* Jose Jaimes, Appellant V. Superior Floors & Countertops, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
JOSE JAIMES,
Appellant,
v.
NDTS CONSTRUCTION, INC., a
Washington corporation; PACIFIC
HUTS AND CASTLES, INC, a
Washington corporation; PACIFIC
HUTS AND CASTLES CONSTRUC
TION, a Washington business; GREG
QUINN, an individual and/or agent;
DALE QUINN, an individual and/or
agent; DIXIE QUINN, an individual
and/or agent; MARY QUINN, an
individual and/or agent; PAVEL
STRIZHEUS, an individual and/or
agent; TIMOFEY STRIZHEUS, an
individual and/or agent; VASILIY
STRIZHEUS, an individual and/or
agent; NIKOLAY DZYUBAK, an
individual and/or agent; EMPLOYEES,
COMPANIES, and CORPORATIONS
A-D,
Defendants,
SUPERIOR FLOORS &
COUNTERTOPS, LLC, a Washington
corporation,
Respondent.
No. 73148-3-1
ORDER GRANTING
MOTION TO PUBLISH
OPINION
Edward K. Le and Kenneth W. Masters, attorneys at law, have filed a motion to
publish the opinion filed on June 6, 2016. 	Respondent, Superior Floors &Countertops,
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/2
LLC, has filed an answer to the motion to publish. 	The court has determined that said
motion should be granted. 	Now, therefore, it is hereby
ORDERED that the written opinion filed on June 6, 2016, shall be published and
printed in the Washington Appellate Reports.
DATED this 21st day of July, 2016.
FOR THE COURT:
Judge
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2016 	;•; ~'J 	h:\ ^- i
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOSE JAIMES,
Appellant,
NDTS CONSTRUCTION, INC., a
Washington corporation; PACIFIC
HUTS AND CASTLES, INC, a
Washington corporation; PACIFIC
HUTS AND CASTLES CONSTRUC
TION, a Washington business; GREG
QUINN, an individual and/or agent;
DALE QUINN, an individual and/or
agent; DIXIE QUINN, an individual
and/or agent; MARY QUINN, an
individual and/or agent; PAVEL
STRIZHEUS, an individual and/or
agent; TIMOFEY STRIZHEUS, an
individual and/or agent; VASILIY
STRIZHEUS, an individual and/or
agent; NIKOLAY DZYUBAK, an
individual and/or agent; EMPLOYEES,
COMPANIES, and CORPORATIONS
A-D,
Defendants,
SUPERIOR FLOORS &
COUNTERTOPS, LLC, a Washington
corporation,
Respondent.
No. 73148-3-
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 6, 2016
Becker, J. —The appellant, a day laborer who was always paid in cash,
was injured while working on a construction site. There is a genuine issue of
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/2
material fact whether the appellant consented to an employer-employee
relationship with the company that belatedly paid the industrial insurance
premium. 	His third-party suit against that company should not have been
dismissed on summary judgment.
In ruling on a motion for summary judgment, the court must consider the
material evidence and all reasonable inferences therefrom most favorably to the
nonmoving party, in this case appellant Jose Jaimes. 	If reasonable persons
might reach different conclusions, the motion should be denied. 	Novenson v.
Spokane Culvert & Fabricating Co., 91 Wn.2d 550, 552, 588 P.2d 1174 (1979).
In order to provide swift compensation for injured workers, the Washington
legislature replaced the common law fault-based system with the Industrial
Insurance Act, Title 51 RCW. 	Hildahl v. Bringolf, 101 Wn. App. 634, 640, 5 P.3d
38 (2000). review denied. 142 Wn.2d 1020 (2001). The act established a system
of compulsory state industrial insurance under which all awards are paid from the
state industrial insurance fund. 	Hildahl. 101 Wn. App. at 640. 	Under the act, an
employer is immune from civil lawsuits by its employees for nonintentional
workplace injuries. 	Hildahl, 101 Wn. App. at 642. 	But "a third person, not in a
worker's same employ," is not immune and may be subject to suit by an injured
worker. 	RCW 51.24.030(1); Hildahl, 101 Wn. App. at 642.
When a defendant asserts immunity under the act, the question is whether
an employer-employee relationship exists between the defendant and the
plaintiff. See, e^, Novenson. 91 Wn.2d at 552. That is the question in this
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/3
appeal. 	Respondent Superior Floors & Countertops LLC claims employer
immunity from the civil suit brought by Jaimes for his on-the-job injuries.
Jaimes immigrated to the United States from Mexico in 2005. 	He
eventually settled in Washington, where he found temporary, sporadic work as a
day laborer on different construction sites. Around June 2012, another
construction worker he met on the street told him about a potential job. 	Jaimes
went to the jobsite and met with Timofey Strizheus. 	Strizheus hired him to do
small general labor jobs that the contractors had left unfinished. According to
Jaimes, Strizheus told him he would be working for a company called NDTS.
Over the next three months, Strizheus sent Jaimes to work on several different
jobsites. Jaimes was always paid in cash by Strizheus, usually weekly.
On August 27, 2012, Jaimes was on a jobsite trying to install a heavy
second-story window in a residence that was under construction. Jaimes was
standing on a ladder holding the window when the ladder slipped. Jaimes fell to
the ground on his back, and the heavy window fell on top of him, causing major
injuries. A coworker took Jaimes to the hospital.
Afterwards, Jaimes approached Strizheus to ask for information about
health insurance and workers' compensation. Strizheus said Jaimes was
responsible for paying for his own workers' compensation and health insurance
because he was not an employee.
A "Report of Industrial Injury" was filled out by Jaimes' surgeon on August
30, 2012, and filed with the Department of Labor and Industries. The claim listed
"Pacific Huts and Castles" as Jaimes' employer. 	It is unclear how the surgeon
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/4
obtained this information. 	Jaimes, who was heavily medicated in the hospital,
does not recall helping to fill out the form.
Jaimes received industrial insurance benefits. The Department of Labor
and Industries found that no premiums had been paid by Pacific Huts and
Castles Inc. and eventually filed a warrant against NDTS Construction Inc. doing
business as Pacific Huts for the outstanding premiums plus interest. The amount
owed by NDTS was paid in October 2013.
In March 2014, Jaimes filed a civil suit for negligence naming as
defendants "on information and belief a number of individuals and entities
related to Strizheus, including brothers Timofey, Pavel, and Vasily Strizheus;
NDTS; and Pacific Huts. 	Also named as a defendant was respondent Superior
Floors. The trial court dismissed all these defendants on summary judgment,
concluding that they were immune from suit as the employers of Jaimes. Jaimes
appeals only the dismissal of Superior Floors. 	He contends there is no evidence
that he consented to an employment relationship with Superior Floors and
Superior Floors is therefore a third party subject to suit under 51.24.030(1).
In support of summary judgment, the defendants rely on evidence
indicating that the three Strizheus brothers own Superior Floors and that Superior
Floors does business under the trade name of Pacific Huts. 	The defendants
explain that the Pacific Huts trade name was at one time owned by NDTS, a
company partially owned by Timofey Strizheus. They declare that NDTS
became an inactive corporation in 2011 and that NDTS, while remaining the
registered owner of the Pacific Huts trade name, transferred the right to use it to
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/5
Superior Floors. 	Superior Floors signed the contract for construction of the
residence Jaimes was working on when he was injured. 	NDTS is not mentioned
in the contract. 	The outstanding premiums assessed against NDTS by the
Department of Labor and Industries were paid by Superior Floors on behalf of
NDTS.
According to the defendants, the facts outlined above contradict Jaimes'
testimony that he was working for NDTS and prove conclusively that Superior
Floors was actually his employer on the day of the accident. 	But facts known to
the Strizheus brothers about how they structured the ownership of and
relationships among the various Strizheus entities are not dispositive in this
appeal because these facts were not known to Jaimes. When the facts in the
record are taken in the light most favorable to Jaimes, he was told by the
Strizheus brothers that he was working for NDTS. At the time of the accident, he
had no reason to believe his employer was an entity named Superior Floors. 	In
fact, he claims he had never heard of Superior Floors until his attorneys began to
investigate the possibility of a third-party claim.
For purposes of workers' 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. 91 Wn.2d at 553. The right of control
is not by itself determinative. 	Novenson. 91 Wn.2d at 553. "Unlike the common
law, compensation law demands that, in order to find an employer-employee
relation, a mutual agreement must exist between the employer and employee."
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/6
Fisher v. City of Seattle. 62 Wn.2d 800, 804, 384 P.2d 852 (1963). To thrust
upon a worker an employee status to which he has not consented might deprive
him of the valuable right to sue for damages at common law.
When the party asserting the existence of an implied
employment relation is not an employee seeking statutory
compensation, but an employer seeking a defense to a common-
law suit, different social values are at stake. 	In the former situation,
if an employment agreement is established, moderate statutory
benefits are available to the injured worker; however, reaching such
a conclusion in the second situation results in the destruction of
valuable common-law rights to the injured workman.
Novenson. 91 Wn.2d at 554-55. 	For this reason, "the spotlight focuses on the
employee," not on the employer. 	Fisher. 62 Wn.2d at 804.
Jaimes testified that when he began working for the Strizheus brothers, he
knew only that they were in business as NDTS. 	Putting the spotlight on the
employer, the defendants argue that NDTS could not have been Jaimes'
employer because it was an inactive corporation. 	But if NDTS was an inactive
corporation, there is no reason why Jaimes should have known it, and no reason
why he should have discovered or inferred that NDTS had transferred its trade
name to another entity. Thus, whether NDTS did or did not exist at the time of
the accident is irrelevant to the issue of consent. The spotlight is on Jaimes, and
the question is whether he had a mutual agreement with Superior Floors.
Jaimes, alleged by defendants to be an employee of Superior Floors, did
not receive a paycheck or anything else in writing from Superior Floors. The
Strizheus brothers did not inform him at any time before the accident that
Superior Floors was his employer. 	In fact, it does not appear that they kept him
or any other temporary day laborer on the books of any of their companies as an
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/7
employee. 	There is no evidence of "all those things every employer is required
to do, such as employee reporting, payment of industrial insurance premiums,
internal revenue withholding, and general bookkeeping and accounting
concerning these daily laborers." Novenson. 91 Wn.2d at 552-53. When Jaimes
was injured, the Strizheus brothers told him he was not an employee. On this
record, there is not even an inference that Jaimes consented to be employed by
Superior Floors.
The defendants claim Superior Floors is the entity that paid the warrant
filed by the Department of Labor and Industries for the outstanding premiums
assessed against NDTS d/b/a Pacific Huts. The defendants argue that by virtue
of making this belated payment, Superior Floors obtained an employer's
immunity from suit under Manor v. Nestle Food Co., 131 Wn.2d 439, 456, 932
P.2d 628, 945 P.2d 119 (1997). cert, denied. 523 U.S. 1102(1998). 	Manor is
readily distinguished. A self-insured company paid the injured employee more
than $450,000 in medical and time loss benefits directly from its own funds, as it
was required by law to do. Manor. 131 Wn.2d at 449-50. The court held that the
company, having fulfilled its obligation to provide compensation, had the
employer's immunity from a third-party suit. 	Manor. 131 Wn.2d at 452. 	Under
Manor, immunity flows from "'compensation responsibility,' not from premium
responsibility." Hildahl. 101 Wn. App. at 648. Here, Superior Floors paid no
compensation. An after-the-fact payment of a premium does not fulfill an
employer's obligations. 	Hildahl. 101 Wn. App. at 648 n.16. And assuming it was
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/8
Superior Floors that paid the belated premium, the payment does not prove that
Jaimes consented to an employer-employee relationship with Superior Floors.
The defendants contend that Jaimes admitted being the employee of
Superior Floors and that he should now be estopped from arguing inconsistently
with those admissions. Their argument relies on statements by Jaimes during
the litigation that reflect his uncertainty about the relationships among the various
Strizheus entities and his strategy of pleading in the alternative to avoid leaving
out a potentially liable party. 	For example, the complaint states that at the time of
the incident, Jaimes was "an employee of Pacific Huts and Castles, Inc
which, upon information and belief, is a subsidiary of NDTS Construction, Inc.,
and/or Superior Floors and Countertops, LLC and/or Pacific Huts and Castles
Construction." In response to written discovery, Jaimes stated that one of his
employers in 2012 was Pacific Huts, "aka Superior Floors and Countertops, aka
NTDS Construction aka Pavel Strizheus." Such statements do not admit that
Jaimes consented to work for Superior Floors, and they do not create an
estoppel.
In sum, taken in the light most favorable to Jaimes as the nonmoving
party, there is a genuine issue of material fact as to whether Jaimes consented to
an employer-employee relationship with Superior Floors. 	Because the absence
of consent is dispositive, it is unnecessary to address the control prong of the test
8
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 73148-3-1/9
for an employment relationship in the workers' compensation context. Summary
judgment to Superior Floors was improper.1
Reversed.
WE CONCUR:
Cc*t3~
1 Given our disposition of this case, it is unnecessary for us to decide
Jaimes' motion to strike.