Taylor v. City of Redmond, 44740

• Decision Date: 01 December 1977
• Docket Number: No. 44740,44740
• Citation: 89 Wn.2d 315,571 P.2d 1388
• Parties: James W. B. TAYLOR, Appellant, v. The CITY OF REDMOND, a Municipal Corporation, and R. W. Sheehan and Jane Doe Sheehan, his wife, and the marital community composed thereof, Respondents.
• Court: Washington Supreme Court

Page 315

89 Wn.2d 315

571 P.2d 1388

James W. B. TAYLOR, Appellant, v. The CITY OF REDMOND, a Municipal Corporation, and R. W Sheehan and Jane Doe Sheehan, his wife, and the marital community composed thereof, Respondents.

No. 44740.

Supreme Court of Washington, En Banc.

Dec. 1, 1977.

Cushman & Holt, Richard M. Holt, Issaquah, John P. Cogan, Redmond, for appellant.

Ralph I. Thomas, Kirkland, John D. Lawson, Redmond, for respondents.

HICKS, Associate Justice.

This case is certified to this court from the Court of Appeals, Division One. Plaintiff (appellant), a police officer of the City of Redmond, sues a fellow officer and the city for negligence. The case involves the application of RCW 41.26.270 and .280 of the Washington Law Enforcement Officers' and Fire Fighters' Retirement System Act (LEOFF), together with some consideration of RCW 51.04, Industrial Insurance Act (workmen's compensation). The trial court dismissed the action for lack of subject matter jurisdiction.

Appellant was shot in the foot by a fellow officer while the two were on duty. Under LEOFF he received full salary while he recovered and reimbursement for his medical expenses. He then brought this negligence action under RCW 41.26.280 (LEOFF), which provides:

If injury or death results to a member from the intentional or negligent act or omission of his governmental employer, 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 excess of damages over the amount received or receivable under this chapter.

(Emphasis ours.)

Respondent city asserts that all civil actions against an employer or fellow employee are abolished under the workmen's compensation act except for intentional acts of the employer. RCW 51.04.010 abolished all common law actions by employees against their employers, except for intentional acts of the employer for which a cause of action is statutorily created under RCW 51.24.020.

The issue thus presented is whether police and fire fighters remain under the umbrella of the previously enacted workmen's compensation act in regard to the abolishment of negligence actions, although in the subsequently enacted LEOFF chapter the 1971 legislature specifically provided a cause of action for negligence. In other words, does LEOFF supersede workmen's compensation insofar as police and fire fighters are concerned? We believe it does. Hence, we reverse the trial court and remand for trial.

Formerly by statute, long lists of occupations were classified by the legislature as extrahazardous and thereby covered by the workmen's compensation act. If an employee was not working at an occupation classified as extrahazardous, he was not within the act regardless of the nature of the duties he was actually performing. Thompson v. Department of Labor & Indus., 194 Wash. 396, 78 P.2d 170 (1938), and cases therein cited.

That is no longer the law. Currently, the act includes all employments within its coverage except those specifically excluded under RCW 51.12.020. Unfortunately, the legislature neglected to specifically exclude the occupation of city police officer, and that oversight becomes the basis for the trial court's actions and respondents' contentions. Respondents also point to Laws of 1972, 1st Ex. Sess., ch. 43, § 8, amending RCW 51.12.050, which continues to make reference to peace officers in the identical language that has been used in the act since 1911, ¹ as evidence that one in appellant's position is within the scope of that act.

Respondents cite State ex rel. Fletcher v. Carroll, 94 Wash. 531, 162 P. 593 (1917), as authority for their position. In Fletcher, we held municipal employees, engaged in work that would have been classified as "extrahazardous" but for the fact they worked for a municipal employer, were within the scope of the workmen's compensation law to the extent of abolishing an action against their employer, even though they did not take benefits under the law. However, Fletcher was decided before LEOFF was enacted, therefore it has no bearing on the statutory construction issue before us now.

We read RCW 41.26.270 as removing law enforcement officers and fire fighters from coverage under the workmen's compensation act:

The legislature of the state of Washington hereby declares that the relationship between members of the law enforcement officers' and fire fighters' retirement system and their governmental employers is similar to that of workmen to their employers and that the sure and certain relief granted by this chapter is desirable, and as beneficial to such law enforcement officers and fire fighters as workmen's compensation coverage is to persons covered by Title 51 RCW. The legislature further declares that removal of law enforcement officers and fire fighters from workmen's compensation coverage under Title 51 RCW necessitates the (1) continuance of sure and certain relief for injuries, which the legislature finds to be accomplished by the provisions of this chapter and (2) protection for the governmental employer from actions at law; and to this end the legislature further declares that the benefits and remedies conferred by this chapter upon law enforcement officers and fire fighters covered hereunder, shall be to the exclusion of any other remedy, proceeding, or competition for personal injuries, caused by the governmental employer except as otherwise provided by this chapter; and to that end all civil actions and civil causes of actions by such law enforcement officers and fire fighters against their governmental employers for personal injuries are hereby abolished, except as otherwise provided in this chapter.

(Emphasis ours.) In RCW 41.26.280 the legislature allowed law enforcement officers and fire fighters a cause of action as otherwise provided by law for both negligent and...