Intersection of Worker's Comp and Private Tort Suits

A recent case of interest from Division II of the Washington Court of Appeals is entitled Orris v. Lingley (288 P.3d 1159).

This was a case where the appellate court reviewed the summary judgment dismissal of a tort suit in the trial court, arising from an accident that occurred with two co-workers while driving their employer’s automobile.  What made the case interesting was the interaction of worker’s compensation law with the law of private tort actions.  The general rule is that worker’s compensation insurance is installed in a state to completely replace private causes of action.  In other words, worker’s compensation is the exclusive remedy for someone that is hurt at work, with very few exceptions.

Some of these rare exceptions include the situation, as is present in this case, where a co-worker is hurt either while they are not acting in course of doing his or her job, or if he or she is injured by a co-worker who was not acting in the course of his or her employment.  In such a case, the hurt worker may maintain a private tort action against that other person.

In this case, there were two construction workers that were driving in a company-owned vehicle after completing a shift of work.  While driving, the driver lost control and both people were severely injured.  The driver died, and the passenger (now plaintiff) was hurt badly.

There were a couple of issues that turned out to be quite interesting.  The first issue was whether or not the driver was working in the course of his employment or not when the injuries occurred (at the time of the accident).  A toxicology report showed that the driver had some intoxicants in his system.  Moreover, the two men had finished working and were commuting, rather than driving in the furtherance of their employer’s business.  Why do these things matter?

Well, the question for the appellate court was whether there were genuine issues of fact relating to whether the driver was working in the course of his employment when the injury occurred.  As it turns out, there were two possible issues of fact.  The first derives from the statutory scheme.  Case law provides that if a person becomes so intoxicated, he or she may cease to be performing job duties.  The second comes from the fact that he was driving a company car.  The ordinary rule is that a person commuting to or from work is not considered to be working yet.  This rule does not change when the vehicle is owned by the company, provided that the company provides the vehicle for such commuting.  The analysis changes if the vehicle is provided for more than the convenience of commuting and instead so the person can perform his or her job duties.  This question of convenience or job duties is the grounds for this second issue of fact.

Here, there was some indication that the driver was driving the company car because he expected a carpool before the shift that was unavailable.  Possibly, the company allowed him to drive the truck for convenience and possibly for other reasons as well, and so the appellate court held that this was an issue of fact that precludes summary judgment.

For those two reasons, the case was remanded back to the trial court to further evaluate those issues of fact.  That said, there was one other issue that was resolved at the appellate level, and that is whether the passenger was acting in the course of his employment.  He could have also maintained a tort suit, if he could show that he was not acting in the course of his employment.  On this issue, he lost.  Why?

Because, after the accident, he was in a coma for an extended period of time, and during that time his application for worker’s compensation benefits was filled out by a family member.  He received benefits.  The appellate court held that, in light of the fact that he received such benefits and did not try to give them back or say that he did not deserve them, he could not now argue that he was not acting in the course of his employment.  In effect, he had opted into this exclusive remedy, and so now he was stuck with it.  Thankfully, he had other theories (discussed above) by which to show that the driver was not acting in the course of employment, and thereby maintaining his private tort suit.

(This post is intended to be educational and should not be construed as legal advice.  If you have questions or believe these issues affect you or your case, please contact an attorney).


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