FILED
APRIL 16,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
VIRGINIA E. BURNETT, ) ) No. 32177-1-III Appellant, ) ) v. ) ) STATE OF WASHINGTON ) PUBLISHED OPINION DEPARTMENT OF CORRECTIONS, ) ) Respondent, ) ) JOHN DOE GUARD, ) ) Defendant. )
FEARING, J. - Pending before us are three motions: (1) the Washington State
Department of Labor & Industries' (DLI's) motion to remove attorney Tom Scribner
from representing it, (2) Virginia Burnett's motion to disqualifY the Washington State
Attorney General's Office from representing DLI and her, and (3) DLI's motion to
dismiss this appeal. We deny DLI's motion to remove counsel Tom Scribner as moot.
We deny Virginia Burnett's motion to disqualifY the Attorney General's Office. Last, we No. 32177-1-II1
Burnett v. Dep t ofCorr.
J
grant DLI's motion to dismiss the appeal. Therefore, we do not reach the merits of this
appeal.
FACTS
This appeal began as a challenge to the superior court's ruling that DLI, subrogee
to the rights of Virginia Burnett, cannot recover on a worker compensation third party
claim against the Washington State Department of Corrections (DOC) because Burnett
worked in the same employ as the DOC worker who injured Burnett. Burnett, an
instructor at Walla Walla Community College (WWCC or the College), sustained injuries
in the course of employment with WWCC when she taught a class at the Washington
State Penitentiary operated by DOC. Both WWCC and DOC are arms of state
government. As Burnett walked through a metal door of the penitentiary, an eager guard
closed the door on her.
DOC operates twelve prison facilities including eight major prisons and four
minimum-security prisons. The Washington State Penitentiary, opened in 1887 before
statehood, is a DOC men's prison located in Walla Walla. With an operating capacity of
2,200, it is the second largest prison in the state.
Like most states, the state of Washington operates a system of community and
technical colleges to offer an open door to every citizen, regardless of his or her academic
background or experience, at a cost normally within his or her economic means. RCW
28B.50.020. The State Board of Community and Technical Colleges (the Board)
administers the community colleges. RCW 28B.50.020. The state system consists of34
No. 32177-1-III
Burnett v. Dep '( ofCorr.
public, two-year institutions of higher education which specialize in vocational, technical,
worker retraining, and university transfer programs. The state of Washington is divided
into 30 community college districts with District 20 encompassing the counties of Asotin,
Columbia, Garfield and Walla Walla. RCW 28B.50.040.
WWCC serves District 20. The principal WWCC campus lies east of the city of
Walla Walla. The college also operates a branch campus in Clarkston, 100 miles to the
east, and a teaching facility at the Washington State Penitentiary. The college has an
average annual enrollment of about 9,000 students.
Research and experience show that providing education and vocational training to
criminal offenders reduces recidivism. As part of its mission to rehabilitate offenders,
DOC strives to provide every inmate with basic academic skills as well as educational
and vocational training designed to meet the assessed needs of the offender. RCW
72.09.460. The legislature authorized correction facilities to implement postsecondary
education programs with accredited community colleges. RCW 72.09.465.
DOC and the Board collaborate to provide higher education to those incarcerated
in the state prison system, including the receipt of education from WWCC for prisoners
confined to the Washington State Penitentiary. DOC and the Board could have, but did
not, established a separate legal entity to conduct the joint undertaking. RCW
39.34.030(4). Pursuant to the Interlocal Cooperation Act, chapter 39.34 RCW, the two
entities yearly enter an interagency agreement that governs this collaboration. The
relevant agreement imposed on the Board the duty to hire teachers and instructors and on
No. 32177-1-111
Burnett v. Dep 't 0/ Corr.
DOC the duty to pay for instruction services. Section 3.1 of the agreement obligated the
Board to hire 4,330 full time instructors and DOC to pay the Board up to $18,230,000 for
instructional services. Sections 5.5 of the interagency agreement established the
continued independence of DOC and community colleges. The paragraph reads:
5.5 INDEPENDENT CAPACITY: The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and shall not be considered/or any purpose to be employees or agents o/the other party.
Clerk's Papers (CP) at 68 (emphasis added).
WWCC hired Virginia Burnett as a basic skills instructor at the WWCC
penitentiary campus. The College and Burnett signed a professional personnel contract.
Virginia Burnett's 2009 W-2 identified her employer as "Walla Walla Community
College." CP at 56.
On March 9, 2009, Virginia Burnett went to the Washington State Penitentiary to
teach a class. As she walked through a metal door, a prison guard closed the door. The
door crushed Burnett's shoulders and upper torso. Burnett sustained an industrial injury
for which DLI paid worker compensation benefits.
PROCEDURE
RCW 51.24.030(1), a section of the Industrial Insurance Act, Title 51 RCW,
authorizes actions against third person tortfeasors, such as DOC and its guard, for one
who recovers worker compensation. The statute reads:
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
No. 32177-1-II1
Burnett v. Dep 'f ofCorr.
and compensation are provided under this title, the injured worker or beneficiary may elect to seek damages from the third person.
(Emphasis added.) If the injured worker elects to bring suit against a third party
tortfeasor, the worker must give notice to DLI. RCW 51.24.030(2). DLI may file a
notice of statutory interest in the recovery. RCW 51.24.030(2).
In the event the injured worker fails to give notice of election to DLI, DLI may
demand, by a certified letter, that the worker elect whether or not to pursue a claim
against the third party tortfeasor. RCW 51.24.070. If the employee fails to elect to
pursue a claim, DLI may take assignment of the tort claim and bring action against the
tortfeasor. RCW 51.24.050(1). Any recovery obtained by DLI is distributed as follows:
(a) The department ... shall be paid the expenses incurred in making the recovery including reasonable costs of legal services; (b) The injured worker ... shall be paid twenty-five percent of the balance of the recovery made ... PROVIDED, That in the event of a compromise and settlement by the parties, the injured worker ... may agree to a sum less than twenty-five percent; (c) The department ... shall be paid the compensation and benefits paid to or on behalf of the injured worker ... by the department ... ; and (d) The injured worker ... shall be paid any remaining balance.
RCW 51.24.050(4).
Virginia Burnett never notified DLI that she intended to pursue a claim against
DOC or its employee who prematurely closed the prison door. On May 19,2009, DLI
sent a certified letter to Burnett. The letter demanded that Burnett elect whether or not to
pursue a claim against DOC and its employee. Burnett signed the mail received receipt.
Burnett did not respond to the letter.
Burnett v. Dep 't ofCorr.
On August 6,2009, DLI wrote Virginia Burnett again and informed her that she
had assigned her third party claim to DLI and DLI would pursue the claim against DOC
and the guard. DLI contracted with Walla Walla attorney Tom Scribner to file suit
against DOC. On March 1,2012, Scribner filed the suit, in Walla Walla Superior Court,
under the name of Virginia Burnett against DOC and "John Doe Guard" for negligence
under RCW 51.24.030(1). CP at 1-2.
An assistant attorney general appeared in the lawsuit and defended DOC. The
superior court granted DOC's motion for summary judgment. The superior court
reasoned that WWCC and DOC are branches of the same entity, and thus the DOC guard
and Virginia Burnett were employed by the same employer. DLI, under the name of
Virginia Burnett, appealed to this court. The issue on appeal was whether Burnett and
the DOC guard were in the same employ within the meaning ofRCW 51.24.030 such
that the statute barred the suit.
In December, this court reviewed the appeal without oral argument. After
conference, we sent to counsel, pursuant to RAP 12.1(b), a list of questions to answer.
The questions surrounded whether each branch of state government separately paid
premiums to DLI to cover its respective employees. We directed the parties to answer
the questions by January 7, 2015.
On January 2, 2015, Tom Scribner, on behalf of Virginia Burnett and DLI, filed a
motion for extension of time to answer the questions. On January 5, DOC, through
Assistant Attorney General Jason Brown, also requested an extension of time to answer
Burnett v. Dep't ofCorr.
the questions. On January 5, Assistant Attorney General Anastasia Sandstrom appeared
on behalf ofDLI. Sandstrom also filed, on behalf ofDLI, a motion to dismiss the appeal.
Because of the motion to dismiss, we held in abeyance the motion to extend time to
answer the panel's questions. DLI's motion to dismiss did not comply with our rules.
We directed DLI to comply with the rules by providing legal argument in support of the
motion to dismiss. DLI complied with this direction and also moved to disqualifY Tom
Scribner as counsel for DLI.
Tom Scribner withdrew from representation of Virginia Burnett and DLI. Walla
Walla attorney Janelle Carman substituted for Scribner as attorney for Burnett. Assistant
Attorney General Anastasia Sandstrom continues to represent DLI. Assistant Attorney
General Jason Brown, on behalf of DOC, filed a joinder in the motion to dismiss the
appeal. Carman, on behalf of Virginia Burnett, filed an objection to dismissal of the
appeal and a motion to disqualifY the Attorney General's Office from representing her
and DLI based on a conflict.
LAW AND ANALYSIS
ISSUE 1: Whether the Washington State Attorney General's Office is disqualified
by reason ofa conflict ofinterest from representing DLI because the office also
represents Virginia Burnett or the opposing party, DOC?
ANSWER 1: No. The assistant attorney general has not represented Burnett.
Burnett has no standing to assert a conflict ofinterest between DLI and DOC.
We first address the motion to disqualifY filed by Virginia Burnett. Burnett's
Burnett v. Dep't ofCarr.
motion to disqualify the Attorney General's Office has two facets. First, she claims that
the Attorney General's Office cannot represent both DLI and her. Second, she argues
that the Attorney General's Office cannot represent both DLI and DOC.
Virginia Burnett's motion implies that the Attorney General's Office represents
DLI and her. This first argument fails because the Attorney General's Office has never
claimed or sought to represent Burnett. The notice of appearance of Assistant Attorney
General Anastasia· Sandstrom is only on behalf ofDLI. DLI sued under Virginia
Burnett's name, but DLI has the right to use Burnett's name under RCW 51.24.050(1).
DLI is a real party in interest. Dep't ofLabor & Indus. v. Wendt, 47 Wn. App. 427, 431,
735 P.2d 1334 (1987), overruled on other grounds by State v. WWJ Corp., 138 Wn.2d
595,980 P.2d 1257 (1999). Burnett may also be a party in interest, but she is now
represented separately by Janelle Carman.
Virginia Burnett also seeks to disqualify the Attorney General's Office from
representing DLI because DLI's interests conflict with DOC's and DOC is already
represented by the Attorney General's Office. The attorney general is a constitutionally
recognized office that acts as the attorney for state officers. CONST. art. III, § 21.
Numerous statutes implement this constitutional directive and charge the attorney general
with representing state agencies in litigation. Under RCW 43.10.030:
The attorney general shall: (1) Appear for and represent the state before the supreme court or the court of appeals in all cases in which the state is interested; (2) Institute and prosecute all actions and proceedings for, or for the use of the state, which may be necessary in the execution of the duties of
Burnett v. Dep 't ofCarr.
any state officer; (3) Defend all actions and proceedings against any state officer or employee acting in his or her official capacity, in any of the courts of this state or the United States.
Under RCW 43.10.040:
The attorney general shall also represent the state and all officials, departments, boards, commissions and agencies of the state in the courts, and before all administrative tribunals or bodies of any nature, in all legal or quasi legal matters, hearings, or proceedings.
The Washington state attorney general is the legal adviser to DLI. RCW
51.52.140. The attorney general represents DLI in court litigation concerning worker
compensation claims. Aloha Lumber Corp. v. Dep 't ofLabor & Indus., 77 Wn.2d 763,
774,466 P.2d 151 (1970). RCW 72.09.530 implies that the Attorney General's Office is
the attorney for DOC. See also McKee v. Dep 't ofCarr. , 160 Wn. App. 437, 248 P.3d
115 (2011).
A private law firm would be precluded from representing competing interests in
the same lawsuit, such as the interests held here by DLI and DOC. RPC 1.7(a)(1); RPC
1.lO(a). Ethical rules and case law treat the State Attorney General's Office differently,
however. To the extent that the attorney general is not a party to an action or personally
interested in a private capacity, the attorney general may represent opposing state
agencies in a dispute. Reiter v. Wallgren, 28 Wn.2d 872, 879-80, 184 P.2d 571 (1947);
State ex rei. Comm'r ofTransp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d
734, 773 (Tenn. Ct. App. 2001); 7 AM. lUR. 20 Attorney General § 20 (2007). A
different assistant attorney general can and should be assigned to handle inconsistent
No. 32177-I-III
functions. Wash. Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466,480,663 P.2d 457
(1983).
We could, but do not, rest our decision on the motion to disqualify the Attorney
General's Office on the basis that Washington law permits any conflict. We base denial
of the motion on another ground. We hold Virginia Burnett lacks standing to assert the
disqualification of the Attorney General's Office since any conflict of interest is between
other parties.
Although no Washington decision has addressed standing needed to seek
disqualification of counsel, the majority, if not universal, rule is that only a party who has
been represented by the conflicted attorney has standing. See In re Yarn Processing
Patent Validity Litig., 530 F.2d 83, 88 (5th Cir. 1976); Info. Sys. Assocs. v. Phuture
World, Inc., 106 So. 3d 982, 984-85 (Fla. Dist. Ct. App. 2013); Great Lakes Constr., Inc.
v. Burman, 186 Cal. App. 4th 1347, 1356,114 Cal. Rptr. 3d 301 (2010); 7 AM. JUR. 2D
Attorneys at Law § 188 (2007); see generally Eric C. Surette, Annotation, Standing of
Person, Other than Former Client, to Seek Disqualification ofAttorney in Civil Action,
72 A.L.R.6TH 563 (2012). The standing rule draws its strength from the logic of the rule
itself, which is designed to protect the interests of those harmed by conflicting
representations rather than serve as a weapon in the arsenal of a party opponent. Mills v.
Hausmann-McNally, SC, 992 F. Supp. 2d 885, 891 (S.D. Ind. 2014). Since the Attorney
General's Office has not represented Virginia Burnett, she lacks standing to forward her
motion of disqualification.
The dissent wishes that the majority would not address the question of whether the
Attorney General's Office should be disqualified and claims that our opinion on this
question is dicta. We address this issue because Virginia Burnett filed a motion to
disqualifY the Attorney General's Office. We need to resolve the motion to disqualifY in
order to resolve DLI's motion to dismiss. Ifwe disqualified the office, we would need to
determine if the pleadings filed by the office, including the motion to dismiss, should be
stricken.
ISSUE 2: Must DLI demonstrate payment ofTom Scribner's bill before it may
substitute other counsel?
ANSWER: No. Virginia Burnett does not hold standing to assert the pecuniary
interest ofan attorney.
Virginia Burnett additionally argues that this court should not entertain a motion to
dismiss because the Attorney General's Office has not properly appeared for DLI and
thus any motion filed by the Attorney General's Office on behalf of the appellant is
invalid. Burnett claims that, under RCW 2.44.040, DLI must first provide proof that DLI
paid Tom Scribner's attorney fees.
RCW 2.44.040 reads:
The attorney in an action ... may be changed at any time before judgment or final determination as follows: (1) Upon his or her own consent, filed with the clerk or entered upon the minutes; or (2) Upon the order of the court, or a judge thereof, on the application of the client, or for other sufficient cause; but no such change can be made
until the charges of such attorney have been paid by the party asking such change to be made.
The structure of the statute creates an ambiguity. The reader is uncertain as to whether
the last clause requiring payment of the attorney extends to both subsection (1) and (2) of
the statute. Stated differently, the statute could be read to require evidence of payment
only when the withdrawal occurs by court order or the statute could be read to demand
proof of payment even if the attorney withdraws by consent. Noted veteran attorney Tom
Scribner voluntarily withdrew when he received differing instructions from his clients.
We choose not to construe the statute, but rather hold that Virginia Burnett lacks
standing to assert the dictates ofRCW 2.44.040. We applaud Burnett's desire to protect
the pecuniary interests of an attorney, but the attorney should assert any right to payment.
One lacks standing to assert an argument, when one has no proprietary, personal, or
pecuniary rights at stake. Aguirre v. AT&T Wireless Servs., 109 Wn. App. 80, 85, 33
PJd 1110 (2001); In re Estate of Wood, 88 Wn. App. 973, 976, 947 P.2d 782 (1997).
ISSUE 3: Does DLI hold the prerogative to seek dismissal ofthe appeal without
approval of Virginia Burnett?
ANSWER 3: Yes.
Virginia Burnett next argues that she has an interest in the appeal and this lawsuit
since she may have a reasonable expectation of receiving some of the recovery.
Accordingly, she contends that DLI lacks the statutory authority to dismiss the appeal in
contravention to her wishes and to her detriment. She maintains that allowing DLI to
No. 32177-1-III Burnett v. Dep 't o/Corr.
assume an action for the benefit of the individual and control both ends of the
controversy creates an inherent conflict to the detriment of the worker and is therefore
violative of public policy. We reject Virginia Burnett's arguments because Washington
statutes demand a contrary outcome. Those same statutes afforded Burnett the
opportunity to control this litigation and this appeal, but Burnett neglected to assert those
rights.
We recognize that Virginia Burnett is a real party in interest to this dispute. She
could recover some of any recovery against DOC. Nevertheless, DLI is also a real party
in interest and DLI gained the right to control the litigation, including the right to dismiss
the suit, when Burnett assigned her rights to the third party claim to DLI.
Because Virginia Burnett assigned her third party claim to DLI, DLI is the real
party in interest as taught in Department o/Labor and Industries v. Wendt, 47 Wn. App.
427, 735 P.2d 1334 (1987), overruled on other grounds by State v. WWJ Corp., 138
Wn.2d 595, 980 P.2d 1257 (1999). Victor Wendt assaulted Roger Heinrich in the course
of the latter's employment. Heinrich, a Seventh-day Adventist minister, refused to
pursue any claim against Wendt for religious reasons and thereby assigned his cause of
action to DLI who had paid Heinrich worker compensation benefits. DLI filed the
lawsuit under the name of Heinrich, but amended the caption, at the request of Heinrich,
to name the department as the plaintiff. On appeal, Wendt argued that DLI could not
pursue the action in its own name. This court disagreed. We held that, pursuant to RCW
51.24.050, DLI could proceed, as the assignee, under its own name. DLI was the real
I Burnett v. Dep 't ofCorr.
party in interest by reason of the assignment. The case does not necessarily preclude the
I employee from also being a real party in interest, however. !! According to one line of cases, the real party in interest is the person who
possesses the right sought to be enforced. Peyton Bldg., LLC v. Niko's Gourmet, Inc.,
I I 180 Wn. App. 674, 680, 323 P.3d 629 (2014); Riverview Cmty. Grp. v. Spencer & i Livingston, 173 Wn. App. 568, 576,295 P.3d 258 (2013), rev 'd on other grounds, 181 ! Wn.2d 888, 337 P.3d 1076 (2014); Philip A. Trautman, Joinder ofClaims and Parties in
Washington, 14 GONZ. L. REv. 103, 109 (1978). Under another line of decisions, the real
party in interest is the person who, if successful, will be entitled to the fruits of the action.
Nw. Indep. Forest Mfrs. v. Dep't ofLabor & Indus., 78 Wn. App. 707, 716, 899 P .2d 6
(1995). General doctrine recognizes that there may be more than one real party in
interest. Nw. Indep. Forest Mfrs., 78 Wn. App. at 716; 3A KARLB. TEGLAND,
WASHINGTON PRACTICE: RULES PRACTICE CR 17, at 420 (6th ed. 2013). Virginia
Burnett may be a real party in interest with DLI, but drawing this conclusion does not
resolve whether DLI must obtain Burnett's approval to dismiss the appeal.
RCW 51.24.050(1) and RCW 51.24.070 control the question of whether DLI
possesses the right to dismiss the appeal without Virginia Burnett's approval. The first
statute reads:
(1) An election not to proceed against the third person operates as an assignment ofthe cause ofaction to the department or self-insurer, which may prosecute or compromise the action in its discretion in the name ofthe injured worker, beneficiary or legal representative.
(Emphasis added.) RCW 51.24.070 reads, in relevant part:
(1) The department ... may require the injured worker or beneficiary to exercise the right of election under this chapter by serving a written demand by registered mail, certified mail, or personal service on the worker or beneficiary. (2) Unless an election is made within sixty days of the receipt of the demand, and unless an action is instituted or settled within the time granted by the department ..., the injured worker or beneficiary is deemed to have assigned the action to the department ....
(4) If the department ... has taken an assignment of the third party cause of action under subsection (2) of this section, the injured worker or beneficiary may, at the discretion of the department or self-insurer, exercise a right of reelection and assume the cause of action subject to reimbursement of litigation expenses incurred by the department or self insurer.
Under RCW 51.24.070, Virginia Burnett could have protected her rights to recover by
notifying the department of an election to pursue the suit. Even today, she could ask the
department to permit her to exercise a right of reelection. She has not requested
reelection.
In Duskin v. Carlson, 136 Wn.2d 550,965 P.2d 611 (1998), our Supreme Court
precluded the injured worker from pursuing a third party claim against the tortfeasor,
when the worker failed to respond to a letter from DLI demanding that he give notice if
he elected to pursue the claim. Because of the lack of a response, DLI settled the claim
with the tortfeasor's liability insurance carrier. The Supreme Court has also held that
DLI owns sole discretion in determining whether to compromise its right to
reimbursement of worker compensation benefits. Hadley v. Dep 't ofLabor & Indus., 116
Wn.2d 897, 903, 814 P.2d 666 (1991).
15 No. 32177-I-III Burnett v. Dep 't ofCorr.
RCW 51.24.050(1) grants DLI the right to "compromise" the third party claim and
omits any reference to any veto power in the injured worker. No Washington decision
addresses the meaning of "compromise" in the context of this statute. Virginia Burnett
argues that the term does not extend to dismissing the suit without recovery. She
contends that, as a matter of public policy, DLI has a duty to ensure that Burnett's
interests are pursued diligently. Accordingly, DLI can settle but not dismiss the case.
Virginia Burnett's contention disregards logic. Burnett advocates holding DLI to
a duty of good faith when compromising a claim assigned to it. We would be reading
additional language into the statute if we reached this conclusion. Without a duty of good
faith, presumably DLI could settle for $1,000 or even $1. These hypotheticals suggest
the right to compromise includes the right to dismiss.
Decisions hold, in other contexts, that an assignee of a chose in action assumes all
rights of the assignor, which rights should include the right to dismiss the chose without
consent of the assignor. An assignee of a chose in action takes those rights coextensive
with those of the assignor at the time of the assignment. Home Indem. Co. v. McClellan
Motors, Inc., 77 Wn.2d 1,3-4,459 P.2d 389 (1969); Steinmetz v. Hall-Conway-Jackson,
Inc., 49 Wn. App. 223,227, 741 P.2d 1054 (1987). Burnett argues that these Washington
decisions lie in another context, but Burnett cites no decisions to support her contrary
position.
Other jurisdictions recognize that an assignment transfers all rights to the property
assigned. As a general rule, an assignee stands in the shoes of the assignor and succeeds
No. 32177-1-III Burnett v. Dep 't ofCorr.
to all the rights and remedies of the latter. City ofCincinnati ex rei. Ritter v. Cincinnati
Reds, LLC, 150 Ohio App. 3d 728, 2002-0hio-7078, 782 N.E.2d 1225, 1234. Once an
assignor makes an assignment, he or she no longer retains control of the assigned claim.
Foley v. Grigg, 144 Idaho 530, 164 P.3d 810, 813 (2007).
The dissent writes that Virginia Burnett had no option but to assign her rights to
DLI in order to gain worker compensation benefits. The law reads to the contrary.
Under RCW 51.24.030(2), Burnett could have elected to bring suit against DOC and
retain control of the lawsuit. She failed to exercise this option.
The dissent would rule in favor of Virginia Burnett by holding that the DOC guard
was not in the "same employ" of Burnett for purposes of the worker compensation
statute, RCW 51.24.030(1). No Washington decision addresses this question. The
overwhelming rule, if not universal rule, from other jurisdictions is that employees of
separate state agencies are within the same employment, and an injured worker employed
by one agency may not bring a third party complaint for negligence against an employee
of another state agency. Singhas v. N.M State Highway Dep 't, 1997-NMSC-054, 124
N.M. 42, 946 P.2d 645; Rodriguez v. Bd. ofDirs. ofAuraria Higher Educ. Ctr., 917 P.2d
358 (Colo. App. 1996); Colombo v. State, 3 Cal. App. 4th 594, 5 Cal. Rptr. 2d 567
(1991); Linden v. Solomacha, 232 N.J. Super. 29, 556 A.2d 346 (1989); Egeland v. State,
408 N.W.2d 848 (Minn. 1987); State v. Coffman, 446 N.E.2d 611 (Ind. ct. App. 1983);
Wright v. Moore, 380 So. 2d 172 (La. Ct. App. 1979); Osborne v. Commonwealth, 353
S.W.2d 373 (Ky. 1962).
No. 32177-1-III Burnett v. Dep't o/Corr.
A similar rule controls when an employee of one branch of local government sues
an employee of another branch of local government for a work injury. Jones v. Kaiser
Indus. Corp., 43 Cal. 3d 552, 737 P.2d 771, 237 Cal. Rptr. 568 (1987); Pulliam v.
Richmond County Bd. o/Comm'rs, 184 Ga. App. 403, 361 S.E.2d 544 (1987); Holt v.
City o/Boston, 24 Mass. App. Ct. 175,507 N.E.2d 766 (1987); Holody v. City o/Detroit,
117 Mich. App. 76, 323 N.W.2d 599 (1982); Berger v. UG.l Corp., 285 Pa. Super. 374,
427 A.2d 1161 (1981); Walker v. City o/San Francisco, 97 Cal. App. 2d 901, 219 P.2d
487 (1950); De Giuseppe v. City o/New York, 188 Misc. 897,66 N.Y.S.2d 866 (Sup. Ct.
1946), affd, 273 A.D. 1010,79 N.Y.S.2d 163 (1948); Bross v. City o/Detroit, 262 Mich.
447,247 N.W. 714 (1933). In Thompson v. Lewis County, 92 Wn.2d 204, 595 P.2d 541
(1979), the Washington high court held that an employee of the county road department
who was injured while driving a county truck in the course of his employment on a
county road could not maintain an action against the county. The employee was limited
to his rights under the worker compensation act, despite his claim that the county was
serving in a dual capacity as both his employer and as a governmental agency with the
duty to properly construct and maintain county roads for the use and benefit of the public.
The dissent cryptically writes that "due process includes the right to appeal."
Dissent at 2. Although we have no quarrel with this proposition, the dissent cites no
authority for the proposition and fails to analyze whether anyone's due process rights are
violated. Virginia Burnett was given notice and an opportunity to control this litigation,
including control over any appeal, but she forewent that right. She does not argue that
her assignment to DLI denied her due process.
The dissent laments that the majority engages in fact-finding, and it desires to
remand the case on undeveloped issues, such as intent, waiver, notice, and disclosure.
Dissent at 4. Nevertheless, the motion to dismiss does not raise any issue of waiver. No
party asserts an issue of waiver. The only issue before the court on the motion to dismiss
is assignment. The DLI, by unrefuted declaration, establishes that it sent notice to
Virginia Burnett that she needed to assert her rights or else she assigned her third party
claim to DLI. Burnett failed to assert her rights. Burnett avers no facts to the contrary.
She does not contend she lacked notice or there was a failure to disclose. Fact-finding
implies a need to resolve disputes of facts. Burnett has raised no issue of fact requiring
an evidentiary hearing. If Burnett raised an issue of fact, we would not hesitate to
remand to the trial court.
ISSUE 4: Should this court dismiss the appeal?
ANSWER 4: Yes.
DLI's motion to dismiss was filed after our judicial conference. RAP 18.2 grants
us discretion whether to grant the motion under these circumstances. Stated differently,
even if we agree that DLI holds the prerogative to dismiss the appeal, we could deny the
motion and address the merits of the appeal.
We exercise our discretion in favor of granting the motion for several reasons.
First, even if we were to issue an opinion and reverse the trial court, DLI could
19 No. 32177-1-111
voluntarily dismiss the lawsuit on remand to the superior court. CR 41(a)(l)(B). Thus,
any decision on the merits would likely lack any practical import. Although we can issue
an opinion in a moot case, we generally avoid issuing a decision that lacks an impact on
the parties.
RAP 18.2 allows only a "party who has filed a notice of appeal" to file a motion to
dismiss. One might argue that Virginia Burnett was the only party who filed the appeal,
since DLI was not mentioned as the appellant on the notice of appeal. Burnett does not
raise this argument. We would reject such an argument since RCW 51.24.050(1) and
case law consider DLI to be the real party in interest.
The dissent wishes this court to ignore a motion to dismiss brought by the party
who controls the appeal even though the motion is unopposed by the responding party, in
order to rule in favor of a party who assigned her rights to the control of the litigation on
a question on which other jurisdictions have ruled against that party. Then the dissent
wishes this court, after ruling in favor of a party, to remand this case to the trial court to
resolve facts that are undisputed and to address four irrelevant issues not raised by the
parties.
The dissent may be troubled because ofDLI's wasting of attorneys' and courts'
time and resources by pursuing this case and then abandoning the case shortly before the
issuance of this court's opinion. We concur in the dissent's umbrage.
CONCLUSION
We deny Virginia Burnett's motion to disqualifY the State of Washington Attorney
General's Office from representing DLI in this appeal. We grant DLI's motion to
dismiss the appeal.
I CONCUR:
I Kors~
BROWN, AC.J. (dissenting) - Today, we fail to answer Virginia Burnett's sole
assignment of error: Whether the trial court erred in summarily dismissing her
negligence claim against the Department of Corrections (DOC) under the "same
employ" provision of RCW 51.24.030(1). Ms. Burnett contends, and I agree, the prison
guard causing her injuries and her were not in the "same employ" and therefore, the trial
court erred. I would reach the merits and reverse, not dismiss. After all, Ms. Burnett
had little or no choice in assigning her claim against DOC to the Department of Labor
and Industries (DLI) in exchange for workers compensation benefits. Even so, she
stood to statutorily share in any excess recovery over the benefits paid to her under
RCW 51.24.050(4). DLI hired Tom Scribner to sue DOC in Ms. Burnett's name, giving
her reason to believe her interests were being pursued at the same time as DLI's
interests. Ms. Burnett's appeal is not moot. Dismissing her appeal now, without
addressing the merits, unnecessarily and unfairly harms her and all workers similarly
situated who seek a recovery in excess of Oll's subrogation interest
Complicating this appeal is our process. Instead of deciding this appeal in
December 2014 without argument, inquiries were later sent to appellate counsel calling
for supplemental briefing. Our intrusion, at least in hind-sight, likely exposed possible No. 32177-1-111 Burnett v. DOL- Dissent
tactical and strategic problems about DLI's wisdom of pitting one state department
against another and then appealing to reinstate a claim for which the State, the
sovereign of both executive departments, could become liable on an excess judgment.
The original briefing was silent on these topics. Unsurprisingly, motions began to fly,
including those the majority describes. Mr. Scribner withdrew; Ms. Burnett's private
attorney appeared, and finally, an attorney general appeared for DLI and asked us to
dismiss this appeal. Of course, DOC joined that motion. But due process includes the
right to appeal.
Ms. Burnett fairly argues, in essence, the State is now the wolf guarding the
henhouse because it too has an interest in the outcome. Sovereign immunity does not
exist. Thus, she essentially asks, if DLI wants to abandon her and its acknowledged
subrogation interest in this summary judgment appeal, why not let her pursue her claim
on her own with her own counsel? I tend to agree with her. I reason DLI by seeking
dismissal under these circumstances has acted against workers' compensation
principles and unfairly impaired Ms. Burnett's statutory right to share an excess
recovery for her injuries. DLI improperly uses the assignment to shield the State,
striking against her interests instead of advancing them. Misled by DLI, the majority
dismisses this appeal and incorrectly reasons the assigned error is thus moot.
disagree with the majority approach for three reasons.
No. 32177-1~11I Burnett v. DOL- Dissent
First, I would hold: (1) Walla Walla Community College employed Ms. Burnett as
a "worker" under the Industrial Insurance Act, Novenson v. Spokane Culvert &
Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979); (2) The "dual capacity
doctrine" does not operate to preclude DLI's suit, see 16 DAVID K. DEWOLF & KELLERW.
ALLEN, WASHINGTON PRACTICE SERIES: TORT LAw AND PRACTICE, § 12: 11, at 489 (4th ed.
2013); and (3) under RCW 51.24.030(1), Ms. Burnett was not in the "same employ" as
the DOC guard.
While no Washington case addresses whether employees of a state agency are
deemed state employees for workers' compensation purposes, three cases seem most
important to the majority, Singhas v. N.M. State Highway Dep't, 1997-NMSC-054, 124
N.M. 42, 946 P.2d 645 (1997); Colombo v. State, 3 Cal. App. 4th 594, 5 Cal. Rptr. 2d
567 (1991); and Rodriguez v. Bd. of Dirs. of Auraria Higher Educ. Ctr., 917 P.2d 358
(Colo. App. 1996). These cases offer little guidance. The facts and statutory schemes
are distinct from our appeal. In Singhas, the court gave effect to New Mexico legislative
intent, but Washington has no statute or definition on point. 946 P.2d at 646. In
Colombo, both the employer and the defendant were branches of one larger state
agency. 3 Cal. App. 4th at 595-96. And, unlike in Rodriquez, no evidence here shows
one industrial insurance policy covers all state employees, or any judgment would be
paid out of the same account as premiums for that policy. 917 P.2d at 358-59. Here,
No. 32177-1-111 Burnett v. DOL- Dissent
we should interpret RCW 51.24.030( 1) solely within the holistic statutory context of Title
51 RCW.
Even if dismissal is an option, I would reach the merits and hold our issue is not
moot because it is a matter of public interest, an authoritive decision is desirable to
guide public officers, and the issue is likely to reoccur. Sorenson v. Bellingham, 80
Wn.2d 547, 558,496 P.2d 512 (1972). Dismissing eviscerates Ms. Burnett's right to
appeal, and harms her and those who may follow her. The State's pecuniary interests
should not be elevated over the holistic design of our workers' compensation scheme.
Second, considering all motions, no opinion should be issued dismissing this
appeal merely because we have discretion to write an opinion, especially if doing so
causes unnecessary harm. Exercising discretion on unreasonable or untenable I grounds and applying inapplicable law to presumed facts outside our record is an abuse
of discretion. Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012). Better would
have been to stay this appeal by Chiefs order and remand to the trial court with leave
and direction to make any required fact-finding and rulings on the motions and get us a
properly developed record with resolved facts on matters including intent, waiver,
notice, and disclosure. We are not a fact-finding court; it is incorrect to presume no
material facts remain on undeveloped collateral issues. Best is for us to decide the
merits of the presented appeal and allow litigation of new issues at the trial court.
Third, I do not agree with opining on self-generated, collateral issues concerning
the disqualification of the attorney general, alleged conflicts of interest, an attorney's
pecuniary interests, Ms. Burnett's attorney-client relationships, and her standing to
defend herself on these collateral matters. And, extensively opining on the merits while
specifically not reaching or deciding the merits is at least dicta, and at worst advisory.
See Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110,
122,231 P.3d 219 (2010) (noting appellate courts do not give advisory opinions).
In conclusion, our workers' compensation laws should be interpreted to benefit
the workers who must forego private causes of action against their employers in
exchange for workers compensation. These laws were not designed to shield third
parties, like DOC, who are not the injured party's employer. RCW 51.24.030(1).
Because I would reach the merits and reverse without addressing collateral matters and
allow litigation of new issues at the trial court, I respectfully dissent.
~)Aa Brown, A.C.J.