Authored by Karin Jones of Stoel Rives LLP and Hunter Ferguson
In Orris v. Lingley (pdf), the Court of Appeals held that an injured employee who accepted industrial insurance benefits without question is deemed to have acted within the course of employment and thus may pursue only those remedies by provided the Industrial Insurance Act (“Act”). Although the Act forecloses an employee who accepts benefits from bringing a tort claim premised on the allegation that he or she was actually acting outside the course of employment at the time of the injury, the Act permits such employee to institute a tort suit against a co-employee on the basis that the co-employee was acting outside the scope of his or her employment. Because a toxicology report (which was not objected to in the trial court) indicated that a co-employee was intoxicated, a material issue of fact existed as to whether such co-employee had acted outside the course of employment, thus precluding summary judgment.
After finishing work for the day at a construction job site, Paul Orris rode in a company truck driven by a co-worker, Matthew Lingley, to assist in returning the company truck to the their employer’s office. The vehicle crashed while Langley was driving, killing Langley and severely injuring Orris. A subsequent toxicology report showed traces of THC in Lingley’s system.
While Orris was in a coma after the accident, his father completed and submitted to the Washington Department of Labor and Industries (“L&I”) a form for industrial insurance benefits. The form indicated that Orris was performing his regular job at the time of the collision. Orris received benefits from L&I and did not attempt to reject or repay those benefits.
Orris later filed suit against Lingley’s estate, alleging that Lingley negligently caused the collision. Lingley’s estate moved for summary judgment, asserting that the Act provided the exclusive remedy for Orris’ injuries. The trial court granted the estate’s motion, dismissing Orris’ claim. Orris appealed.
The Court of Appeals, Division II, affirmed in part and reversed in part.
Pursuant to the Act, an injured employee can obtain industrial insurance benefits if injured in the course of his employment. Under the Act, such benefits “shall be in lieu of any and all rights of action whatsoever against any person whomsoever.” RCW 51.32.010. A worker who receives benefits has no cause apart from the statute except when specifically authorized by the statute. Tallerday v. Delong, 68 Wn. App. 351, 356, 842 P.2d 1023 (1993). Thus, an employee normally cannot bring a tort claim action for injuries negligently caused by a co-worker. Orris attempted to circumvent the exclusive remedy provision of the Industrial Insurance Act by arguing that neither he nor Lingley were acting in the course of employment when the collision occurred.
The Court of Appeals agreed with the trial court that Orris was acting within the course of his employment at the time of the crash because of his subsequent acceptance of industrial insurance benefits. Although Orris’ father filled out the L&I paperwork while Orris was unconscious, Orris did not repudiate or repay the resulting benefits in the ensuing years. The court relied on Orris’ failure to reject the benefits in reaching its conclusion, specifically noting that if Orris had taken action, the court “might be tempted to agree” that it would be inequitable to apply the exclusive remedy provision of the Industrial Insurance Act under the circumstances. But Orris’ continued acceptance of benefits bars his tort claim against Lingley’s estate – unless Lingley was acting outside the course of his employment.
The Court of Appeals concluded that a material question of fact existed with respect to the issue of whether Lingley was acting within the course of employment when he crashed the Caliber truck. As articulated in Flavorland Industries, Inc. v. Schumacker, 32 Wn. App. 428, 434, 647 P.2d 1062 (1982), an employee can be deemed to be acting outside the course of employment if he is so intoxicated that he has abandoned his employment. The toxicology report indicating the presence of THC in Lingley’s blood created a genuine issue of fact on that point. Critical to the Court Appeals’ analysis was the failure of Lingley’s estate in the trial court to object to the toxicology report’s admissibility or move to strike it. By not doing so, Lingley’s estate failed to preserve any argument on appeal that that the toxicology report was inadmissible.
In addition, an issue of fact remained regarding whether Lingley’s use of the Caliber vehicle was in furtherance of Caliber’s business, as commuting in a company-provided vehicle is not within the course of employment if the vehicle is provided solely for the employee’s convenience.
Following the holding in Evans v. Thompson, 124 Wn.2d 435, 555, 879 P.2d 938 (2004), that an injured employee can recover against a negligent co-worker if the co-worker was not acting within the course of employment, the court reversed the trial court’s decision in part and remanded the case for a determination whether Lingley was, in fact, acting in the course of employment at the time of the crash.