of employment, only that the worker was within "the course of employment" when injured.² RCW 51.32.010. The language of the statute shows the intent of the Washington Legislature to adopt a broader and more comprehensive statute than other states. Stertz v. Indus. Ins. Comm'n, 91 Wash. 588, 594, 158 P. 256 (1916). Although the Washington standard is more lenient, the practical significance of this distinction has been lessened as the "arising out of prong in other jurisdictions has evolved from something akin to a "proximate cause" requirement to a "but for" test. 10 Larson & Larson, supra, § 3.06 (observing that some jurisdictions now apply a broader unitary "work connection test" examining whether the injury is related to a risk incidental to employment).

¶ 11 As stated by the United States Supreme Court, "the statutory phrase `arising out of and in the course of employment,' which appears in most workmen's compensation laws, is deceptively simple and litigiously prolific." Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469, 479, 67 S.Ct. 801, 91 L.Ed. 1028 (1947).

¶ 12 Although each case must be resolved in view of the particular facts, over time a number of intermediate standards for evaluating whether an injury occurs "in the course of employment" have developed as courts apply this statutory language to cases presenting similar fact patterns. See Ridgway v. Combined Ins. Cos. of Am., 98 Idaho 410, 414, 565 P.2d 1367 (1977) (Bistline, J., concurring). Several doctrines address situations in which an employee is injured while off the employer's premises and/or not actually engaged in work duties.³ The common principle underlying each of these doctrines is that it is generally not necessary that a worker was actually performing the duties for which he or she was hired at the time of an accident in order for an injury to be compensable. It is sufficient if the injury arises out of a risk that is sufficiently incidental to the conditions and circumstances of the particular employment. In doubtful cases, the act is to be construed liberally in favor of compensation for the injured worker. Mclndoe v. Dep't of Labor & Indus., 144 Wash.2d 252, 257, 26 P.3d 903 (2001).

¶ 13 Although new to this court, the traveling employee doctrine is not a novel concept. The traveling employee doctrine, also known as the "commercial traveler rule," or the "continuous coverage rule," is the prevailing view throughout the United States. See Buczynski v. Indus. Comm'n, 934 P.2d 1169, 1173 (Utah Ct.App.1997). A traveling employee is generally considered to be in the course of employment continuously...