Opinion
No. 53583-8-I
Filed: May 31, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 02-2-27677-6. Judgment or order under review. Date filed: 12/12/2003. Judge signing: Hon. James D Cayce.
Counsel for Appellant(s), Nancy Kay Bourgois, Attorney at Law, 600 Stewart St Ste 1510, Seattle, WA 98101-1217.
Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Counsel for Respondent(s), Deborah Lynn Carstens, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Jerret E. Sale, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
Charles Albert Willmes, Bullivant Houser Bailey PC, 1601 5th Ave Ste 2300, Seattle, WA 98101-1618.
James McGill was severely injured when an electric kitchen appliance shocked him while he was working in a home economics classroom at his boarding school, the Auburn Adventist Academy (Academy). McGill and his parents sued the Academy, the Washington Conference of Seventh Day Adventists (Conference), the Western Washington Corporation of Seventh Day Adventists (Corporation), his teacher Shelley Kilgore, and the North Pacific Union Conference (NPUC). The trial court dismissed all claims against all defendants on summary judgment.
We affirm summary judgment in favor of the Academy, which is immune under the Industrial Insurance Act (IIA) as McGill's employer. We also affirm summary judgment in favor of the NPUC because McGill failed to raise issues of material fact on all elements of his claim against the NPUC. We reverse summary judgment in favor the Conference, the Corporation, and Shelley Kilgore and her marital community. McGill has raised genuine issues of material fact on his consent to employment by the Conference and on the issue of identity between the Academy and the Conference. He also raised issues of material fact as to whether he and Kilgore were in the same employ. McGill's parents' claims share the same result as McGill's claims.
FACTS
James McGill was a boarding student at the Academy in Auburn, Washington. McGill worked in the home economics classroom. He earned credit toward his tuition, room, and board at the Academy for his work. McGill also worked in other positions at the Academy, and at times at other schools during other years.
On September 11, 1998, McGill helped his teacher Shelley Kilgore with class. After class, he was given permission to make himself a crepe. He took an electric crepe maker to a work station. Kilgore had originally purchased the crepe maker for personal use and then brought it to the school for classroom use. The handle of the crepe maker was cracked and broken. Kilgore was aware that it was cracked. She did not warn McGill that the handle was cracked before he started making crepes that morning. When McGill plugged the crepe maker into an outlet and grasped the handle, he was shocked.
McGill went to a clinic and was examined on the day of the shock. The Department of Labor and Industries (Department) paid and then closed McGill's claim. McGill later began experiencing symptoms of cardiac injury, and a pacemaker was implanted in January 2002. The Department reopened McGill's claim, paid for McGill's heart operation, and determined he is permanently partially disabled.
McGill sued the Academy, the Conference, the Corporation, the NPUC, Shelley Kilgore, and Robert Kilgore. His claims against the various parties included negligence, negligent supervision of students and teachers, failure to inspect, failure to train, vicarious liability, failure to keep premises safe and fit for human habitation, and failure to warn. McGill's parents were also named as plaintiffs in the lawsuit.
Defendants moved for summary judgment and argued that the Academy, the Conference, and the Corporation were all immune as McGill's employer under the IIA. Defendants argued that the Academy, the Conference, and the Corporation are the same entity, or are parent/subsidiary entities such that immunity flows from the child to the parent. Defendants argued that Kilgore was immune as McGill's coworker under the IIA, and that NPUC owed no duty to McGill. Defendants argued that since McGill's claims against these defendants were barred or otherwise improper, his parents' claims were similarly barred or improper. The trial court granted summary judgment and dismissed all claims against all defendants. McGill and his parents appeal.
ANALYSIS
'An appellate court engages in the same inquiry as the trial court when reviewing an order of summary judgment.' Denaxas v. Sandstone Court of Bellevue, 148 Wn.2d 654, 662, 63 P.3d 125 (2003). Summary judgment is appropriate if the pleadings, affidavits, depositions, answers to interrogatories, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). 'The court must consider all facts submitted and all reasonable inferences drawn from them in the light most favorable to the nonmoving party.' Denaxas, 148 Wn.2d at 662. 'The court should grant the motion only if, from all the evidence, reasonable persons could reach but one conclusion.' Denaxas, 148 Wn.2d at 662. If competing and apparently competent evidence is presented by opposing parties on a material issue of fact, the issue cannot be resolved as a matter of law by summary judgment. Larson v. Nelson, 118 Wn. App. 797, 810, 77 P.3d 671 (2003).
A. The Academy Is Immune As McGill's Employer
The Industrial Insurance Act (IIA) provides the exclusive remedy against an employer for an employee injured in the workplace. RCW 51.04.010, 51.32.010.
Under the quid pro quo compromise reflected in the Industrial Insurance Act, the employer pays some claims for which there would be no liability under common law, and the employee gives up common law actions and remedies in exchange for sure and certain relief.
Wilmot v. Kaiser Aluminum, 118 Wn.2d 46, 57, 821 P.2d 18 (1991).
Therefore, once it is established that a worker was injured while in the course of employment, the sole remedy is compensation through the IIA. The claims with the Department for McGill's injuries were filed with the Academy listed as his employer. When the claims were closed, the Academy was again listed as McGill's employer. McGill received benefits at the time he was injured and the disability payment schedule from the Department shows that he was to receive benefits through October 2004.
McGill now argues that the Academy should not be dismissed under summary judgment because he may have been incorrect in assuming/agreeing that he was on the clock when he was injured:
I do know that when I was injured, I was not actually doing work, but was making a crepe for myself to eat. Then I was shocked by the crepe maker and did not do any more work. I think it is possible that someone marked me as done with work that morning once I started making a crepe for myself because I never returned to work after I was shocked. Originally I thought that my time spent in making a crepe for myself would have been still considered work time, but maybe not. I may have been on my own time once I stopped doing the tasks assigned by the teacher and started making a crepe for myself.
McGill argues that this raises a question of fact as to whether he was actually working, precluding summary judgment. He concedes on appeal that if he was on the job, the Academy would be immune from suit under the IIA as his employer.
McGill's declaration does not raise an issue of material fact to preclude summary judgment in favor of the Academy. Under the IIA, only workers injured in the course of employment, or their families or dependents, are entitled to compensation. RCW 51.32.010. By submitting a claim form to the Department, a claimant represents that he or she is entitled to compensation under the IIA. When the Department grants a claim, it implicitly and necessarily finds that the claimant was in the course of employment at the time of the accident. Only such persons are entitled to payment under RCW 51.32.010. The Department allowed McGill's claims. McGill was a party to the claim and had notice that unless he filed a written request for reconsideration or appealed within 60 days, the order would become final. McGill has not sought to appeal any Department decision or order. He accepted benefits under the order. Therefore, the order, with the implicit finding that McGill was injured in the course of employment and that the Academy was his employer, is final and binding. See Marley v. Labor Indus., 125 Wn.2d 533, 537-38, 886 P.2d 189 (1994). We affirm summary judgment in favor of the Academy to the extent of its status as McGill's employer.
B. Neither the Conference nor the Corporation Is Entitled to Summary Judgment on the Issue of Whether It Is the Same Entity as the Academy
Only employers are immune under the IIA from suit for workplace injuries; third parties are not immune. Hildahl v. Bringolf, 101 Wn. App. 634, 642, 5 P.3d 38 (2000). An employee can have more than one employer for the purposes of the IIA. Scott R. Sonners, Inc. v. Labor Indus., 101 Wn. App. 350, 356, 3 P.3d 756 (2000). However, the Washington Supreme Court has held that '[f]or purposes of workmen's compensation, an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship.' Novenson v. Spokane Culvert, 91 Wn.2d 550, 553, 588 P.2d 1174 (1979). Summary judgment is inappropriate if questions of fact exist either as to the putative employer's right to control the employee, or as to the employee's consent to be employed by the putative employer. Novenson, 91 Wn.2d at 553, 555; Bennerstrom v. Labor Indus., 120 Wn. App. 853, 863, 86 P.3d 826 (2004); Meads v. VFW Post 969, 54 Wn. App. 486, 488-89, 774 P.2d 49 (1989).
McGill has raised genuine issues of material fact as to at least the second element of the Novenson test: his consent to be employed by the Conference. In his declaration, McGill states:
8. At all times when I was clocked in and working in the home-economics department, I was working for the Auburn Adventist Academy. I was not working for the Washington Conference or anyone else to the best of my knowledge. I was never told or led to believe that my actual employer was anything other than the Auburn Adventist Academy for time working in the home economics room.
. . .
10. During the times that I was working at Auburn Adventist Academy as an assistant in the home-economics classroom, I did not consent to be employed by anyone other than the Auburn Adventist Academy, but then I wasn't asked to consent to be employed by anyone other than the Auburn Adventist Academy while acting as an assistant in the home economics room.
Respondents have not presented any evidence that McGill actually did consent to be employed by the Conference. Therefore, under the Novenson test, genuine issues of material fact remain precluding summary judgment in favor of the Conference.
Respondents argue that it is not necessary to meet the Novenson test, because the Academy has no separate legal identity and the true issue is whether the Conference, the Corporation, and the Academy should be treated as a single entity for purposes of the IIA. To support their argument, Respondents present the declaration of David Duncan. Duncan has been general counsel for the Conference for approximately 30 years. On that basis, he stated the following with respect to the organizational structure of the Seventh-day Adventist Church and the Conference:
3. [The Conference] is an unincorporated association or organization within the Seventh-day Adventist Church. It was created and maintained by a group of Seventh-day Adventist Church congregations. . . . These congregations are considered 'members' of [the Conference] and elect a committee known as the 'Conference Committee' to oversee the business and operations of the churches and schools operated by the Seventh-day Adventist Church within its territory. . . .
4. The educational activities and functions of [the Conference] are supervised by an educational board known as the Washington Conference Board of Education, also known as the 'K-12 board.' [The Conference] K-12 Board has the responsibility for and authority over matters related to the hiring, firing, discipline and supervision of teachers assigned to the various schools operated by the local church congregations and [the Conference].
5. [The Academy] is a senior high school operated by [the Conference]. [The Academy] is not separately organized nor is it incorporated as a separate entity. It is part of [the Conference], best described as an 'operational unit' of [the Conference]. It has no legal existence apart from [the Conference]. [The Academy's] teachers and administration are employees of [the Conference] and are hired, terminated, and assigned their positions by action of [the Conference] K-12 Board.
Duncan also stated in his declaration that the Corporation was created for the purpose of holding title to Conference properties because, historically, unincorporated associations could not hold title to property in their own right. The Academy occupies its Auburn property with no written agreement and makes no payments to the Corporation.
In Monroe v. Monsanto Co., 531 F. Supp. 426 (D.S.C. 1982), the court listed several factors that could be considered to determine whether two related businesses are separate and distinct for worker's compensation purposes. These are whether the businesses maintain separate corporate identities, separate boards of directors, whether they transact business from different locations under different managers, whether they hire and pay their own employees, whether they hold themselves out to their employees as separate entities, whether they engage in different business activities, maintain separate books, bank accounts, and payroll, and whether they file separate tax returns. Monsanto, 531 F. Supp. at 433-34. Filing separate applications and reports with governmental agencies is evidence of maintaining separate corporate identities. Monsanto, 531 F. Supp. at 434. Appellant cites Daniels v. Seattle Seahawks, 92 Wn. App. 576, 968 P.2d 883 (1998), as an example of a Washington case considering some of these factors in determining that two persons were coworkers and not third parties to each other (factors considered were failure to establish accounts with the Department of Revenue or other state agencies or to acquire a UBI number from the state).
Appellants have presented substantial evidence to show that the Conference, the Corporation, and the Academy operated as separate entities. The Academy filed business registration forms with the City of Auburn. Each of these forms lists the applicant as the Academy, the business name as the Academy, and the business address as the Academy's Auburn address. The forms list the Taxpayer Identification Number (TIN) for the Academy as 91-0664703, the same number listed on the W-2 McGill received for his work at the Academy. There is no indication on the forms that the Academy is owned by or doing business through the Conference.
The Washington State Department of Revenue lists the Academy as an association, at the Academy's Auburn address. The Academy's UBI number is listed as 171 000 213. This is the same number listed on the accident report filed with the Department when McGill was injured. The Corporation and the Conference each have their own distinct UBI numbers.
The Department also shows that the Conference and the Corporation share account numbers while the Academy has its own account number. The account number listed on McGill's claim form was the Academy's number.
The Academy, the Corporation, and the Conference filed separate business license applications with the Department of Licensing. The Corporation lists four additional business names. Notably, the Academy is not listed under the licensing records of either the Conference or the Corporation as a firm name, while other related entities are listed.
In addition, payroll records indicate employer identity. See Monsanto, 531 F. Supp. at 434. In Joyce v. Super Fresh Food Markets, Inc., 815 F.2d 943, 944 (3rd Cir. 1987), a worker was hired by one subsidiary (SMS) and worked in a store owned by another subsidiary (Super Fresh) of the parent company. Super Fresh sought immunity from suit for injuries to the worker. The court looked to the paychecks (among other factors) and noted that those issued to the worker by SMS were inscribed with the SMS insignia and delivered to the employees home, whereas those issues by Super Fresh were distributed on store premises. Joyce, 815 F.2d at 948. The Joyce court concluded that questions of material fact precluded summary judgment as to who was the worker's employer. Joyce, 815 F.2d at 949.
Here, likewise, McGill was paid differently based on whether he worked for the Academy or for the Conference. When McGill worked at the Academy, he was compensated with a payroll credit against tuition, room, and board charges. The credit was calculated and reported on the bill sent to McGill's parents. He received W-2s from the Academy for hours worked at the Academy. The W-2 listed the Academy as McGill's employer with TIN number 91-0664703, and listed the Academy's Auburn address as the employer address. When McGill worked at Buena Vista Elementary School in 2000, he was employed by the Conference. He received a paycheck from the Conference. He received a W-2 from the Conference listing the Conference as his employer. The Conference TIN number listed on the W-2 was 91-0644803. The W-2 listed the Conference's Bothell address as the employer address.
The comparison with occasions when McGill worked for the Conference is useful to note the different payroll practices between the two employers. It is clear that McGill was working at the Academy when injured. 'The controlling fact in establishing exclusiveness is the relationship of the parties at the time of occurrence of the injury. Their relationship at other times, . . . is immaterial.' DuVon v. Rockwell Int'l, 116 Wn.2d 749, 754, 807 P.2d 876 (1991) (quoting 2A A. Larson, Workmen's Compensation sec. 65.13 (1989)).
Finally, Appellants point to the deposition of Keith Hallam, the Academy's principal. Hallam testified that the Academy's finances are held 'as a separate entity for auditing and review purposes.' Hallam testified that the Academy has an operating board to balance the Academy's budget. The finance committee makes budget and operations recommendations to the Academy board. The Academy has a committee that works on producing income from properties in the Academy's trusteeship. The operating board authorizes equipment purchases. The Academy was paying back a loan for renovations. Appellants also point to the different physical locations from which the Academy and the Conference operate (Auburn and Bothell, respectively).
In sum, Appellants have raised a substantial question of material fact as to whether the Conference and the Academy are separate and distinct entities. Therefore, summary judgment in favor of the Conference on the ground that it is the same entity as the Academy was error.
Because we hold that summary judgment was inappropriate on this ground in favor of the Conference, we also conclude that it was error on this ground in favor of the Corporation. Respondents claim that the Corporation merely holds legal title to property owned by the Conference, did not operate as a separate entity from the Conference, and therefore is entitled to the same immunity as the Conference on these claims. Appellants have presented evidence to the contrary. Principles of corporate law would preclude a conclusion that the Corporation and the Conference are the same entity. 'A corporation exists as an organization distinct from the personality of its shareholders.' Grayson v. Nordic Constr. Co., 92 Wn.2d 548, 552, 599 P.2d 1271 (1979). '[A] corporation's separate legal identity is not lost merely because all of its stock is held by members of a single family or by one person.' Grayson, 92 Wn.2d at 553. An employer cannot set up a separate corporation to conduct business and then raise and lower the corporate veil to block liability or receive immunity at will. See Evans v. Thompson, 124 Wn.2d 435, 440, 879 P.2d 938 (1994). Here, the Corporation is a separate legal entity. Summary judgment in favor of the Corporation based on identity with the Conference was error.
C. Neither the Conference nor the Corporation Is Entitled to Summary Judgment Based on Status As a Parent Company
Respondents assert that under Washington law, a parent company enjoys the immunity granted by the IIA to its subsidiaries. Respondents rely on Minton v. Ralston Purina Co., 146 Wn.2d 385, 47 P.3d 556 (2002). In Minton, the Washington Supreme Court stated: 'a parent company and its subsidiaries will be treated as one entity for the purposes of immunity under the [IIA].' Minton, 146 Wn.2d at 389-90 (citing Manor v. Nestle Food Co., 131 Wn.2d 439, 456, 932 P.2d 628 (1997)). At first blush this statement lends strong support to Respondents' argument. However, the summary statement in Minton overstates the actual holding of Manor, as if addressing an issue that was not before it.
In Manor, the injured worker was an employee of a Nestle subsidiary. Manor, 131 Wn.2d at 443. He sued Nestle, the parent corporation. Manor, 131 Wn.2d at 443. The IIA permits companies to self-insure, and the subsidiary was a self-insurer under the IIA. RCW 51.14.010; Manor, 131 Wn.2d at 443. Nestle was also a self-insurer, and paid more than $455,000 in medical and time-loss benefits to the injured worker. Manor, 131 Wn.2d at 442. WAC 296-15-023(2), then in effect, provided that '[o]ne certificate will be issued to an approved self-insurer, including all subsidiaries or divisions. The entities will be considered as one employer for all purposes of Title 51 RCW.' Manor, 131 Wn.2d at 444-45. WAC 296-15-023(2) was promulgated under the Department's authority to regulate self-insurers. Manor, 131 Wn.2d at 444.
WAC 296-15-023 was in effect on September 11, 1998, when McGill was injured. Therefore, it may have affected his rights if his employer was a self-insured entity. His employer was not; all the entities at issue here participate in the state fund.
WAC 296-15-023 was repealed effective December 27, 1999. Wash. St. Reg. 99-23-107, available at http://slc.leg.wa.gov/wsr/1999/23/99-23-107.htm (filed Nov. 19, 1999, eff. Dec. 27, 1999). The purpose of the repeal was to comply with the Governor's Executive Order 97-02. Wash. St. Reg. 99-23-107, Purpose. Executive Order 97-02 required each state agency to review its rules and ensure the rules 'meet standards of need, reasonableness, effectiveness, clarity, fairness, stakeholder involvement, coordination among regulatory agencies, and consistency with legislative intent and statutory authority' and comply 'with all requirements of the Administrative Procedure Act.' Ex. Order 97-02, available at http://www.governor.wa.gov/actions/orders/eoarchive/eo 97-02.htm) (Mar. 25, 1997).
Wash. St. Reg. 99-23-107 adopted WAC 296-15-021 , which states:
Individual firm self insurance application.
(1) What does individual firm mean when applying for certification to self insure workers' compensation benefits? When applying for certification to self insure workers' compensation benefits, an individual firm means a sole proprietor, partnership or corporation which is responsible for its own audited financial statements.
. . .
(7) What if an individual firm is a subsidiary of a corporation?
(a) If an individual self insured firm has a parent (owner of fifty percent and/or having controlling financial interest), the parent must provide the department with its written guarantee . . . to assume responsibility for all workers' compensation liabilities of the subsidiary if the subsidiary defaults on its liabilities.
(b) If a parent fails to provide a guarantee, the department will require the subsidiary to provide surety at one hundred twenty-five percent of its actual requirement. The subsidiary must continue to provide surety at the higher level as long as it has no parental guarantee.
WAC 296-15-021 .
Nestle claimed that the forklift operator who ran over the injured worker's foot was in the same employ as the injured worker, and that Nestle was therefore immune. Manor, 131 Wn.2d at 443. The injured worker claimed that he and the forklift operator had distinct employers under the common law, and the Court of Appeals held that WAC 296-15-023(2) was invalid. Manor, 131 Wn.2d at 443-44. The Manor court noted that the validity of the code provision was the central issue in its decision: 'The central issue in this case is whether Manor and the forklift operator who ran over his foot were 'in the same employ' for purposes of RCW 51.24.030(1). The dispositive regulation is WAC 296-15-023(2).' Manor, 131 Wn.2d at 444. The Manor court upheld the validity of WAC 296-15-023(2). Manor, 131 Wn.2d at 456.
The majority and dissent in Manor traded comments on whether or not the decision would create disparate treatment between employees based on the self-insured status of employers. The dissent urged that chapter 51.14 RCW (self-insurers) was not intended to treat employees differently depending on whether they were covered under a self-insurance scheme or the state fund. Manor, 131 Wn.2d at 461 (Madsen, J., dissenting). The dissent quoted Johnson v. Tradewell Stores, Inc., 95 Wn.2d 739, 745, 630 P.2d 441 (1981): 'Nowhere in RCW Title 51 is there even a hint that the legislature intended some covered employees to be treated differently than others.' Manor, 131 Wn.2d at 461 (Madsen, J., dissenting). The majority responded that the IIA treats employees of self-insured employers differently in several ways, and that 'there is no requirement in the IIA for precisely similar treatment of employees of self-insureds and state fund employers, and there is nothing inherently improper about dissimilar treatment.' Manor, 131 Wn.2d at 453. The majority also noted that the dissent may not even be accurate in concluding that state fund employees would be treated differently. Manor, 131 Wn.2d at 453 n. 6.
The Washington Supreme Court later applied the Manor holding in Minton. Because the employer at issue in Minton was also a self-insurer, the Manor holding was properly applicable in that context. But, the Minton court cited the Manor decision in stating generally that parent and subsidiary companies are treated as a single entity for IIA purposes. Minton, 146 Wn.2d at 389-90. The only question before the Manor court was whether WAC 296-15-023(2) was valid. The Manor court did not decide the general question of the treatment of parent and subsidiary entities outside the context of self-insurers. Likewise, the Minton court did not have before it the general question of parent/subsidiary immunity. Even if the statement in Minton can be read as generalized, the statement is dicta:
In considering statements made in the course of judicial reasoning, one must remember that general expressions in every opinion are to be confined to the facts then before the court and are to be limited in their relation to the case then decided and to the points actually involved.
Peterson v. Hagan, 56 Wn.2d 48, 53, 351 P.2d 127 (1960).
In Meads, 54 Wn. App. at 488, decided before Manor and Minton, Division Two of this court rejected the assertion that an 'employee of a parent corporation's wholly owned subsidiary ipso facto is an employee of the parent, by virtue of the parent's right to control the subsidiary.' The Meads court instead adopted the two part control-consent test of Novenson, discussed above. Meads, 54 Wn. App. at 488-89. The Meads court noted that this two part test is firmly settled and consistently applied under Washington law. Meads, 54 Wn. App. at 489. The Meads decision was not overruled in the later Manor or Minton cases, which it should have been if Respondents' interpretation of those cases is correct.
We hold that summary judgment was inappropriate in favor of the Conference and the Corporation based on their alleged parent/subsidiary status.
D. The Corporation Is Not Entitled to Summary Judgment Under Its Alternate Theory of Status As Landowner
McGill claims that the Corporation failed to install proper electrical equipment at the Academy that would have prevented his injuries. The Corporation owns and is responsible for managing the Academy property. Respondents have cited supplemental authority to challenge this basis for liability, Clemmons v. Fidler, 58 Wn. App. 32, 37-38, 791 P.2d 257 (1990), but the argument was not sufficiently briefed to serve as a basis for affirming summary judgment on appeal. We decline to affirm summary judgment in favor of the Corporation on this basis.
E. Teacher Shelley Kilgore Is Not Entitled to Summary Judgment
McGill argues that Kilgore was negligent in allowing him to use the crepe maker, and that she was acting in the course of employment for the Conference when she allowed him to use the device. Under RCW 51.24.030(1), [i]f 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.
RCW 51.24.030(1). Therefore, if McGill and Kilgore were not in the 'same employ' when McGill was injured, McGill can sue Kilgore.
Kilgore's employment contract is with the Conference. Appellants and Respondents both assert that she works for the Conference. But, Shelley Kilgore and Keith Hallam, the Academy principal, both testified that the Academy issues Kilgore's paychecks. Unlike for McGill, there are no W-2s, pay stubs, or other payment receipts for Kilgore in the record.
Kilgore testified that she is employed by the Academy. This contradicts the terms of her employment contract listing the Conference as her employer. On appeal, Kilgore and the other Respondents jointly urge that her confusion is merely an indication that the Conference and the Academy are parts of a whole, and does not raise an issue of material fact; that is, that the 'existence of the Academy and the Washington Conference as one entity is reinforced by the fact that Shelley Kilgore is confused as to who her employer is.' Appellants also urge that this does create an issue of material fact as to Kilgore's employer, and agree with Respondents that the Conference is Kilgore's employer.
Appellants and Respondents therefore agree that Kilgore worked for the Conference. McGill, on the other hand, worked for the Academy. They would only be in the same employ if Respondents show the Academy and the Conference were both McGill's employer, they were the same entity, or the Conference otherwise enjoyed the immunity of the Academy. As noted above, Respondents have not shown any of these bases under the summary judgment standard. Therefore, summary judgment in favor of Kilgore was error.
Respondents argue that Appellants failed to raise the issue of dismissal of the Kilgores and failed to argue it in their brief, and that this court therefore should not consider the issue and should affirm the dismissal of the Kilgores. However, Appellants assigned error to the trial court's entire order granting summary judgment, which included the dismissal of claims against the Kilgores. Separate argument addressing the Kilgores was not necessary in the Appellants' opening brief because the dismissal of the Kilgores is entirely dependent on the court's decisions on the identity of McGill's employer.
F. Summary Judgment in Favor of NPUC Was Not Error
NPUC is an association based in Vancouver, Washington. The Conference, along with four other regional conferences, is a member of NPUC. NPUC develops educational policies for the schools, and makes an annual financial contribution to the Academy. In the underlying complaint in this case, appellants claimed that NPUC was vicariously liable for the negligence of the Conference and of Kilgore. However, in their response to the summary judgment motion and on appeal, Appellants argue that NPUC's liability is not solely vicarious. Appellants additionally allege NPUC is liable for its own negligence because it issued a teachers handbook that addressed safety. Teachers were required to be familiar with the handbook. A portion of the handbook includes information on student supervision, and requires such supervision. Teachers at the Academy must acknowledge reading NPUC Policies For Educational Personnel when they sign their employment contracts. The content of the handbook and the extent of its discussion of supervision is unclear from the record. There is no evidence in the record that the handbook addresses safety, despite Appellants' claims that it may contain such information.
Appellants note that because NPUC has not answered discovery requests served on June 11, 2003, Appellants are unable to describe the full extent of NPUC involvement. Under CR 56(f) and Shoberg v. Kelly, 1 Wn. App. 673, 677 463 P.2d 280 (1969), parties opposing a summary judgment motion faced with insufficient discovery responses must present an affidavit stating the reasons why facts supporting the opposition are unavailable, and the court can then stay summary judgment to allow further discovery. Although NPUC did not respond to discovery requests that may have provided Appellants with further evidence to oppose summary judgment, Appellants did not file a CR 56(f) affidavit. Appellants chose instead to oppose summary judgment on the record as it existed. Thus, NPUC's failure to respond does not preclude summary judgment based on the evidence before the court.
Appellants argue that by undertaking to develop a safety code, NPUC undertook a duty to act carefully under the voluntary rescue doctrine as set forth in Meneely v. S.R. Smith, Inc., 101 Wn. App. 845, 856, 5 P.3d 49 (2000). Appellants argue that NPUC is therefore directly liable for its own negligence in failing to prepare an adequate code.
Respondents argue that the voluntary rescue doctrine is not applicable under the facts of this case, because McGill has not shown that NPUC knew and failed to warn of a known danger. Respondents argue that, as David Duncan stated in his declaration, NPUC is not involved in the operation of the Academy and has no authority to hire, fire, discipline, or supervise the teachers employed by the Conference. Respondents further argue that Appellants have failed to present facts on each element of the cause of action against NPUC.
Respondents also argue that NPUC is merely another part of the greater Seventh-Day Adventist Church entity and should be immune under the IIA. There is no factual support for this argument. Beyond citing Proctor v. Gen. Conf. of Seventh-Day Adventists, 651 F. Supp. 1505 (N.D. Ill. 1986), for the general conclusion that the Church is a single entity, nothing in Respondent's brief argues why NPUC is identical to either the Conference or the Corporation.
Appellants rely on the voluntary rescue doctrine, a 'well established liability concept.' Meneely, 101 Wn. App. at 856. 'It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all.' Roth v. Kay, 35 Wn. App. 1, 4, 664 P.2d 1299 (1983) (quoting Glanzer v. Shepard, 135 N.E. 275, 276, 233 N.Y. 236 (1922)) (internal quotations omitted). Whether a duty exists is a question of law. Shepard v. Mielke, 75 Wn. App. 201, 205, 877 P.2d 220 (1994). Appellants assert a duty exists here under Meneely. In Meneely, a swimmer was injured when diving into a pool. Meneely, 101 Wn. App. at 848. The swimmer sued the trade association that set standards for pools and related equipment. The Meneely court held that by promulgating the standards manufacturers relied upon, the trade association assumed the duty to warn divers of known risks posed by particular pool and board combinations. Meneely, 101 Wn. App. at 859-60. In Meneely, the trade association knew that the particular pool and board combination at issue posed a danger to certain divers (such as the injured swimmer), but did not update its standards to warn of the risk. Meneely, 101 Wn. App. at 859-60.
The Meneely court considered Folsom v. Burger King, 135 Wn.2d 658, 958 P.2d 301 (1998), where no duty was imposed on a security system alarm company that failed to deactivate and remove alarm equipment after a service contract was discontinued. Meneely, 101 Wn. App. at 858. During a robbery at a fast food restaurant, two employees were murdered. One of them had activated the alarm, but the alarm company did not respond because the service had been discontinued. Meneely, 101 Wn. App. at 858. The Folsom court rejected the invitation to impose a duty under the voluntary rescue doctrine, noting that typically, 'liability for attempting a voluntary rescue has been found when the defendant makes the plaintiff's situation worse by: (1) increasing the danger; (2) misleading the plaintiff into believing the danger had been removed; or (3) depriving the plaintiff of the possibility of help from other sources.' Meneely, 101 Wn. App. at 858 (quoting Folsom, 135 Wn.2d at 676 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts sec. 56 (5th ed. 1984))) (internal quotations omitted). Because the dangers were unknown and unforeseeable, and the alarm company's inaction did not create the danger, the Folsom court held that no ongoing duty arose. Meneely, 101 Wn. App. at 858, 860. The Meneely court noted that foreseeability of harm is often the pivotal point in various other jurisdictions' decisions on whether a trade association owes a duty of care to the ultimate consumer when it formulates safety standards for an industry. Meneely, 101 Wn. App. at 861. Under the foreseeability test, '[t]he ultimate test of a duty to use [due] care is found in the foreseeability that harm may result if care is not exercised.' Meneely, 101 Wn. App. at 860 (internal quotations and citations omitted). Imposing liability when there is no knowledge or foreseeability of the danger posed would be imposing strict liability. Meneely, 101 Wn. App. at 860.
In order to avoid summary judgment and state a claim under Meneely, Appellants must show that NPUC promulgated a safety standard, was aware of a risk posed by teachers bringing in personal, unsafe equipment for student use, and failed to warn of that risk and modify its standards appropriately. Appellants have not made such a showing. There is no evidence of any of the three factors outlined in Folsom that would subject NPUC to liability: that is, there is no evidence that NPUC failed to warn McGill of a known risk, thereby increasing the risk, misleading McGill about it, or depriving him of help from other sources. Before Respondents are required to come forward and prove that NPUC met its standard of care in promulgating safety standards, Appellants must first factually support each element of the cause of action asserted. Appellants failed to do so and therefore summary judgment in favor of NPUC was not error.
G. Claims of McGill's Parents Share the Same Fate as Those of McGill
Under the IIA, family members' claims are subject to the same bar as the claims of the injured worker. See Provost v. Puget Power, 103 Wn.2d 750, 696 P.2d 1238 (1985). In Provost, members of an injured worker's immediate family brought an action against the worker's employer. The action included negligent infliction of emotional distress, loss of spousal consortium, and loss of parental consortium claims. Provost, 103 Wn.2d at 752. The Provost court noted that the express terms of RCW Title 51 bar Sall independent causes of action against the employer for damages arising out of unintentional injury to an employee.' Provost, 103 Wn.2d at 752. The Provost court quoted RCW 51.04.010, 'the statute's first exclusive remedy provision,' which states in relevant part:
The state of Washington, therefore, exercising herein its police and sovereign power, declares that all phases of the premises are withdrawn from private controversy, and sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding or compensation, except as otherwise provided in this title.
Provost, 103 Wn.2d at 752. Under RCW 51.32.010,
[e]ach worker injured in the course of his or her employment, or his or her family or dependents in case of death of the worker, shall receive compensation in accordance with this chapter, and, except as in this title otherwise provided, such payment shall be in lieu of any and all rights of action whatsoever against any person whomsoever.
RCW 51.32.010 also applies to bar common-law actions against fellow employees. Provost, 103 Wn.2d at 752.
The family members in Provost claimed that these provisions only barred actions possessed by the injured worker, and were not intended to bar actions for injuries suffered by other persons. Provost, 103 Wn.2d at 753. Thus, the family members claimed that their actions, which arose from injuries personal to them under common law, were not barred. Provost, 103 Wn.2d at 753. In holding that the IIA bars the family members' claims, the Provost court approvingly cited Ash v. S.S. Mullen, Inc., 43 Wn.2d 345, 261 P.2d 118 (1953), overruled on other grounds, Lundgren v. Whitney's Inc., 94 Wn.2d 91, 614 P.2d 1272 (1980). Provost, 103 Wn.2d at 754-55. The Ash court held that 'not only does the act provide the exclusive remedy for the workers, but for the workers' families as well.' Provost, 103 Wn.2d at 753-54 (citing Ash). The Provost court also approvingly cited West v. Zeibell, 87 Wn.2d 198, 550 P.2d 522 (1976). Provost, 103 Wn.2d at 754-55. The Zeibell court reasoned that 'the exclusive remedy provisions, which abolish other civil remedies for injuries to workers and provide that compensation under the act is in lieu of other rights of action, is of the broadest type of exclusion provisions in workers' compensation legislation.' Provost, 103 Wn.2d at 754 (citing Zeibell). In Zeibell, '[t]he act was held to apply to independent rights of action for losses that are separate and distinct from that of the worker, as well as to causes of action created subsequent to the enactment of the workers' compensation legislation.' Provost, 103 Wn.2d at 754-55 (citing Zeibell).
Under Provost, therefore, the causes of action asserted by McGill's parents share the same fate as McGill's actions as to parties dismissed with immunity under the IIA. Thus, summary judgment was appropriate in favor of the Academy as to McGill's parents' claims. Further, for the same reasons that McGill's claim against NPUC was properly dismissed under summary judgment, his parents' claims against NPUC were also properly dismissed. The remainder of McGill's parents' claims survive along with McGill's own claims.
We affirm in part and reverse in part.
SCHINDLER and COX, JJ., Concur.