Washington: Employee Can Sue Co-Employee in Tort for Injuries Sustained in After-Hours Accident

Adopting the dominant rule discussed in Larson’s Workers’ Compensation Law, Ch. 111, § 111.03, the Supreme Court of Washington held that a co-employee enjoys immunity under the exclusive remedy provisions of the state’s workers’ compensation law only when that co-employee is acting within the course and scope of the employment. Accordingly, the Court affirmed a decision allowing one co-employee, Entila, to maintain a negligence action against another, Cook, when Entila was struck and injured by an auto driven by Cook as Entila walked across an access road toward his own auto at the end of a work shift. The employer controlled both the access road and the adjacent parking lot and Cook, who also had just finished his shift, was heading home. That Entila collected workers compensation benefits for his injuries was not controlling, said the Court. The Court reasoned that although RCW 51.08.013 established benefit eligibility and employer immunity, it did not control third party immunity, which was guided by RCW 51.24.030. Not only did the statutory sections use different language, they served different purposes. To be immune from suit, Cook was required to show that he was “in the same employ.” Citing earlier decisions, the Court indicated Cook was, therefore, required to show that at the time of the accident he was still within the course and scope of his employment. He failed to do so.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is the co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Entila v. Cook, 2017 Wash. LEXIS 72 (Jan. 12, 2017)

See generally Larson’s Workers’ Compensation Law, § 111.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law