DuVon v. Rockwell Intern.

• Decision Date: 04 April 1991
• Docket Number: No. 57139-2,57139-2
• Citation: 807 P.2d 876,116 Wn.2d 749
• Court: Washington Supreme Court
• Parties: , Prod.Liab.Rep. (CCH) P 12,896 Douglas K. DUVON, Respondent, v. ROCKWELL INTERNATIONAL, a corporation, d/b/a Rockwell Hanford Operations, Petitioner. En Banc

Page 749

116 Wn.2d 749

807 P.2d 876, Prod.Liab.Rep. (CCH) P 12,896

Douglas K. DUVON, Respondent, v. ROCKWELL INTERNATIONAL, a corporation, d/b/a Rockwell

Hanford Operations, Petitioner.

No. 57139-2.

Supreme Court of Washington,

En Banc.

April 4, 1991.

Davis Wright Tremaine, Stephen M. Rummage, Robert S. Gruhn, Seattle, for petitioner.

Critchlow & Williams, David E. Williams, Alex J. Skalbania, Richland, for respondent.

BRACHTENBACH, Justice.

Respondent, Douglas K. Duvon, sued his former employer Rockwell International Corporation (Rockwell), for injuries from a machine designed and constructed by Rockwell. The trial court denied petitioner Rockwell's motion for summary judgment. The Court of Appeals affirmed. Duvon v. Rockwell Int'l Corp., 57 Wash.App. 465, 788 P.2d 607 (1990). We affirm.

A brief statement of undisputed facts is necessary to frame the issues. Rockwell was a prime contractor with the United States Department of Energy (DOE) to operate the Hanford Nuclear Reservation. During its contract Rockwell designed and constructed equipment for on-site use, including portable exhausters.

In 1987 Westinghouse Hanford Company (Westinghouse) replaced Rockwell as prime contractor. Pursuant to the DOE contract, Westinghouse took possession of all equipment used by Rockwell at Hanford, including the portable exhausters. Respondent, who had worked for Rockwell since 1983, became an employee of Westinghouse in the same job classification. Five days after becoming an employee of Westinghouse, respondent was injured in an incident involving one of the portable exhausters.

The portable exhausters removed fumes from buried tanks to permit in-tank photographs. The exhausters had a series of heating and filtering systems to remove contaminants before they were passed though a radiation monitor and released through the exhaust stack. Respondent, an electrician, and others were called to determine why an exhauster which was hooked up to a tank had failed. Apparently an inlet butterfly valve remained open while an exhaust pump operated, thereby permitting the exhausting of gasses even though the ventilation/filter system had failed. Respondent was exposed to toxic levels of ammonia gas, the characteristic odor of which was masked by other gasses. According to an affidavit from respondent's medical expert, respondent has suffered serious permanent lung damage with substantial disability.

Respondent pursued an industrial insurance claim under his employment by Westinghouse. This separate action is respondent's election to seek damages from a third person (Rockwell) not in his same employ, as authorized by RCW 51.24.030(1). Respondent alleges negligence by his former employer, Rockwell, in design and construction of the exhauster and negligence in failure to provide adequate procedure guidance to shut the inlet butterfly valve when the ventilation/filter system was down. A Westinghouse critique report attributed the apparent cause of the incident to design, procedure inadequacy, and personnel.

In the trial court Rockwell's theory was that Rockwell was not a third party under the industrial insurance act and was therefore immune from suit under RCW 51.04.010. Alternatively, Rockwell argued that if it does not have industrial insurance act immunity, it is not liable under tort or product liability principles.

In its brief to the Court of Appeals, Rockwell stated the issue this way:

Is DuVon's exclusive remedy for his work-related injury a worker's compensation award, when he was injured on the worksite by equipment built by Rockwell, and when the equipment was built especially for the job site and never entered the stream of commerce?

Brief of Appellant, at 1.

In its petition for review brief Rockwell reframed the issues as follows:

A. Whether Rockwell owed a duty of care to persons other than its own employees in building equipment solely for use on its worksite, and not for resale into the stream of commerce?

B. Whether Douglas Duvon, who was a Rockwell employee until five days before his injury, can assert a claim against Rockwell for third party liability under the worker's compensation statute, even though Duvon was injured while working at the same job classification, pay rate and worksite as he had while employed by Rockwell?

Brief of Petitioner (Petition for Review), at 1.

Throughout, petitioner has relied heavily upon Corr v. Willamette Indus., Inc., 105 Wash.2d 217, 713 P.2d 92 (1986).

We restate the issues:

(1) May a former employer be a third party under RCW 51.24.030(1) when the employee is injured by a device designed and constructed by the former employer and when the employee is injured 5 days after he is employed by a company which succeeded, by contract, to possession and use of the faulty machine? We hold the former employer is a third party and therefore subject to suit.

(2) Does a former employer which allegedly was negligent in design, construction and in establishing operational procedures for a machine owe a duty to a former employee injured while using the machine in the employ of another, when the former employer was not a commercial manufacturer of such machine and the machine was not put into the stream of commerce? We hold that there may be such duty. The rationale of Corr v. Willamette Indus., Inc., supra, is not applicable.

This case is before us on denial of a motion for summary judgment. "Summary judgment will be granted only where the pleadings, affidavits, depositions and admissions on file demonstrate that there is no genuine issue as to any material fact and the party bringing the motion is entitled to judgment as a matter of law." Christen v. Lee, 113 Wash.2d 479, 488, 780 P.2d 1307 (1989). The facts of the present case are not at issue. Therefore, petitioner is entitled to judgment as a matter of law only if it was immune from common law suit or was not negligent. The only issue pertaining to negligence raised on appeal is whether petitioner owed a duty of care to respondent. Whether such a duty is owed is a question of law. Pedroza v. Bryant, 101 Wash.2d 226, 677 P.2d 166 (1984). Likewise, under the uncontested factual circumstances of this case, the immunity issue is a question of law. See Reese v. Sears, Roebuck & Co., 107 Wash.2d 563, 565, 731 P.2d 497 (1987). On summary judgment this court takes the position of the trial court, reviewing questions of law de novo. See Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985).

I. Immunity

Rockwell claims that it is immune from common law suit under the exclusive remedy provision of the industrial insurance act. RCW 51.04.010. RCW 51.24.030(1) provides an exception to this immunity if the person who caused the injury is a third person, "not in a worker's same employ", in other words, an employer or co-worker.

Petitioner argues that it is entitled to immunity under the industrial insurance act even though it is no longer respondent's employer. This argument is based on the fact that petitioner was respondent's employer until 5 days before the accident. During all that time, petitioner had fulfilled its industrial insurance obligations. Petitioner therefore argues that to not allow it protection here is to effectively deprive it of the protection it paid for while respondent worked for it.

This argument is so meritless that it does not warrant response, aside from noting that respondent was not petitioner's employee when the accident took place. See RCW 51.04.010; 2A A. Larson, Workmen's Compensation § 65.13 (1989). ("The controlling fact in establishing exclusiveness is the relationship of the parties at the time of occurrence of the injury. Their relationship at other times, such as the time of the employer's misconduct ... is immaterial." (Footnote omitted.))

Nonetheless, petitioner cites two cases which it contends stand for the proposition that some third parties, such as petitioner, can claim an employer's immunity under the proper circumstances. Brief of Petitioner (Petition for Review), at 17. In Wolf v. Scott Wetzel Servs. Inc., 113 Wash.2d 665, 782 P.2d 203 (1989), the issue was whether an injured employee could bring a third party action against the claims administrator of a self-insured employer for wrongful delay or termination of workers' compensation benefits. The court held that the employee could not bring a civil action because the claims administrator was essentially the employer's agent for purposes of administering the industrial insurance laws. The claims administrator was treated as the employer for purposes of immunity because the claims administrator represented the employer. This is not the case here. Petitioner, the former employer, does not represent Westinghouse, the present employer, in any capacity. Rockwell and Westinghouse are entirely separate entities. Rockwell has no connection with Westinghouse for purposes of administering the industrial insurance laws: Wolf is not even relevant.

Petitioner also relies on Coulter v. State, 93 Wash.2d 205, 608 P.2d 261 (1980), where the court held that an injured worker could not sue an employee of the Department of Labor and Industries (Department) who had inspected a defective machine immediately before the accident in which the employee was injured. The primary basis for that decision was that RCW Title 51 had abolished civil jurisdiction over industrial insurance claims except as provided by that Title and RCW Title 51 did not provide for suits against the Department. In support of this interpretation, the court noted that the Department is often required to bring third party actions on behalf of employees who are not diligent in pursuing their claims. The court found that the Legislature could not have intended the Department to sue itself as a third party. Therefore, far from finding that the Department of Labor and Industries enjoyed the employer's immunity from suit, as defendant claims, the court found that the...