December 2014 Bar Bulletin
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December 2014 Bar Bulletin

Letters to the Editor




Dear Editor:

I write to comment briefly on the article "Washington Supreme Court Preserves Integrity of Industrial Insurance Act" in the November issue. The authors announce that the Walston v. Boeing decision is based on "sound public policy," and that the Court's majority "deserves recognition for following the rule of law and respecting the 'grand compromise' that has allowed the [Industrial Insurance Act] to work for over a century."

I argued the Walston v. Boeing case for the Walston family. The above-referenced article, authored by out-of-state lawyers, appears aimed to bolster the Court's majority with respect to an opinion that is quite precarious, as Justice Wiggins' dissent (signed by four justices) makes clear. Because the case is still pending before the Court, my remarks will be brief.

Both the authors and I agree that the "deliberate intent" exception to the comprehensive compensation scheme established by the Industrial Insurance Act is a narrow exception intended for "egregious" cases. We part ways in what constitutes an "egregious" case.

For example, the authors state that an employer does not act with deliberate intent when it knows that "someone, but not necessarily the plaintiff, is certain to be injured." Yet that was precisely the circumstance in Birklid v. Boeing Co., 127 Wn.2d 853, 865, 904 P.2d 278 (1995), the Court's leading case. In Birklid, the Court held that Boeing deliberately intended injury when it knew that exposing workers to phenolic resins without adequate ventilation had caused injuries in the past and predictably would cause them in the future, even though Boeing did not know which employees (including the plaintiffs) would get sick when Boeing elected to force its employees to continue to suffer such toxic insults.

Birklid stands for the proposition that an employer who shoots his gun into a crowd of employees and who does not know which employee will be hit by his bullet is as culpable as an employer who points the gun at a specific employee and fires.

Would an employer be subject to the deliberate intent exception if it forced a worker - without any protective clothing - to move patients suffering from the Ebola virus? According to the authors and the majority opinion, the answer would be "No" because the employer will not know with certainty that the unprotected employee will contract Ebola, even though the employer knows the patient has Ebola, knows how Ebola is transmitted, and knows that the employee needs protective clothing to prevent disease transmission.

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