Duvon v. Rockwell Intern. Corp. (Rockwell Hanford Operations)
| Decision Date | 05 April 1990 |
| Docket Number | No. 9852-4-III,9852-4-III |
| Parties | Douglas K. DUVON, Respondent, v. ROCKWELL INTERNATIONAL CORPORATION (ROCKWELL HANFORD OPERATIONS), Petitioner. |
| Court | Washington Court of Appeals |
Robert S. Gruhn, Davis, Wright & Jones, Seattle, for petitioner.
David Williams, Critchlow & Williams, Richland, for respondent.
Robert Duvon brought this negligence action against Rockwell International, his former employer, for damages for injuries he incurred at work when a machine manufactured by Rockwell allegedly malfunctioned. 1 At the time of the accident, Mr. Duvon worked for Westinghouse Hanford Company, which had succeeded Rockwell just 5 days before as the government contractor on the Hanford Project. Rockwell unsuccessfully moved for summary dismissal, contending that Mr. Duvon's exclusive remedy was workers' compensation. We granted discretionary review to consider whether the policy expressed in Corr v. Willamette Indus., Inc., 105 Wash.2d 217, 223, 713 P.2d 92 (1986) precludes Mr. Duvon's action. We hold that Corr is distinguishable and affirm.
Willamette Industries, the defendant in Corr, had absorbed Corco, Inc., in a 1977 merger. It acquired Corco's plant and inventory, including two bulk bin compressor units which had been designed and built by Corco employees and used exclusively in Corco's manufacture of cardboard boxes. Willamette also succeeded to all of Corco's liabilities and obligations.
In 1980, Willamette's subsidiary employed Mr. Corr, who subsequently was injured while cleaning one of the bulk bin compressor units. Mr. Corr initiated a products liability action against Willamette, but the action was dismissed on the ground that the workers' compensation act provided the exclusive remedy to an injured employee.
On appeal, Mr. Corr contended that Willamette was a third person under RCW 51.24.030, citing the dual persona doctrine. Under that doctrine, "[a]n employer may become a third person, vulnerable to tort suit by an employee, if--and only if--he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate person." Corr at 220-21, 713 P.2d at 94-95 (quoting 2A A. Larson, Workmen's Compensation § 72.81 (1983)). Stated differently, the employee is not suing his employer, but rather the successor to the liabilities of the alleged tortfeasor. Corr, at 221, 713 P.2d at 95. The obligation arises out of an independent business transaction, not the employment relationship. See Kimzey v. Interpace Corp., Inc., 10 Kan. App.2d 165, 694 P.2d 907 (1985); Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S.2d 879 (1980); Schweiner v. Hartford Accident & Indem. Co., 120 Wis.2d 344, 354 N.W.2d 767 (Ct.App.1984) for cases applying the dual persona doctrine in the context of corporate mergers.
The court was not persuaded that the doctrine applied in the circumstances presented in Corr. It stated at pages 222-23, 713 P.2d at 95-96:
The doctrine rests on the premise that if the merging corporations had not merged, the injured claimant could have sued the manufacturing corporation as a third person tortfeasor. Under the facts of this case, however, an injured claimant never could have sued Corco as a third person because Corco had no liabilities or obligations flowing to Willamette's employees. The two bulk bin compressor units were not manufactured for resale or entry into the stream of commerce. From the time of installation until merger, both units remained in Corco's workplace.
Only by virtue of the merger did the defective plant equipment transfer from Corco to Willamette. Thus, absent the merger, Corr could have been injured by this machinery only if he had been an employee of Corco. As an employee of Corco, however, Corr would be limited to the exclusive remedies of the workers' compensation act.... Because Corco could not be subject to third person liability, such liability cannot be imposed upon Willamette simply because the two corporations merged.
(Citations omitted.) 2
Rockwell contends that Corr 's "stream of commerce" theory is applicable to the situation here. According to Rockwell, it never placed the allegedly defective equipment in the stream of commerce; thus, it never owed obligations relative to the equipment to persons other than its employees. Rockwell argues that an obligation cannot now arise simply because Westinghouse has succeeded it as the government contractor at the Hanford project.
Rockwell's comparisons ignore the fact that the plaintiff in Corr was suing his employer; Mr. Duvon is not. The reasons given in Corr for not allowing an injured worker to sue his present employer do not justify protecting former employers from actions based on torts committed after the employment relationship has ended. At least two cases from other jurisdictions support this conclusion. Konken v. Oakland Farmers' Elevator Co., 425 N.W.2d 302 (Minn.Ct.App.1988); Hull v. Aurora Corp., 89 A.D.2d 681, 454 N.Y.S.2d 39 (1982).
In Hull, the plaintiff was injured while operating a casting machine for his employer, F & R Die Castings Co., Inc. F & R had acquired the machine and the plant from defendant Aurora Corporation in 1976. The plaintiff had been an employee of Aurora prior to the acquisition. The court upheld the denial of Aurora's motion for summary judgment, stating at 454 N.Y.S.2d 40:
[W]e do not see how Aurora can attempt to use section 11 of the Workers' Compensation Law as a defense since plaintiff's injury did not arise "out of and in the course of" his employment with Aurora (Workers' Compensation Law, § 10). In this commonlaw action brought for injuries sustained in 1978, Aurora and its related business entities stand as third parties rather than employers in relation to plaintiff and thus cannot use the fortuity of a prior employment relationship as the basis for invoking section 11 as a defense.
In Konken, the plaintiff, while in the employ of Land O'Lakes, was injured by a machine installed by his former employer, Oakland Farmers' Elevators. The court refused to dismiss an action against Oakland, reasoning at 425 N.W.2d at 305:
The [Workers' Compensation] Act defines "employer" as "any person who employs another to perform a service for hire." Minn.Stat. § 176.011, subd. 10. The definition is cast in the present tense and would not appear to include a former employer whose contractual relationship with the employee has ended and who no longer employs the worker "to perform a service for hire." Absent an express legislative intention to extend the restriction on causes of action against former employers, we are reluctant to do so.
This analysis is consistent with policies of the Act. The third-party action is generally permitted because, "as between the employee and the stranger, there has been...
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DuVon v. Rockwell Intern.
...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 A brief statement of undisputed facts is necessary to frame the issues. Rockwell was a prime contractor with the ......
- Duvon v. Rockwell Intern. Corp.