* Francisco Entila And Erlinda Entila, Apps. V. Gerald Cook And Jane Doe Cook, Res.

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 73116-5-1	FRANCISCO ENTILA and ERLINDA
ENTILA, husband and wife, and the
marital community composed thereof,
Appellants,
v.
GERALD COOK and JANE DOE
COOK, husband and wife, and the
marital community composed thereof,
Respondents.
DIVISION ONE
PUBLISHED OPINION
FILED: 	October 5, 2015
CD
Leach, J. — Francisco Entila appeals the trial court's summary dismissal
of his tort claim against his fellow employee, Gerald Cook, and its consideration
of challenged evidence. 	The trial court decided that RCW 51.08.013 provided
Cook immunity if the alleged tort occurred on the jobsite. 	Because Cook must
also show that he was working at the time to establish immunity, we reverse.
The 	trial 	court 	considered 	Entila's 	receipt 	of 	workers' 	compensation
benefits when deciding 	Cook's motion to 	dismiss. 	RCW 51.24.100 and the
collateral 	source 	rule 	bar consideration 	of this evidence 	in a 	third-party tort
action. 	The trial court erred when it did so.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73116-5-1/2
FACTS
Just after 6:30 a.m. on 	February 18, 	2010, Cook left his work shift at
Boeing and walked to his car to go home. 	He drove out of the Boeing parking lot
onto a Boeing access road. Cook had not cleared his frosted windshield. 	He did
not see Entila, another Boeing employee who had just finished his shift, crossing
the access road. 	Cook's vehicle struck and injured Entila.1
Allstate 	insured 	Cook. 	Allstate 	claimed 	coemployee 	immunity 	barred
Entila's injury claim against Cook. 	Entila disagreed. 	Entila filed suit on October
11, 2012. 	On October 12, 2012, he filed a motion for summary judgment on the
immunity 	issue. 	On 	February 	14, 	2013, 	the 	trial 	court denied 	the 	motion,
concluding that the issue presented a disputed question of fact for the jury. 	After
a 	new judge 	was 	assigned 	the 	case, 	Allstate 	filed 	a 	motion 	for 	summary
judgment. 	This judge dismissed 	Entila's 	lawsuit, 	concluding 	that Cook 	had
immunity.
Entila appeals.
1 Cook has moved to strike allegedly improper references to extraneous
facts in Entila's opening brief. 	As we noted in O'Neill v. City of Shoreline, 183
Wn. App. 15, 24, 332 P.3d 1099 (2014), motions to strike waste everyone's time
when there is an opportunity (as there was here) to include argument in the
party's brief identifying the allegedly extraneous materials. 	We deny Cook's
motion.
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NO. 73116-5-1/3
STANDARD OF REVIEW
We 	review 	a 	trial 	court's 	summary 	judgment 	order 	and 	associated
evidence rulings de 	novo.2 	We 	perform the 	same inquiry as the trial court,
viewing all facts and drawing all inferences in favor of the nonmoving party.3 	CR
56(c) requires summary judgment when the pleadings, affidavits, depositions,
and admissions on file demonstrate that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a matter of law. 	We
review issues of statutory interpretation de novo, with the goal of giving effect to
the legislature's intent.4
ANALYSIS
This 	case 	tests 	the 	boundary 	for 	coemployee 	tort 	immunity. 	Entila
contends that the tortfeasor must be performing work for the employer at the time
of 	injury to 	have 	immunity. 	Cook 	asserts 	that 	RCW 	51.08.013's 	broader
definition of "acting in the course of employment" determines if a coemployee
tortfeasor has immunity. 	We agree with Entila.
The Industrial Insurance Act (MA), Title 51 RCW, entitles workers injured in
the course of employment to compensation "in lieu of any and all rights of action
whatsoever against any person whomsoever."5 	But the act also provides that if a
2 Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
3 Folsom. 135 Wn.2d at 663.
4 Burns v. City of Seattle. 161 Wn.2d 129, 140, 164 P.3d 475 (2007).
5 RCW 51.32.010.
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NO. 73116-5-1/4
third person, not in the same employ, is liable for the worker's injury, the worker
may elect to recover damages from the third person.6 	Washington courts have
limited 	the 	"not 	in the 	same 	employ" 	restriction. 	To 	establish 	coemployee
immunity, a tortfeasor must prove two things: 	(1) that the tortfeasor and the
injured person had the same employer and (2) that the tortfeasor was acting in
the scope and course of his or her employment at the time of injury.7
Here, the parties dispute how a court decides if a coemployee is acting in
the scope and course of employment when resolving an immunity claim. 	Cook
asserts that a court must use the RCW 51.08.013(1) definition of "acting in the
course of employment." 	Entila contends that this definition only applies when
deciding if an injured worker is entitled to compensation. 	He argues a worker
claiming 	immunity 	must 	prove 	more—that 	he 	was 	performing 	work 	for 	the
employer at the time of injury.
RCW 51.08.013(1) defines "acting in the course of employment":
"Acting in the course of employment" means the worker acting at
his or her employer's direction or in the furtherance of his or her
employer's business which shall include time spent going to and
from 	work 	on 	the 	jobsite, 	as 	defined 	in 	RCW 	51.32.015 	and
51.36.040, insofar as such time is immediate to the actual time that
the worker is engaged in the work process in areas controlled by
his or her employer, except parking area. It is not necessary that at
the time an injury is sustained by a worker he or she is doing the
work on which his or her compensation is based or that the event is
6 RCW 51.24.030(1).
7 Evans v. Thompson. 124 Wn.2d 435, 444, 879 P.2d 938 (1994).
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NO. 73116-5-1/5
within the time limits on which industrial insurance or medical aid
premiums or assessments are paid.
While this definition applies to all provisions of Title 51 RCW,8 it does not answer
our question. 	Unfortunately for our analysis, the phrase the legislature defined
does not include all words contained in the second part of the court's test—
"acting in the scope and course of employment."
Neither the text nor the structure of the applicable statutes provides an
answer. 	Therefore, we look 	to 	legislative purpose and 	history for guidance.
Because the IIA is remedial in nature, courts liberally construe its provisions "'in
order to achieve its purpose of providing compensation to all covered employees
injured 	in their employment, 	with doubts 	resolved 	in favor 	of the 	worker.'"9
Additionally, the 	legislature has shown 	a 	strong 	policy 	in favor of third-party
actions.10 These considerations support narrow immunity for coemployees.
The Washington 	Supreme 	Court 	has 	described 	the 	purpose 	of 	RCW
51.08.013:
It is 	clear 	that 	the 	legislature, 	in 	enacting 	the 	pertinent
legislation, intended to extend coverage to employees injured while
going to and from work on the employer's premises, and to exclude
8 RCW 51.08.010 (words used in Title 51 RCW "shall have the meaning
given in this chapter").
9 Dep't of Labor & Indus, v. Rowley, 185 Wn. App. 154, 161, 340 P.3d 929
(2014) (quoting Dennis v. Dep't of Labor & Indus.. 109 Wn.2d 467, 470, 745 P.2d
1295 (1987)), review granted. 183 Wn.2d 1007 (2015).
10 	Evans. 	124 Wn.2d 	at 437 	("These 	legislative declarations mandate
policy decisions by the courts which give appropriate recognition to the third party
action.").
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NO. 73116-5-1/6
from coverage injuries occurring to an employee in a parking area
maintained either on or off the employer's premises.[11]
While RCW 51.08.013 eliminated the requirement that a worker be performing
work for the employer when injured to qualify for compensation, nothing in the
history leading to this statute's enactment12 suggests that the legislature intended
that it also expand the scope of coemployee immunity. 	Given the legislative
policy favoring third-party actions, one would expect any expansion of immunity
to be clearly stated.
Entila relies on Olson v. Stern.13 	This case also arose out of a collision in
a 	Boeing parking lot. 	Olson, a worker performing his job, operated a 	motor
scooter, and Stern, an office worker on his way home, drove his personal car.
These vehicles collided in the parking lot.14 	The trial court dismissed Olson's
personal injury claim against Stern on the basis of coemployee immunity.15 	The
Supreme Court reversed and remanded for trial.16
The court identified two reasons for its decision. 	First, although Olson was
"'acting in the course of employment'" and covered by workers' compensation,
the parking 	lot was not Stern's jobsite and 	he was not covered 	by worker's
11 In re Hamilton. 77 Wn.2d 355, 362, 462 P.2d 917 (1969).
12 See Hamilton. 77 Wn.2d at 359-62.
13 65 Wn.2d 871, 400 P.2d 305 (1965).
14 Olson. 65 Wn.2d at 872.
15 Olson, 65 Wn.2d at 874.
16 Olson, 65 Wn.2d at 877.
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NO. 73116-5-1/7
compensation statutes.17 	Second, at the time of the collision, Stern was "neither
'acting 	at 	his employer's direction' 	nor 	'in the furtherance 	of his employer's
business.'"18 	The 	court 	concluded 	its 	opinion 	with 	the 	following 	pertinent
observations:
That respondent Sam Stern and appellant Arthur Olson had
the same employer became thus a matter of pure coincidence, a
remote relationship giving rise to no legal rights and upon which no
duties or immunities between them depended. 	Respondent Sam
Stern, being at the time neither a workman in the course of his
employment 	nor 	as 	to 	him in an 	area 	covered 	by workmen's
compensation, was as a stranger both to appellant Arthur Olson
and the Workmen's Compensation Act. 	So being, he derived no
immunity 	from 	suit 	under 	the 	Workmen's 	Compensation 	Act.
Appellants' 	action 	against him was 	accordingly 	maintainable 	as
against a third party.[19]
Cook claims that the court found 	no 	immunity 	in Olson 	because the
collision occurred 	in a 	parking 	lot. 	As a 	result, 	Stern could 	not satisfy the
statutory definition of "acting in the course of employment." 	Entila and Cook
each claim a court of appeals decision supports his reading of Olson.
Entila cites Taylor v. Cadv20 for the proposition that an employee's work
status, and not the place of an accident, determines the employee's immunity.
Taylor sued Cady for injuries he suffered in their common employer's parking
17 Olson, 65 Wn.2d at 877.
18 Olson. 65 Wn.2d at 877.
19 Olson. 65 Wn.2d at 877.
20 18 Wn. App. 204, 566 P.2d 987 (1977).
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NO. 73116-5-1/8
lot.21 	Taylor appealed 	the 	dismissal 	of his lawsuit on the 	basis of Cady's
coemployee immunity.22 	Taylor claimed that Cady had no immunity because
RCW 51.08.013 excludes a parking lot from the definition of "acting in the course
of employment."23 	Division Three of this court affirmed the dismissal. 	In rejecting
Taylor's argument, the court stated that the Olson court rejected Stern's immunity
claim because he was not acting in the course of his employment, not because
the collision occurred in a parking lot.24 	As a result, the court concluded that a
worker causing an accident in a parking lot had coemployee immunity if he was
performing work at the time of the accident.25
Cook 	responds 	with Heim v. 	Longview 	Fibre 	Co.26 	The 	Heim court
disagreed with Division Three's reading of Olson:
We 	believe 	that 	the 	trial 	court 	and 	respondent 	have
incorrectly construed the ruling in Olson. 	There is some support for
their reading of Olson in Taylor v. Cady, 18 Wn. App. 204, 566 P.2d
987 (1977), which interpreted Olson as restricting the definition of
"course of employment." 	However, we believe that the better view
of Olson is that the worker was not covered because the accident
occurred 	in a 	"parking area," and, 	therefore, 	under the express
provision of RCW 51.08.013, there was no coverage, despite the
fact that he may still have been on the jobsite while leaving work.
In other words, 	but for the express parking area exception, the
worker in Olson would have had coverage because he was acting
21 Taylor. 18 Wn. App. at 205.
22 Taylor. 18 Wn. App. at 204-05.
23 Taylor. 18 Wn. App. at 206.
24 Taylor. 18 Wn. App. at 207.
25 Taylor. 18 Wn. App. at 207-08.
26 41 Wn. App. 745, 707 P.2d 689 (1985).
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NO. 73116-5-1/9
in the course of employment while 	on 	the employer's premises
under the "going and coming" rule.[27]
This quotation appears to reflect some confusion about the issue in Olson. 	The
Olson court did not resolve coverage for the injured worker, Olson, but immunity
for Stern. 	Additionally, the Heim opinion addresses the issue of coverage for a
worker injured off the jobsite and not engaged in work.
Our Supreme 	Court's 	observations about the 	purpose 	of coemployee
immunity in the context of officers and directors provide more guidance than
Taylor or Heim:
The 	purpose 	of 	the 	exclusive 	remedy 	provision 	of 	the
workers' compensation law is to give immunity to the employer and
coemployees acting in the scope and course of their employment.
Its purpose is not to create artificial immunity to one whose only
connection with the corporate employer's business is having his or
her name on a 	piece of paper as an officer and/or director. 	To
provide immunity as a matter of law denies the right of a third party
action 	against the 	person 	actually 	responsible for 	the 	injury 	or
death. 	That would frustrate the direction of the Legislature that the
Department 	be 	reimbursed 	from 	proceeds 	of 	such 	third 	party
action.[28]
These 	observations 	seem 	equally 	applicable 	to 	Cook. 	Cook's 	only
connections with his employer at the time were the place he parked his car and
the route he chose to leave the parking lot. 	Like Stern in Olson, Cook was a
stranger to 	his 	coemployee and the IIA. 	Given the purpose of coemployee
27 Heim. 41 Wn. App. at 748.
28 Evans. 124 Wn.2d at 447.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73116-5-1/10
immunity, our case law's clear requirement that an employee acted within both
the 	course 	and 	scope 	of 	employment to 	establish 	immunity, 	the 	legislative
preference for third-party actions, 	and the absence of any legislative 	history
supporting Cook's position, we conclude that the trial court erred. 	To establish
immunity, Cook must show that he was doing work for Boeing at the time of the
accident.
Entila finally argues that RCW 51.24.100 and the common law collateral
source rule barred the trial court from considering evidence of Entila's receipt of
benefits to determine Cook's immunity. 	Cook responds that those rules do not
apply when litigating coemployee immunity.
RCW 51.24.100 states,
The 	fact 	that 	the 	injured 	worker 	or 	beneficiary 	is 	entitled 	to
compensation under this title shall not be pleaded or admissible in
evidence 	in 	any 	third 	party 	action 	under 	this 	chapter. 	Any
challenge 	of the 	right to 	bring 	such 	action 	shall 	be 	made 	by
supplemental pleadings only and shall be decided by the court as a
matter of law.
This statute clearly prohibits evidence that Entila received benefits.
Additionally, the common law collateral source rule also bars admission of
evidence of any payment that does not come from the tortfeasor.29 	Washington
courts uniformly apply the collateral 	source rule in compensation claims and
29 Johnson v. Weyerhaeuser Co., 	134 Wn.2d 795, 798, 953 P.2d 800
(1998).
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NO. 73116-5-1/11
personal injury cases.30 	Both this rule and RCW 51.24.100 barred consideration
of Entila's receipt of benefits to decide Cook's immunity. 	Also, as reflected in
Olson, this evidence was not relevant to whether Entila could sue Cook because
an 	injured 	worker's 	eligibility 	for 	benefits 	does 	not 	resolve 	a 	coemployee's
immunity claim.31
Cook argues that Orris v. Lingley32 allows consideration of this evidence.
We disagree. 	As authorized by RCW 51.24.100, the Orris court considered this
evidence to 	decide the threshold 	question 	of whether the exclusive 	remedy
provisions of the IIA applied to Orris.33 	Because Orris had accepted benefits, he
could not deny that the act applied to his third-party claim.34 	The court did not
consider this evidence to resolve an issue of coemployee immunity. 	Entila has
not 	made any claim 	that the act does 	not apply to 	his claim 	against Cook.
Instead, he asserts that the act does not provide Cook with immunity.
CONCLUSION
Because a tortfeasor claiming coemployee immunity must show that he
was doing work for the employer to establish this immunity and Cook has not
30 Johnson. 134 Wn.2d at 804-05.
31 Olson. 65Wn.2dat877.
32 172 Wn. App. 61, 288 P.3d 1159 (2012).
33 Orris, 172 Wn. App. at 69-71.
34 The Orris opinion does not 	reflect that Orris objected to the court's
consideration of this evidence. 	Thus, neither the trial court nor the reviewing
court was asked to consider the application of RCW 51.24.100.
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NO. 73116-5-1/12
done so, we reverse and 	remand for further proceedings consistent with this
opinion.
V^-£tfJ£<£-^C
WE CONCUR:
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