Fray v. Spokane County, 65236-8
| Decision Date | 12 March 1998 |
| Docket Number | No. 65236-8,65236-8 |
| Citation | 134 Wn.2d 637,952 P.2d 601 |
| Court | Washington Supreme Court |
| Parties | David P. FRAY, Individually and on Behalf of Alaina M. Fray, His Minor Daughter; Patricia K. Payne, Individually and on Behalf of Desiree C. Payne, Her Minor Daughter, Respondents, v. SPOKANE COUNTY and the Spokane County Sheriff Department, Petitioners. |
Reaugh, Fischnaller & Oettinger, Joseph E. Fischnaller, Seattle, for Respondents.
Law, Lyman & Daniel, Jocelyn J. Lyman, Olympia, Schwerin, Burns, Campbell & French, Lawrence R. Schwerin, Mulholland & Hickey, Thomas A. Woodley, Washington, Charles Wiggins, Bainbridge Island, Webster, Mrak & Blumberg, James H. Webster & Lynn Weir, Seattle, Amicus Curiae.
QUESTION PRESENTED
Whether a law enforcement officer under Plan II of the Law Enforcement Officers' and Fire Fighters' Act (LEOFF), RCW 41.26, may bring an action for negligence against the officer's employer for injury received in the line of duty when the officer has received workers' compensation benefits under the Industrial Insurance Act, RCW Title 51, for the same injury.
STATEMENT OF FACTS
The facts in this case are not disputed. Respondent David P. Fray is a law enforcement officer and deputy sheriff employed by Petitioner Spokane County Sheriff Department. 2 Respondent began his employment with the Spokane County Sheriff Department as a cadet in 1976 and was commissioned as a deputy sheriff in January 1978. 3
The pertinent events leading to this action for negligence occurred on October 21, 1993. 4 Respondent was on duty alone in his patrol car when he was dispatched to 4282 Big Foot Lane, approximately 30 miles north of Spokane, to respond to an altercation between an armed homeowner and A claim for workers' compensation benefits for Respondent Fray's injury was made on November 19, 1993 under the Industrial Insurance Act, RCW Title 51. 12 The Department of Labor and Industries authorized the claim. Respondent received workers' compensation benefits for his injury. 13
some loggers working nearby. 5 Another deputy was also dispatched to the scene, but was immediately called back because his shift was almost over. 6 Consequently, Respondent Fray arrived at the scene of the altercation without backup assistance. 7 He tried to convince the armed homeowner to lay down his rifle. 8 The homeowner refused. There was a struggle when Respondent Fray attempted to disarm him. During the struggle, Respondent was hit in the head with the butt of the homeowner's rifle. 9 He was later rushed to the hospital with a closed head injury. 10 [952 P.2d 603] Respondent claims that, as a result of the injury, he suffers "constant headaches, memory problems, multiple attention deficit problems, intermittent loss of control of his right hand, loss of the ability to speak coherently, retarded reaction times, judgment problems, as well as other problems, the full extent of which may not yet be known." 11
On January 17, 1995, Respondent Fray filed a lawsuit against Petitioners in the Spokane County Superior Court claiming his injury was caused by their negligence. 14
Petitioners moved for summary judgment. The Honorable Larry M. Kristianson granted the motion, stating:
Defendant's Motion for Summary Judgment is hereby granted dismissing Plaintiffs' claims with prejudice pursuant to the provisions of the exclusive remedies provided under the Industrial Insurance Act, Title 51.[ 15
The Industrial Insurance Act, RCW Title 51, and specifically RCW 51.04.010, effective since 1977, provides in relevant part:
Declaration of police power--Jurisdiction of courts abolished.... The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title; and to that end all civil actions and civil causes of action for such personal injuries and all jurisdiction of the courts of the state over such causes are hereby abolished, except as in this title provided.
(Emphasis added).
Respondent Fray appealed to the Court of Appeals, Division III, arguing that the Legislature expressly granted LEOFF Plan II members the "right to sue" under RCW 41.26.280 in 1971, and that the 1992 amendment purporting to take away that right was unconstitutional. 16 Respondent further asserted he had a right to sue his employer despite receiving workers' compensation benefits under the Industrial Insurance Act, RCW Title 51. 17 The Court of Appeals, the Honorable Dennis J. Sweeney writing, agreed with Respondent Fray on all relevant issues and reversed the trial court's grant of summary judgment, stating:
The Legislature granted LEOFF Plan II members the "right to sue" their employers for negligence. The attempted amendment by the Legislature in 1992 violates both sections 19 and 37 of article II of the Washington State Constitution. Deputy Fray's receipt of benefits under the Industrial Insurance Act also does not bar his right to sue his employer. We reverse the trial court's grant of summary judgment and reinstate Deputy Fray's cause of action.[ 18
Petitioners Spokane County and the Spokane County Sheriff Department then sought review by this Court, which was granted on July 8, 1997.
In 1969, the Legislature enacted a comprehensive benefits plan for police officers and fire fighters titled the "Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act," commonly referred to as LEOFF. 19 This system of benefits was codified as RCW 41.26. LEOFF was amended in 1971 to provide greater benefits to injured police officers and fire fighters than they would receive under the workers' compensation system. 20 One such benefit codified in former RCW 41.26.280 granted LEOFF members a "right to sue" their employers for negligence. 21 This new provision read as follows:
If injury or death results to a member from the intentional or negligent act or omission of [the member's]governmental employer, the member, the widow, widower, child, or dependent of the member shall have the privilege to benefit under this chapter and also have cause of action against the governmental employer as otherwise provided by law, for any Also in 1971 the Legislature removed all LEOFF members from coverage under the Industrial Insurance Act, RCW Title 51, and abolished all civil causes of actions for personal injury against their governmental employers "except as otherwise provided in this chapter." 23
excess of damages over the amount received or receivable under this chapter.[ 22
In 1977, the Legislature amended LEOFF to create two classes of members. 24 Police officers and fire fighters employed on or before September 30, 1977 constituted one class. Those employed after that date constituted another class. In a later amendment the Legislature designated these two classes as LEOFF Plan I and LEOFF Plan II. 25 Respondent Fray, being commissioned in January 1978, was classified as a Plan II member. Benefits for Plan I members remained the same, but benefits for Plan II members were reduced. 26 Plan II members, however, became eligible for industrial insurance benefits under RCW Title 51 in 1977. 27 The provision granting that eligibility was codified in RCW 41.26.480 and provided:
Notwithstanding any other provision of law, members shall be eligible for industrial insurance as provided by Title 51 RCW, as now or hereafter amended, and shall be included in the payroll of the employer for such purpose.
(Emphasis added).
The 1977 amendments added a new section codified as RCW 41.26.005 which listed sections applicable only to members in the retirement system "on or before September In 1991, the Legislature reorganized LEOFF into three sections: (1) provisions applicable only to Plan I members, (2) provisions applicable only to Plan II members, and (3) provisions applicable to both Plan I and Plan II members. 32 The right to sue provision, RCW 41.26.280, recodified as RCW 41.26.058, was included under the section applicable to both Plan I and Plan II members. 33
30, 1977" and specifically excluded members in the system "on or after October 1, 1977." 28 Former RCW 41.26.280 (now RCW 41.26.281), the right to sue provision, was not among the sections listed in RCW 41.26.005. 29 The right to sue thus remained available to both Plan I and Plan II members. RCW 41.26.005 was amended in 1979, 1985 and 1989. 30 In neither amendment, however, was RCW 41.26.280 (the right to sue provision) listed as one of the sections applicable only to Plan I members. 31
LEOFF was amended again in 1992. The Legislature directed the code reviser to remove RCW 41.26.058, the right to sue provision, from the section applicable to both plan members and place it under the section applicable only to Plan I members. 34 The right to sue provision, RCW 41.26.058, was then recodified as RCW 41.26.281.
Petitioners claim the relevant substantive rights for Plan Petitioners, however, argue the holding of the Court of Appeals conflicts with this Court's decision in Taylor v. Redmond. 38 In Taylor, a Plan I police...
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