# Evans v. Thompson

> Washington Supreme Court · September 1, 1994 · 124 Wash. 2d 435

URL: https://www.frixlaw.com/law-library/cases/9541249

## Case

- **Full name:** Diane Evans, Individually and as Personal Representative, Et Al, Petitioners, v. Robert J. Thompson, Et Al, Respondents
- **Court:** Washington Supreme Court
- **Decided:** September 1, 1994
- **Citations:** 124 Wash. 2d 435; 879 P.2d 938; 1994 Wash. LEXIS 498
- **Precedential status:** Published
- **Opinion:** Dissent by Dolliver
- **Judges:** Brachtenbach
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9541249

## How later opinions describe it (automated extraction)

- holding legal entity status presented question of fact for jury and dual persona doctrine may be invoked when defendants owned property as individuals and as legal entity completely separate from corporation
- holding legal entity status presented question of fact for jury and dual persona doctrine *392 may be invoked when defendants owned property as individuals and as legal entity completely separate from corporation

## Opinion text

*448 Dolliver, J.
(dissenting) — I would hold that the Plaintiffs’ exclusive remedy lies in the Industrial Insurance Act and would, therefore, affirm the trial coprt and Court of Appeals. The majority reverses the trial court’s dismissal of the Plaintiffs’ claims, and in so doing it misstates the issues, ignores relevant Washington case law, relies on inapposite cases from other jurisdictions, adopts a doctrine repeatedly rejected in Washington, and issues an opinion that is itself internally inconsistent. Furthermore, the majority never clearly articulates its holding, nor does it provide guidance for the trial court on remand. Moreover, I cannot agree on a policy level with the majority’s decision to weaken the exclusivity provisions of the Industrial Insurance Act and broaden third party liability. Therefore, I dissent.
Under the Industrial Insurance Act, both employers and co-workers are immune from common law suit. DuVon v. Rockwell Int’l, 116 Wn.2d 749, 753 , 807 P.2d 876 (1991). RCW 51.24.030(1) precludes a civil action against a third person who is in the "same employ” as the injured coworker. Wilson v. Boots, 57 Wn. App. 734, 736-37 , 790 P.2d 192 (1990) (citing Peterick v. State, 22 Wn. App. 163, 190 , 589 P.2d 250 (1977), review denied, 90 Wn.2d 1024 (1978), overruled on other grounds by Stenberg v. Pacific Power & Light Co., 104 Wn.2d 710, 719 , 709 P.2d 793 (1985)). Thus, the first issue to be addressed is whether it can be said, as a matter of law, that the Thompsons were "in the same employ” as Evans and Kanning due to their status as corporate officers.
First, I note that the majority’s treatment of this issue is careless and inconsistent. Early in its opinion the majority states:
[W]e hold that there are genuine issues of material fact as to whether Defendants, particularly Defendant wife, were in fact coemployees of the decedents. . . .
Majority, at 438. Later, the majority finds the wife was "not in fact an employee” (majority, at 445) and blithely states:
The wife was not employed by the corporation . . . [and,] [s]ince she had no job and no duties, it necessarily follows that she *449 could not be acting in the scope and course of a nonexistent employment.
Majority, at 445. As a threshold matter, these statements are not supported by the record. More disturbing, however, the majority has engaged in the very factfinding it initially reserved to the trial court (or the jury) in the further proceedings it has ordered on remand.
Aside from this mixed message given by the majority, I disagree with its basic approach to the issue at hand: namely, whether Robert and Amber Thompson, as corporate officers of Santana, were in the "same employ” as Evans and Kanning. Nowhere in its opinion does the majority attempt to interpret the relevant statutory language. For example, the majority does not outline what level of involvement a corporate officer must have to be considered "in the same employ” as an injured worker and, thus, be immune from third party liability. Nor does the majority clearly analyze the facts in such a way that would provide guidance to a trial court attempting to apply its holding. As to the status of Robert Thompson, the majority is even hesitant to recognize him as an employee of Santana, citing an incomplete record on this issue. Majority, at 445. I believe this narrow view of employment for the purposes of third party immunity would put individuals at unjustifiable risk of being held liable for workplace injuries. Rather than leave this issue to an unpredictable resolution by the factfinder based on a cumbersome (and at this point nonexistent) test, I would allow the trial court to find as a matter of law that corporate officers are "in the same employ” as an injured worker.
As pointed out by the Peterick court, the Legislature has not defined "in the same employ”:
Had the legislature desired to include provisions stating that one in the same employ might be sued if he or she were (1) not engaged in work at the site of the injury; (2) officers or directors of the corporation involved who were not reported as employees; or (3) officers or directors of more than just the corporation involved, it could have done so. . . .
Peterick, 22 Wn. App. at 190 . Because it did not do so, we must interpret the statute to further the Legislature’s goals. *450 We know that under RCW 51.04.010, civil actions arising out of work-related injuries are abolished and replaced with the exclusive remedies and benefits under the Industrial Insurance Act. We also know that the purpose of this statutory scheme is to avoid the costly and uncertain jurisdiction of the courts and to provide swift, certain relief for injured workers regardless of fault. In exchange for this guaranteed right of recovery, employees are restricted from bringing civil actions against their employers and co-employees for on-the-joh injuries. Furthermore, Washington’s statute has always been stringently construed to eliminate such claims. Thompson v. Lewis Cy., 92 Wn.2d 204, 209 , 595 P.2d 541 (1979).
With this in mind, I would apply a bright-line rule and find that Robert and Amber Thompson, as corporate officers, were "in the same employ” as Evans and Kanning, and, therefore, are immune from third party liability under the Industrial Insurance Act. See Kimball v. Millet, 52 Wn. App. 512, 513 , 762 P.2d 10 (1988) ("the Millets, as corporate officers, were Kimball’s coemployees”), review denied, 111 Wn.2d 1036 (1989); Peterick, 22 Wn. App. at 190-91 (finding the officers and directors to be "in the same employ” as the plaintiffs and, therefore, immune from suit). To hold that corporate officers are employees of a corporation as a matter of law would be consistent with the Industrial Insurance Act’s general policy of increasing the certainty and reducing the volume of litigation of workers’ injuries. It would also provide for uniform application of workers’ compensation laws in Washington and alleviate the possibility of factfinders reaching inconsistent conclusions in different cases.
The majority seems to be concerned that such a rule would unfairly deprive injured workers (or the state fund) from recovering from negligent third parties. This is simply not the case. Because coemployee immunity is not absolute, finding that a corporate officer is "in the same employ” does not end the analysis. It merely shifts into the appropriate arena the inquiry of whether liability should attach. Cases in which liability should attach can be resolved using exceptions such as the dual persona doctrine. The majority’s find *451 ing that a corporate officer is not necessarily in the "same employ” as an injured corporate employee, however, can indiscriminately strip an officer of immunity and leave the officer open to liability even for a work-related injury.
A hypothetical illustrates this point. Assume A is a corporate officer of the XYZ company, but is not on the payroll, does not perform a specific "job” for the company, and is not reported by XYZ as an employee for the purposes of industrial insurance. While at the XYZ plant for a meeting with other officers, A is involved in a work-related accident in which an XYZ employee is injured. The worker sues A for negligence. Under the majority’s holding, A is not an "employee” of XYZ, and is therefore not immune from third party liability — end of analysis, no further inquiry. This result was clearly not intended by the Legislature when it abolished civil actions arising out of work-related injuries.
I would hold that a corporate officer is immune from third party liability unless he or she possess a second persona "so completely independent from and unrelated to” his or her status as a coemployee that the law recognizes it as a separate person. Corr v. Willamette Indus., Inc., 105 Wn.2d 217, 220-21 , 713 P.2d 92 (1986) (quoting 2A Arthur Larson, Workmen’s Compensation § 72.81 (1984) (recognizing that, in the case of a corporate merger, the corporate employer may not be immune from suit by an employee if the merging corporation would have been liable to that individual)); Kimball v. Millet, supra at 513 (discussing the doctrine in the context of coemployee immunity). See generally 2A Arthur Larson, Workmen’s Compensation § 72.80 et seq. (1988).
Under the "dual persona” theory of liability, an injured worker may avoid the strict exclusivity provisions of the Industrial Insurance Act in a narrow group of cases in which an otherwise immune coemployee has breached a duty owed the injured worker in a completely separate and unrelated identity. The relevant inquiry is not whether a separate theory of liability could be argued against the same legal person, but whether the controversy involves a separate legal entity. The "dual persona” test is very stringent and, although it has *452 been recognized in Washington, it has never been successfully applied. See Corr, 105 Wn.2d at 220 ; Kimball, 52 Wn. App. at 513 .
This test is not met when the immune party merely has duties to the injured co-worker in two capacities. The more relaxed standard employed by the doctrine of "dual capacity” has been rejected in the Washington courts. See Corr, 105 Wn.2d at 220 (refusing, in a products liability case, to hold an otherwise immune employer liable in the capacity of manufacturer); Spencer v. Seattle, 104 Wn.2d 30 , 700 P.2d 742 (1985) (expressly rejecting dual capacity and holding that the City, in its capacity as employer, was immune from suit, regardless of separate duties it owed to its employee in the capacity of a municipality). We have rejected the dual capacity doctrine because little would remain of the Industrial Insurance Act’s exclusivity provision if employer and coemployee immunity could be overcome each time a separate theory of liability is available.
In his comprehensive treatise, Arthur Larson stresses the importance of exclusivity provisions in the successful operation of workers’ compensation schemes. See generally 2A Larson § 72.80 et seq. He has long advocated the rejection of the dual capacity doctrine, and he advocates only cautious use of the dual persona doctrine. 2A Larson § 72.80 et seq. Washington courts have agreed, holding that "[t]he immunities conferred by the act are not easy to avoid”. Kimball, 52 Wn. App. at 513 (citing Spencer, 104 Wn.2d at 32 (emphasizing that Washington courts have consistently recognized and reinforced the exclusive remedy provisions of the Industrial Insurance Act)).
Not once mentioning the Washington case law advocating only cautious and rare use of the dual persona doctrine, the majority sees an opportunity to further weaken third party immunity and suggests the Thompsons are subject to third party suit under this theory. It does so, however, by misstating the issue, misapplying the dual persona doctrine, and effectively adopting the "dual capacity” doctrine. The majority frames the question as follows:
*453 When the defendants are landowners and constitute a completely separate legal entity from the employer of a worker, are the defendants immune under the Industrial Insurance Act for breach of their duties as landowners? . . .
Majority, at 437. The majority has introduced a completely irrelevant inquiry into its analysis. The Thompsons never claim employer immunity derived from the corporation. Thus, the question is not whether the Defendants are separate legal entities from the corporate employer Santana, but whether their identities as individuals "in the same employ” as the deceased workers are completely independent from and unrelated to their identities as landowners so as to constitute separate legal entities.
The majority relies on easily distinguishable cases from other jurisdictions. For example, in Perkins v. Scott, 554 So. 2d 1220, 1221 (Fla. Dist. Ct. App. 1990) (a case referred to by the majority as "[djirectly in point” (majority, at 439)), the defendant argued he was entitled to pierce the corporate veil and receive his corporation’s immunity. The Defendants in the present case, however, do not claim employer immunity through their corporation. Rather, they claim immunity as individuals "in the same employ” as Evans and Kanning, an immunity created by the Legislature.
Furthermore, although the defendant in Perkins also argued he was immune from suit as a coemployee, the case is not relevant authority on this issue in Washington. The court applied the dual capacity doctrine and found that if the defendant as the owner of the premises had retained separate duties from his duties as an employee of the corporation, he could be held liable. As noted above, however, we have rejected the dual capacity doctrine in Washington and will not impose liability based on duties owed in a separate capacity. The Perkins court did not analyze the dual persona doctrine. See Perkins, 554 So. 2d at 1221 . The majority also mistakenly relies on LaBelle v. Crepeau, 593 A.2d 653 (Me. 1991), a case which applies the dual capacity doctrine.
In Doggett v. Patrick, 197 Ga. App. 420 , 398 S.E.2d 770 (1990), a corporate employee was injured when a suspended *454 ceiling fell and knocked him into a meat slicer. The employee sued the defendant, owner of the premises and executive officer of the corporation. Because the defendant had constructed the building before it was leased to the corporation, the court found there was an issue as to whether the defendant acted as a separate legal entity in constructing the building:
Evidence in the record creates at least an issue of fact to be determined by a jury regarding whether defendant’s knowledge, if any, of the allegedly defective condition came to him through his ownership of the premises as opposed to his status as president of the company which leased the premises from him.
Doggett, 197 Ga. App. at 422 . In the present case, however, Santana had exclusive possession of the premises and had in fact constructed the storm drain. Thus, there is no issue as to whether the allegedly dangerous condition existed on the premises before Santana took control of the property. The facts of Doggett are not analogous.
Additionally, Senken v. Eklund, 146 Misc. 2d 811 , 552 N.Y.S.2d 490 (Sup. Ct. 1990) does not support the majority’s holding. In Senken , a worker employed by a partnership was injured when working on a house owned by a partner and his wife, who was not a partner. Unlike the wife who as a nonpartner was not entitled to immunity, both Amber and Robert Thompson are corporate officers of Santana, as well as owners of the land Santana uses as a dump site for its fill material. It is noteworthy that the Senken court held the husband immune as a matter of law and did not apply the dual persona doctrine to relieve him of that immunity. Thus, this case more aptly supports my position than the majority’s. The majority’s reliance on this case is misplaced.
The majority not only cites inapposite cases, but it also cites cases which are inconsistent with each other. Some of the cases cited by the majority require a finding of fact regarding the application of the dual persona doctrine, while others find it unnecessary as a matter of law to apply the doctrine. The majority never clearly articulates its holding, and on remand the trial court will be left wondering how to proceed.
*455 I have pointed out the failings of the majority’s analysis on this issue, but again, as with the first issue, I disagree with the majority on a more fundamental level. I simply cannot justify an application of the dual persona doctrine in this case where the officers of the corporation are held personally liable for alleged negligence that was clearly business related.
I agree with Larson’s summary of why a landowner should not be held liable under the dual persona doctrine:
It is held with virtual unanimity that an employer cannot be sued as the owner or occupier of land[.]. . .
Apart from the basic argument that mere ownership of land does not endow a person with a second legal persona or entity, there is an obvious practical reason requiring this result. An employer, as part of his business, will almost always own or occupy premises, and maintain them as an integral part of conducting his business. If every action and function connected with maintaining the premises could ground a tort suit, the concept of exclusiveness of remedy would be reduced to nothingness.
(Italics mine.) 2A Larson § 72.82, at 14-245 to 14-251. This reasoning applies equally well to the Defendants, who as the sole corporate officers of Santana, own the premises and are immune as coemployees. Without a strict interpretation of the dual persona doctrine, coemployee immunity will be weakened to the point of meaninglessness.
The majority claims Larson’s statement does not apply to the present case, because the Thompsons, as individuals, are separate legal entities from the corporate employer. There are many closely held corporations such as Santana in this state, and I cannot agree with the majority’s conclusion that had the Thompsons not incorporated they would be immune, but since they have incorporated, they are not. In addition, I must emphasize again that the relevant inquiry in this case is whether their status as landowners is completely unrelated to their status as corporate officers so as to create a separate legal entity. Thus, the case cited by the majority, Couillard v. Van Ess, 152 Wis. 2d 62 , 447 N.W.2d 391 (Ct. App.), review denied, 451 N.W.2d 298 (1989), is inapplicable, because in that case, the premises were separately owned by *456 a distinct legal entity, namely a registered partnership. In the present case the Defendants each comprise only one legal entity, a property owner/corporate officer. Cf. 2A Larson § 72.82, at 14-247.
Washington’s only example of the dual persona doctrine in the context of landowner liability is Kimball v. Millet, 52 Wn. App. 512, 762 P.2d 10 (1988), review denied, 111 Wn.2d 1036 (1989). In Kimball , defendants Earl and Vina Mae Millet owned farmland and leased it to a farming corporation. As corporate officers, the Millets were immune from suit by their injured coemployee Kimball. (A fact the majority glosses over.) Kimball argued that the Millets should be held liable as landowners under the dual persona doctrine. Finding on several grounds that the Millets were not liable, the court rejected the "dual persona” theory of liability holding that the Millets, as landowners, did not have a second persona so completely separate as to be recognized as a separate person under the doctrine. Kimball, 52 Wn. App. at 514 (citing and adopting the reasoning of Heritage v. Van Patten, 59 N.Y.2d 1017 , 453 N.E.2d 1247 , 466 N.Y.S.2d 958 (1983)).
The majority contends that giving corporate officers and directors coemployee immunity and shielding them from landowner liability would unjustly relieve them of their duties as landowners. I emphasize, however, that coemployee immunity and the dual persona doctrine operate within the context of the workers’ compensation scheme in Washington, which is designed to limit employer and coemployee liability, as well as provide certainty of remedy to injured workers. By continuing to recognize the dual persona doctrine as a viable theory of liability, I certainly recognize that there may be a point at which the fact that a landowner and an injured party have the same employer becomes a matter too remote to justify immunity from liability. For example, had the accident occurred at a property owned by the Thompsons, but their ownership was completely unrelated to their involvement with Santana, I would not hesitate to apply the dual persona doctrine. This, however, is not such a case.
*457 The Thompsons’ identities as landowners are clearly related to their identities as Santana’s sole corporate officers. The record shows the Thompsons owned and maintained their land primarily as a dump site for Santana. Although they listed the property as their residence so that their children could attend Redmond schools, their ownership of the land was for the benefit of Santana, because Santana, as an excavating company, was in need of a site to dump its material. Furthermore, it is undisputed in the record that Santana performed all of the work on the Redmond property, and as part of its dumping and filling activities on the site, Santana built the storm drain. Under these facts, I cannot justify a conclusion that the Thompsons’ identities as landowners are sufficiently separate from and unrelated to their identities as coemployees to warrant holding them civilly liable under the dual persona doctrine.
In its conclusion, the majority finds that the Thompsons are subject to liability because they were not acting in the course of employment. I agree that in order to be immune from a third party tort claim, a coemployee must be acting in the course of employment at the time the injury occurs. Olson v. Stern, 65 Wn.2d 871, 877 , 400 P.2d 305 (1965); Taylor v. Cady, 18 Wn. App. 204, 206 , 566 P.2d 987 (1977). For example, under the Legislature’s definition of "[a]cting in the course of employment”, a coemployee cannot claim immunity from a tort claim based on an injury that occurred after work in the parking lot. RCW 51.08.013.
This inquiry, however, generally focuses on the time or place of the negligence that caused the injury, and the analysis is performed to determine whether a particular act was committed in the course of employment. See, e.g., In re Hamilton, 77 Wn.2d 355 , 462 P.2d 917 (1969) (discussing whether an employee was acting in the course of employment while walking between her work site and an employee parking lot); Belnap v. Boeing Co., 64 Wn. App. 212 , 823 P.2d 528 (1992) (employee not in the course of employment while driving from jury duty to work); Bergsma v. Department of Labor & Indus., 33 Wn. App. 609 , 656 P.2d 1109 (1983) *458 (employee not acting in the course of employment while injured in parking lot during his lunch period); Olson v. Stern, supra (coemployee liable because injury occurred outside of the work area while he was driving home); Taylor v. Cady, supra (although injury occurred in parking lot, coemployee was immune from liability because at the time of the alleged negligence he was performing work duties).
The Plaintiffs, however, premise liability on the Thompsons’ status rather than on a particular act. They argue that the Thompsons were not acting in the course of their employment because they breached their separate duties as landowners. To find that the Thompsons were not acting in the course of their employment because the duties they breached stemmed from a separate status would be, in effect, to adopt the dual capacity doctrine, which we have clearly rejected. See Corr v. Willamette Indus., Inc., 105 Wn.2d 217, 219-20 , 713 P.2d 92 (1986); 2A Larson § 72.81(c).
Because Santana’s use of the land was virtually exclusive, and because Santana had a duty to provide its workers with a safe workplace, any actions relating to the maintenance of the land allegedly giving rise to landowner liability on the part of the Thompsons would necessarily have been connected with Santana’s business. When a defendant’s status as landowner and status as individual "in the same employ” as an injured worker are sufficiently interconnected so as to avoid liability under the dual persona doctrine, as is the case here, I would hold that the scope of employment requirement has been met.
Finally, I must comment on the majority’s imprudent use of hypotheticals, which neither are accurate nor in any way advance the state of our workers’ compensation law. As noted above, a finding that an individual is "in the same employ” as an injured worker (a conclusion that is by no means a given in the majority’s hypothetical cases involving directors with no duties to their corporations). does not automatically shield the individual from liability. There will always be further inquiry, whether it is under the dual persona doctrine into the connection with the individual’s iden *459 tity as a coemployee, or under the scope of employment analysis into the time, place and circumstances of an allegedly negligent act. The majority’s suggestion to the contrary is simply wrong.
Thus, because the negligence of the actors in the hypotheticals is obviously unrelated to their (non)involvement with the corporate employers, they would clearly be liable to the injured workers as third parties under any formulation of the third party liability test. Furthermore, the majority’s reference to RCW 23B.08.010(3), which allows a corporation to eliminate a director’s specific duties, is clearly a red herring because both Amber and Robert Thompson are corporate officers as well as directors of Santana.
The majority addresses the issues of this case in a careless manner, and with a disregard both for existing Washington case law and for how its rulings will affect future workers’ compensation cases. For the reasons stated above, I cannot concur with the majority’s clear break from our long-held approach to strictly construe the exclusivity provisions of the Industrial Insurance Act.
Andersen, C.J., and Durham and Madsen, JJ., concur with Dolliver, J.
Reconsideration denied November 4, 1994.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9541249. Public record. Not legal advice.