CITE: 52 Wn. App. 512, 762 P.2d 10
KIMBALL v. MILLET
CAUSE NUMBER: 10508-0-II
FILE DATE: September 29, 1988
CASE TITLE: Clayton Kimball, et al, Respondents, v. Earl Lamar Millet, et al, Petitioners.
[1] Industrial Insurance - Statutory Provisions - Construction - Exceptions to Immunity. Exceptions to immunities granted by the Industrial Insurance Act (RCW Title 51) are construed narrowly.
[2] Industrial Insurance - Third Person Action - Dual Persona Doctrine - Coemployee. The dual persona doctrine, which provides an exception to industrial insurance immunity for persons possessing multiple independent statuses recognized by the law as separate legal entities, cannot be applied where a coemployee is immune from suit under the Industrial Insurance Act.
[3] Landlord and Tenant - Duty - Scope - Employee of Tenant. A lessor owes no greater duty to an employee of the lessee than he owes to the lessee himself.
NATURE OF ACTION: An employee injured by a bull sought damages from a coemployee who had leased to the employer the land on which the injury occurred.
Superior Court: The Superior Court for Clallam County, No. 86 2-00139-8, Gary W. Velie, J., on November 24, 1986, refused to grant the defendant a summary judgment.
Court of Appeals: Holding that the defendant was immune from liability under the Industrial Insurance Act, the court REVERSES the trial court and GRANTS judgment in favor of the defendant.
COUNSEL: HAROLD B. FIELD, WAYNE MURRAY, and MURRAY, DUNHAM & MURRAY, for petitioners.
GEORGE L. WOOD, JR., and PLATT, IRWIN, COLLEY, OLIVER, MILLER & WOOD, for respondents.
AUTHOR OF MAJORITY OPINION: Worswick, J.-
MAJORITY OPINION:
We accepted discretionary review, on the application of Earl and Vina Mae Millet, of an order denying their motion for summary judgment of dismissal of this action, brought against them by Clayton Kimball for personal injuries caused by an aggressive bull. The bull was owned by a farming corporation that employed both Kimball and the Millets. The injuries were sustained on farmland owned by the Millets, but leased to the corporation. It is undisputed that Kimball was injured in the course of his employment, that the Millets, as corporate officers, were Kimball's coemployees, and that the bull was a corporate asset used in the farming operation. We reverse, holding that the Millets are immune from suit under the Industrial Insurance Act. RCW Title 51. We reject Kimball's contentions that the Millets were exposed to liability either under a "dual persona" theory or as landlords.
Kimball attempts, by classifying them as negligent third parties under RCW 51.24.030(1), to strip the Kimballs of the immunity conferred upon them by the act. SEE PROVOST v. PUGET SOUND POWER & LIGHT CO., 103 Wn.2d 750, 752, 696 P.2d 1238 (1985). «1»
«1» RCW 51.24.030(1) provides: "If a third person, not in a worker's same employ, is or may become liable to pay damages on account of a worker's injury for which benefits and compensation are provided under this title, the injured worker or beneficiary may elect to seek damages from the third person."
He attempts to do this by characterizing the Millets not as employers or coemployees, but as landowners, thereby invoking the "dual persona" doctrine, recognized but not applied in CORR v. WILLAMETTE INDUS., 105 Wn.2d 217, 220-21, 713 P.2d 92 (1986). Under this doctrine, an employer (and presumably a coemployee) may fall within the third person exception to immunity if, but only if, possessing a second persona so completely independent from and unrelated to the status of employer (or coemployee) that, by established standards, the law recognizes the second persona as a separate legal person. CORR, 105 Wn.2d at 220-21.
[1] The immunities conferred by the act are not easy to avoid (CF. MCCARTHY v. DEPARTMENT OF SOCIAL & HEALTH SERVS., 110 Wn.2d 812, 759 P.2d 351 (1988); SPENCER v. SEATTLE, 104 Wn.2d 30, 32, 700 P.2d 742 (1985); THOMPSON v. LEWIS CY., 92 Wn.2d 204, 207, 595 P.2d 541 (1979)), and Kimball cannot avoid them in this case. Our statute has always been construed stringently in eliminating claims against employers. THOMPSON, 92 Wn.2d at 209. Theories that attempt to circumvent statutory immunities should be examined with the same stringency.
[2] Although in this field the courts of this state are seldom persuaded by decisions from other states (SEE DENNIS v. DEPARTMENT OF LABOR & INDUS., 109 Wn.2d 467, 482, 745 P.2d 1295 (1987)), it is nevertheless appropriate to consider how those courts have dealt with problems that are new to us. Having considered cases from other jurisdictions dealing with this issue, «2»
«2» SEE 2A A. Larson, WORKMEN'S COMPENSATION 72.80-72.83 (1983).
we are persuaded, by the reasoning of the New York Court of Appeals, that where the facts supporting a third party/"dual persona" claim are those under which a coemployee would be immune from suit under the act, the putative defendant cannot be said to have a second persona SO COMPLETELY SEPARATE as to be recognized by law as a separate person for purposes of third party liability for an on the-job injury. HERITAGE v. VAN PATTEN, 59 N.Y.2d 1017, 453 N.E.2d 1247 (1983); CF. RAUCH v. JONES, 4 N.Y.2d 592, 152 N.E.2d 63, 176 N.Y.S.2d 628 (1958). This rationale best serves the purposes of the Industrial Insurance Act, and we adopt it. It operates here to bar Kimball's "dual persona" claim against the Millets.
[3] We also find no separate basis for the Millets' liability under landlord-tenant law. Generally, a landlord owes no greater duty to the guests, invitees or licensees of the tenant than the landlord owes to the tenant. REGAN v. SEATTLE, 76 Wn.2d 501, 458 P.2d 12 (1969); AMBURGY v. GOLDEN, 16 Wn. App. 449, 557 P.2d 9 (1976). Here, the Millets owed no duty to the corporate employer to protect it from its own animals. It follows that they owed no duty to the corporation's employees.
Reversed.
CONCURRING JUDGES:
Reed, C.J., and Petrie, J. Pro Tem., concur.
POST-OPINION INFORMATION:
Review denied by Supreme Court January 10, 1989.