Gorman v. Garlock, Inc., 52188-8-I.

CourtCourt of Appeals of Washington
Citation121 Wash.App. 530,89 P.3d 302
Decision Date03 May 2004
Docket NumberNo. 52188-8-I.,52188-8-I.
PartiesDonald R. GORMAN and Flaellen Gorman, husband and wife, Appellants, v. GARLOCK, INC.; Foster-Wheeler Energy Corp.; Uniroyal, Inc.; Metropolitan Life Insurance Co.; Asbestos Corporation Ltd.; Combustion Engineering, Inc.; Crown Cork & Seal Company, Inc.; Gasket Co.; Fraser's Boiler Service, Inc.; Riley Stoker Corp.; Saberhagen Holdings, Inc., Defendants, and Lockheed Shipbuilding Company and Todd Shipyards Corp., Respondents. Wilhemina Helton for herself and as Personal Representative for the Estate of Eddie Helton, a/k/a Eddie Hilton, deceased, Appellants, v. Todd Shipyards Corporation, Respondent, and Metropolitan Life Insurance Co.; Asbestos Corporation, Ltd.; Crown Cork & Seal Company, Inc.; Foster Wheeler Energy Corporation; Fraser's Boiler Service, Inc.; and Saberhagen Holdings, Inc., Defendants.

William Rutzick, Schroeter, Goldmark & Bender, P.S., Seattle, WA, for Appellant.

Robert H. Madden, William H. Beaver, Jr., Walter E. Barton, Karr Tuttle Campbell, Seattle, WA, for Respondent.


Donald and Flaellen Gorman and Wilhemina Helton, acting individually and as a personal representative of the estate of Eddie Helton, appeal the orders dismissing their cases against Todd Shipyards Corporation (Todd) and Lockheed Shipbuilding Company (Lockheed). They contend the trial court erred by ruling that they failed to state a claim under the Washington Industrial Insurance Act. But Washington law prohibits employees who are entitled to federal maritime workers' compensation from asserting state claims against their maritime employers. Gorman and Helton are entitled to federal maritime workers' compensation for injuries sustained during their employment with Lockheed and Todd. And while they could have a claim against a later land-based employer under the Washington act, the trial courts correctly ruled that they cannot make a claim against Todd and Lockheed under that statute.


From 1953 through 1975, Donald Gorman worked as a boilermaker, shipfitter, and superintendent in several shipyards and industrial sites throughout Washington. At various times during this period, Gorman worked at Lockheed Shipbuilding Company and Todd Shipyards where he worked with boilers insulated with products containing asbestos and in various ship parts containing asbestos. In 2001, Gorman learned he had lung cancer caused by asbestos exposure. He is currently being treated for the disease. Gorman and his wife instituted this action against Lockheed and Todd, asserting that both employers had control over the site where asbestos-containing products were used but failed to take corrective action to eliminate a dangerous condition that they knew or should have known existed. Lockheed and Todd moved to dismiss the case for failure to state a claim, and the trial judge granted the motion in February 2003.

Eddie Helton worked as a shipscaler at Todd from 1944 through 1969. During that time, he was exposed to asbestos and products containing asbestos. In 1984, Helton learned he also had lung cancer caused by asbestos exposure. He died from the disease in 1999. Helton's wife instituted this action against Todd, claiming that Todd knew an asbestos-related injury was certain to occur to shipscalers but willfully disregarded the knowledge by continuing to expose them to asbestos fiber. Todd moved to dismiss the motion for failure to state a claim, and the trial judge granted that motion in May 2003.

Both Gorman and Helton appeal. We consolidated their cases on appeal.


The trial courts dismissed these complaints for failure to state a claim under CR 12(b)(6). A dismissal under this rule is appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts that would justify recovery.1 A plaintiff's factual allegations are presumed to be true, and a court may consider hypothetical facts.2 CR 12(b)(6) motions "should be granted only `"sparingly and with care".'"3 Here, the trial judges ruled that Gorman and Helton failed to state a claim because their claims fell under federal maritime law, and RCW 51.12.100 required that they be dismissed. We review these orders de novo.4

I. Title 51 and the Longshore and Harbor Workers' Compensation Act

Title 51 RCW, also known as the Industrial Insurance Act (IIA), abolishes all civil actions for employment-related injuries.5 Employees may not sue their employers for injuries sustained on the job, and their only remedy is workers' compensation under the IIA.6 The legislature enacted this limitation to improve injured employees' remedies while decreasing expense to employers and the public.7 The only exception is RCW 51.24.020, which allows an employee to sue an employer where the employer has deliberately injured the employee. An employer acts with deliberate intent under this provision of the statute when it had "actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."8 RCW 51.24.020 is designed to deter employers from intentionally wrongful workplace behavior9 because employers who act egregiously "should not burden and compromise the industrial insurance pool."10

Gorman and Helton bring their claims against Todd and Lockheed under this provision of the statute. But under RCW 51.12.100(1), an employee "for whom a right or obligation exists under the maritime laws or federal employees' compensation act for personal injuries or death" may not bring any claim under a Title 51 provision. Lockheed and Todd argue that Gorman and Helton have a right to compensation under the federal Longshore and Harbor Workers' Compensation Act (LHWCA),11 a maritime statute, and thus may not bring a Title 51 action.12

Under the LHWCA, employers are liable for the disability or death of employees arising from injuries "occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel)."13 Employers are liable for these injuries regardless of fault.14 The LHWCA is remedial in nature15 and aims to "encourage the prompt and efficient administration of compensation claims."16 An employer's LHWCA liability is exclusive. That is, its LHWCA liability replaces all other liability to which the employer may be subject, unless the employer fails to pay compensation as required.17

Gorman and Helton correctly argue that federal and state remedies may coexist for maritime workers who are injured on land. In Sun Ship, Inc. v. Pennsylvania, the United States Supreme Court held that the Pennsylvania workers' compensation scheme could compensate an employee who sustained a land-based injury covered by the LHWCA.18 The Court noted that prior to 1972, local maritime injuries could be compensated under either state or federal law,19 and Congress did not intend to alter this accepted understanding when it amended the LHWCA in 1972.20 Drawing partly upon Sun Ship, the Washington Supreme Court in Stevedoring Services of America, Inc. v. Eggert also held that state law remedies may supplement the LHWCA.21 While case law holds that an entitlement under the LHWCA does not preclude a maritime employee from seeking relief under the workers' compensation statute, we must determine whether RCW 51.12.100(1) does preclude it. Both trial court judges concluded that it does.

II. Effect of RCW 51.12.100(1)

In Lindquist v. Department of Labor and Industries, this court considered whether a longshoreman killed at the North Terminal of the Port of Bellingham was covered by Title 51 or the LHWCA.22 We held that because the employee qualified for compensation under the LHWCA, RCW 51.12.100 expressly precluded a claim under Title 51.23 Similarly, in Esparza v. Skyreach Equipment Inc., we recognized that RCW 51.12.100 removed a shipyard employer from Washington's statutory scheme and placed it under the LHWCA.24 The Ninth Circuit has also held that Washington's workers' compensation scheme excludes workers covered by the LHWCA.25 The court observed that nothing in the federal legislation prohibited the state from excluding from coverage workers who are eligible for LHWCA benefits.26 "When Congress wants to require states to be primary providers of benefits or require claimants to pursue state benefits prior to or contemporaneously with federal benefits, it knows how to do so."27

Gorman and Helton nonetheless argue that these cases are inconsistent with the United States Supreme Court's holding in Sun Ship and the Washington Supreme Court's holding in Stevedoring. But the Sun Ship court considered only whether the LHWCA is the exclusive remedy, concluding that federal and state jurisdiction could be concurrent. The Sun Ship court did not even discuss the effects of a state statute like RCW 51.12.100, which precludes all state jurisdiction in certain instances.28 Similarly, Stevedoring did not address the relationship between RCW 51.12.100 and the LHWCA. Rather, it answered the question whether the LHWCA preempts state law. And in a footnote, the Stevedoring court recognized that, under RCW 51.12.100, Title 51's provisions do not apply to LHWCA-covered employees.29 Gorman and Helton are correct that the LHWCA does not preempt their RCW 51.24.020 claims. But RCW 51.12.100 does preempt them. Because they have the right to compensation under federal law, they cannot state a claim under the Washington statute.

III. Hypothetical Facts

Gorman and Helton argue that their claims are viable if the court considers certain hypothetical facts. In deciding a CR 12(b)(6) motion, a court is to consider "all conceivable facts" in support of the plaintiffs' allegations,30 including hypothetical facts.31 This is so even if the facts are presented for the first time on appeal.32 "Neither...

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2 cases
  • Gorman v. Garlock, Inc.
    • United States
    • United States State Supreme Court of Washington
    • August 18, 2005
    ...Court of Appeals. After consolidating their appeals, the Court of Appeals affirmed the orders of dismissal. See Gorman v. Garlock, Inc., 121 Wash.App. 530, 89 P.3d 302 (2004). That court held that RCW 51.12.100 bars LHWCA-covered workers from maintaining a claim under RCW 51.24.020. Because......
  • Zabka v. Bank of America Corporation
    • United States
    • United States State Supreme Court of Washington
    • January 19, 2006
    ...v. Pak lawsuit in this record is the caption on the deposition transcripts attached to the complaint. 3. Gorman v. Garlock, Inc., 121 Wash.App. 530, 534, 89 P.3d 302 (2004), aff'd, 155 Wash.2d 198, 118 P.3d 311 4. Haberman v. Washington Pub. Power Supply Sys., 109 Wash.2d 107, 120, 744 P.2d......

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