November 2014 Bar Bulletin
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November 2014 Bar Bulletin

Washington Supreme Court Preserves Integrity of Industrial Insurance Act

By Mark A. Behrens and Tiffany F. Lim


In September, the Washington Supreme Court issued a significant decision that preserves the integrity of the Industrial Insurance Act (IIA) - the state's workers' compensation law - in asbestos and other occupational disease cases. In Walston v. Boeing Company,1 a 5-4 decision, the majority rejected plaintiff's invitation to interpret the IIA's "deliberate injury" exception in a permissive manner that would have largely eviscerated the exclusive remedy provided by the IIA.

Under the "grand compromise" that produced the IIA in 1911, workers were given a no-fault compensation system for occupational injuries and employers were given immunity from lawsuits by workers with workplace injuries.2 The Legislature, however, created an exception to allow workers to sue employers that deliberately injure their employees. The IIA provides the exclusive remedy for workplace injuries unless a worker can prove that his or her injuries resulted "from the deliberate intention of his or her employer to produce such injury."3

Consistent with prior decisions, the Walston majority held that former Boeing employee Gary Walston could not bring a tort lawsuit for mesothelioma (a type of cancer) allegedly caused by workplace exposure to asbestos, because Walston could not prove that Boeing had "actual knowledge of certain injury" resulting from the asbestos exposure.4 Consequently, Walston had not shown that Boeing "deliberately intended" to injure him.5

For most of the IIA's history, the "deliberate intent to injure" exception was applied in cases of physical assault against an employee. In 1995, the Washington Supreme Court in Birklid v. Boeing Co.6 first considered the exemption in the context of a workplace exposure claim and held that "deliberate intention" means "the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge."7 The Court said it was "mindful of the narrow interpretation Washington courts have historically given to the ['deliberate intent to injure' exception], and of the appropriate deference four generations of Washington judges have shown to the legislative intent embodied in [the IIA]."8

In 2005, the Court, in Vallandigham v. Clover Park Sch. Dist. No. 400,9 reiterated that the "deliberate intent" standard "provides only a very limited exception to the IIA's workers' compensation scheme in circumstances where an employer deliberately intends to injure an employee."10 The Court added, "Even substantial certainty that employee injury will occur by virtue of an employer's action (or inaction) is insufficient."11 The Court also said that "[d]isregard of a risk of injury is not sufficient to meet the [Birklid test]; certainty of actual harm must be known and ignored."12 The court in Walston found the holdings from Birklid and Vallandigham to be "binding."13

In the context of asbestos, exposure is not certain to cause mesothelioma or any other disease, as the experts in Walston acknowledged. It may cause a risk of disease, but that is insufficient under the Birklid standard. Consequently, the majority in Walston concluded that the Court of Appeals had properly remanded the matter for entry of an order granting summary judgment to Boeing.

The Washington Supreme Court flatly rejected Walston's argument that the deliberate intention exception includes situations in which an employer knows that someone, but not necessarily the plaintiff, is certain to be injured.14 The Court also rejected Walston's argument that Boeing had actual knowledge of certain injury because individuals exposed to asbestos may be injured at the cellular level.15 The Court held that "an asymptomatic cellular-level injury ... is not itself a compensable injury;" the condition merely creates a risk of compensable injury.16 Thus, even if Boeing knew that asbestos exposure would cause an asymptomatic cellular-
level condition, the Birklid deliberate intention standard would not be met.

The four dissenting justices believed that Walston had alleged sufficient facts to survive summary judgment. In their view, Walston presented enough evidence of Boeing's knowledge of the hazards of asbestos at the time of Walston's exposure (1985) to raise questions of fact as to whether Boeing knew its employees were being injured and willfully disregarded that knowledge.17

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