# Reese v. Sears, Roebuck & Co.

> Washington Supreme Court · January 22, 1987 · 107 Wash. 2d 563

URL: https://www.frixlaw.com/law-library/cases/9626882

## Case

- **Full name:** Julius Reese, Et Al, Appellants, v. Sears, Roebuck & Co., Respondent; William Beauchamp, Appellant, v. Columbia Lighting, Inc., Respondent
- **Court:** Washington Supreme Court
- **Decided:** January 22, 1987
- **Citations:** 107 Wash. 2d 563; 731 P.2d 497
- **Precedential status:** Published
- **Opinion:** Dissent by Dolliver
- **Judges:** Utter, Pearson, Brachtenbach, Dore, Callow, Goodloe, Andersen, Durham, Dolliver
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Phillips v. City of Seattle, 111 Wash. 2d 903 (1989).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9626882

## How later opinions describe it (automated extraction)

- holding that a worker who was injured on the job and was subsequently denied accommodations for his disabilities could bring a claim for discrimination notwithstanding the exclusivity provisions of the Act
- holding that chapter 49.60 RCW permits individual employees to pursue their rights under the WLAD in court without first exhausting remedies in a collective bargaining agreement
- concluding that "any possible double recovery" problems from the two distinct wrongs can be "easily avoided"
- noting that double recovery can be prevented by deducting workers' compensation benefits from discrimination damages

## Opinion text

*581 Dolliver, J.
(dissenting)—At issue is whether, when the handicaps claimed by a worker are a result of an injury covered by industrial insurance, the employee covered by and compensated by industrial insurance may, in addition to recovering benefits under RCW 51.04 et seq., also recover against the same employer for alleged discrimination under RCW 49.60.
In allowing action under both statutes, the majority argues the "claimed injuries in this action [under the Law Against Discrimination] turn exclusively on the employers' deliberate behavior." Majority, at 572. While this in one sense may be true, the more important consideration is that the condition of plaintiffs which led to the alleged acts of discrimination by their employers was an identical injury to that for which plaintiffs were entitled to and did receive compensation under the Industrial Insurance Act, RCW 51.04.
These are not cases where plaintiffs are being denied employment because of preexisting handicapping conditions. If this were so, there would be no question but that actions could be brought under the Law Against Discrimination. Here, the injuries complained of have their roots in industrial injuries for which the exclusive remedy is under the Industrial Insurance Act. As the court has said:
We have consistently held that when an employer . . . pays its industrial insurance premiums pursuant to the Act the employer may no longer be looked to for recourse. The fund, created to provide for losses expected to occur, is the sole source of recovery.
With certain specified exceptions, the Act abolishes judicial jurisdiction over all civil actions for personal injuries arising between employees and the employers. In its place the State has provided employees with sure and certain relief regardless of the fault of due care of either the employer or employee. In effect, the Act "immunizes”, from judicial jurisdiction, all tort actions which are premised upon the "fault" of the employer vis-a-vis the employee. The determination to abolish judicial jurisdiction over such "immunized" conduct was a leg *582 islative policy decision. The wisdom of that decision is not a proper subject of our review.
(Citations omitted.) Seattle-First Nat'l Bank v. Shoreline Concrete Co., 91 Wn.2d 230, 241-42 , 588 P.2d 1308 (1978).
The Industrial Insurance Act provides not only for the exclusive remedy for workers but for their families as well. West v. Zeibell, 87 Wn.2d 198 , 550 P.2d 522 (1976). See also Provost v. Puget Sound Power & Light Co., 103 Wn.2d 750 , 696 P.2d 1238 (1985). We have also held the act extends its protection to include third party actions arising out of an industrial injury. Seattle-First Nat'l Bank v. Shoreline Concrete Co., supra.
The majority attempts to circumvent the specific and explicit language of this court by suggesting the Law Against Discrimination is not rooted in tort law. That laws against discrimination are rooted in tort law is exactly what this court has held. Anderson v. Pantages Theatre Co., 114 Wash. 24 , 194 P. 813 (1921).
The majority then argues that since the Industrial Insurance Act applies only to physical injury recovery for the nonphysical injury caused by the alleged discrimination to plaintiffs is not barred. While employees may be able to recover when the discrimination is the underlying cause of the injury, this is not the case before us. Whatever injuries plaintiffs suffered because of the alleged discrimination of their employers, the discriminatory acts were based on the effects of industrial injuries.
The majority justifies its action by citing the Michigan case of Boscaglia v. Michigan Bell Tel. Co., 420 Mich. 308 , 362 N.W.2d 642 (1984), and reciting the familiar statement that " [hjarmonizing legislative acts is a traditional responsibility of this court." Majority, at 572. As to Boscaglia , this court, as did the Michigan court, can rule by judicial fiat that a worker covered under the Industrial Insurance Act also is entitled to bring an action arising from the same injury under the Law Against Discrimination. To declare the Law Against Discrimination applicable here under the rubric of "harmonization" is no more than a convenient *583 disguise for judicial legislation.
The public policies enunciated by the Industrial Insurance Act and the Law Against Discrimination are legislative. The language in the Industrial Insurance Act is clear, unambiguous and exclusive. Except for specific legislatively authorized exceptions, the law for 75 years has been that recovery against an employer for an industrial injury is limited to the provisions of the Industrial Insurance Act. Even though the majority brushes aside the recent amendments to the Industrial Insurance Act as being ineffective and inapplicable, they give clear evidence that the Legislature wished to assist those whose injury, covered by industrial insurance, caused the handicap; and the Legislature provided that it be done under the provisions of the Industrial Insurance Act. This is surely a clear inference the Legislature intended the Industrial Insurance Act to be the exclusive remedy for all injuries which stem from an industrial injury.
The Industrial Insurance Act and the Law Against Discrimination are each broad and comprehensive; neither mentions the other. There is no legislative history of any kind as to whether the Law Against Discrimination should apply in circumstances such as the cases before us. If the Legislature wishes to amend the provisions of the Indus-tried Insurance Act so as to extend the rights of an injured worker to include an action under the Law Against Discrimination against an employer for consequences arising out of an industrial accident, it may do so. This ought to be done by the Legislature, however, and not by the court.
A profound and fundamental change in the scope of industrial insurance coverage is proposed by the majority. It may well be that this also would be the view of the Legislature. However, if it is the view of the Legislature, it ought to be implemented as the result of legislative design and action, not by the inadvertence of a random lawsuit. The legislative procedures, including full hearings and legislative debate, needed to discuss the issue and its consequences and to implement change are properly the pre *584 rogative of the Legislature and beyond the ken of this court.
Andersen and Durham, JJ., concur with Dolliver, J.
Reconsideration denied May 5, 1987.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9626882. Public record. Not legal advice.