Schuchman v. Hoehn, 21060-0-III.

• Decision Date: 06 November 2003
• Docket Number: No. 21060-0-III.,21060-0-III.
• Parties: Deborah Louise SCHUCHMAN, individually and as guardian for Mallory Ray Webley, a minor, Appellant, v. Leon HOEHN and Leashia Hoehn, husband and wife, and the marital community comprised thereof, d/b/a Okanogan Ice Company, Respondents.
• Court: Washington Court of Appeals

79 P.3d 6

119 Wash.App. 61

Deborah Louise SCHUCHMAN, individually and as guardian for Mallory Ray Webley, a minor, Appellant, v. Leon HOEHN and Leashia Hoehn, husband and wife, and the marital community comprised thereof, d/b/a Okanogan Ice Company, Respondents.

No. 21060-0-III.

Court of Appeals of Washington, Division 3, Panel Two.

November 6, 2003.

D. Michael Tomkins, Attorney at Law, Seattle, WA, for Appellant.

J. Scott Miller, Miller, Devlin, McLean & Weaver PS, Spokane, WA, for Respondent.

SCHULTHEIS, J.

The Industrial Insurance Act immunizes employers from civil liability for most workplace injuries. RCW 51.04.010; Meyer v. Burger King Corp., 144 Wash.2d 160, 164, 26 P.3d 925 (2001). One exception created by statute allows a worker to sue for excess damages if the injury was caused by "the deliberate intention of his or her employer to produce such injury." RCW 51.24.020. Fourteen-year-old Mallory Webley was seriously injured while bagging ice at Okanogan Ice Company. The Department of Labor and Industries (L & I) determined that Mallory was an employee covered under the Act. Her mother, Deborah Schuchman, sued Leon and Leashia Hoehn, owners of Okanogan Ice Company, for damages. The Hoehns' motion for summary judgment dismissal on the basis of employer immunity under the Act was granted and Ms. Schuchman appeals, contending RCW 51.24.020 is unconstitutional as applied to injured minor workers. Because we find that the legislature intended to include minors in the class of workers subject to workers' compensation remedies and restrictions, and because we further find that the Hoehns were entitled to summary judgment as a matter of law, we affirm.

FACTS

During the summer of 2000, Mallory came to stay with the Hoehns and their daughter Kelsey. Mallory and Kelsey shared a job bagging ice at the Hoehns' ice company. On August 7, the girls were working at the ice-making machine. After Kelsey filled the plastic bags, Mallory stapled them shut. One bag was overfilled and Mallory took it to a bin to dump out the excess. This bin was equipped with an auger at the bottom of a funnel-shaped tub. The auger moved the spilled ice back into the ice machine for reuse. Mallory dropped the bag of ice into the bin, and while she attempted to retrieve it, her hands and arms were pulled into the auger. Kelsey quickly hit the emergency off switch, but Mallory's hands and arms were already severely damaged. According to Ms. Schuchman and another witness, Ms. Hoehn approached Ms. Schuchman at the hospital and stated, "We knew this was going to happen, we just didn't know when. We just didn't know how to fix it.... Leon has fixed it now with a mesh like web covering. We call it the Webley." Clerk's Papers (CP) at 47 (emphasis omitted).

An initial claim for medical coverage filed with L & I in August 2000 was rejected because the department could not substantiate that Mallory was an employee at Okanogan Ice Company. After further investigation, however, L & I determined that Mallory was employed in a job covered by industrial insurance and reversed the rejection order in October. Mallory appealed the determination of coverage in March 2001, but later withdrew the appeal and acknowledged that she was a covered employee.

In December 2001 Ms. Schuchman, in her capacity as Mallory's legal guardian, filed an amended complaint against the Hoehns for damages caused by knowing failure to use due care, failure to supervise Mallory, and knowingly allowing a minor to operate dangerous machinery with certainty of injury. Later that month, the Hoehns moved for summary judgment dismissal of the action, arguing that Ms. Schuchman's exclusive remedy was under Title 51 RCW, the Industrial Insurance Act. After a hearing in March 2002, the trial court found that Mallory was limited to recovery under workers' compensation and did not meet the requirements for the "deliberate intent" exception of RCW 51.24.020. The trial court granted the motion for summary judgment dismissal of the complaint and Ms. Schuchman now appeals.

EMPLOYER IMMUNITY FOR INJURIES TO MINOR WORKERS

Enacted in 1911, Washington's Industrial Insurance Act, Title 51 RCW, establishes compulsory state industrial insurance that provides swift compensation to injured workers to the exclusion of every other remedy. McIndoe v. Dep't of Labor & Indus., 144 Wash.2d 252, 256, 26 P.3d 903 (2001); Hildahl v. Bringolf, 101 Wash.App. 634, 640, 5 P.3d 38 (2000). As noted in Meyer, 144 Wash.2d at 164, 26 P.3d 925, the Act is a compromise between workers and employers, a compromise that "abolishes most civil actions arising from on-the-job injuries and replaces them with the exclusive remedy of industrial insurance benefits."

The coverage of Washington's Act is very broad, excluding "`every other remedy, proceeding or compensation,'" except those subject to specific exceptions in Title 51. West v. Zeibell, 87 Wash.2d 198, 201, 550 P.2d 522 (1976) (quoting RCW 51.04.010). One of those exceptions, RCW 51.24.020, provides that when an injury is the result of

the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.

In using RCW 51.24.020 to pierce the statutory shield protecting employers, the employee must prove first, that the employer had actual, certain knowledge that injury would occur; and second, that the employer willfully disregarded that knowledge. Birklid v. Boeing Co., 127 Wash.2d 853, 865, 904 P.2d 278 (1995); Judy v. Hanford Environmental Health Found., 106 Wash.App. 26, 31-32, 22 P.3d 810,review denied, 144 Wash.2d 1020, 32 P.3d 284 (2001).

Ms. Schuchman contends Washington's public policy protecting children is thwarted by Title 51, particularly by the requirement that a minor worker must prove that his or her employer had certain knowledge that injury would occur. She argues that RCW 51.24.020 is unconstitutional as applied because it fails to provide an exception for minor workers that takes into consideration their protected status.

Preliminarily, we note that Ms. Schuchman articulates no clear basis for her constitutional argument beyond asserting that RCW 51.24.020 violates equal protection and that strict or heightened scrutiny of the statute is required. She also fails to designate whether she bases her argument on the federal or the state constitutions. Consequently, we address only the federal equal protection analysis. See Harris v. Dep't of Labor & Indus., 120 Wash.2d 461, 476 n. 10, 843 P.2d 1056 (1993)

; Clark v. Pacificorp, 118 Wash.2d 167, 192, 822 P.2d 162 (1991). RCW 51.24.020 is presumed constitutional and Ms. Schuchman carries the burden of proving unconstitutionality beyond a reasonable doubt. Retired Pub. Employees Council of Wash. v. Charles, 148 Wash.2d 602, 623, 62 P.3d 470 (2003); Clark, 118 Wash.2d at 193,

822 P.2d 162.

The equal protection clause of the Fourteenth Amendment provides in part that "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const, amend. XIV, § 1. "Equal protection does not require that all persons be dealt with identically, but it does require that the distinction made have some relevance to the purpose for which the classification is made." In re Pers. Restraint of Stanphill, 134 Wash.2d 165, 174, 949 P.2d 365 (1998).

The first step in an equal protection analysis is to establish the appropriate standard of review. Willoughby v. Dep't of Labor & Indus., 147 Wash.2d 725, 739, 57 P.3d 611 (2002) (quoting Tunstall v. Bergeson, 141 Wash.2d 201, 225, 5 P.3d 691 (2000)). Washington's Industrial Insurance Act is generally recognized as economic legislation for the purposes of an equal protection analysis. Willoughby, 147 Wash.2d at 738-39, 57 P.3d 611; Clark, 118 Wash.2d at 193, 822 P.2d 162. Economic legislation that neither sets up a suspect class nor affects a fundamental right is subject to the rational basis test. Willoughby, 147 Wash.2d at 739, 57 P.3d 611; Harris, 120 Wash.2d at 477, 843 P.2d 1056. Suspect classifications include those based on race, alienage, or national origin. State v. Schaaf, 109 Wash.2d 1, 18, 743 P.2d 240 (1987). The class created by RCW 51.24.020—all workers injured by the deliberate intention of the employer—is not suspect, and the right to compensation under this statute does not implicate a fundamental right. See Provost v. Puget Sound Power & Light Co., 103 Wash.2d 750, 755, 696 P.2d 1238 (1985)

(the Act does not violate equal protection by immunizing negligent employers from civil suits).

Ms. Schuchman contends the legislature created a distinct suspect or semi-suspect class of minor workers when it adopted regulations barring minors from particular hazardous tasks and occupations and passed statutes protecting child welfare.¹ She contends RCW 51.24.020 illegally treats minor workers differently than minors who do not work, denying minor workers the protections due to them by law. In Schaaf, the court addressed an argument that "juveniles are a semi-suspect class because they are politically powerless and vulnerable to mistreatment by society." 109 Wash.2d at 18,743 P.2d 240. Rejecting that argument, Schaaf found that although minors cannot vote and thus are politically powerless, the social integration of minors—unlike the social insulation of minorities—means that they tend to be treated with concern and respect by the legislature. 109 Wash.2d at 18-19,743 P.2d 240 (quoting City of Cleburne, Texas v. Cleburne Living Ctr., 473 U.S. 432, 472 n. 24, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985) (Marshall, J., concurring and dissenting)). Citing the Cleburne plurality decision, Schaaf concluded that "juveniles form neither a suspect nor semi-suspect class for...