John Riper Ashbaugh Beal
Last week in a case the AGC of Washington intervened in is as amicus in support of The Boeing Company the Supreme Court held in favor of employer immunity under Washington’s workers’ compensation program. The case involves employer liability for asbestos exposure 28 years ago but the Supreme Court’s decision will apply to a wide variety of harmful substance exposures in the workplace and to potential claims against employers for allowing those exposures.
The lawsuit against Boeing went to the heart of the workers’ compensation system which has for over 100 years been a “grand compromise” between Washington employers and their employees. In originally enacting the workers’ compensation program the Washington legislature declared that lawsuits were a terrible way to compensate employees for workplace injuries:
The common law system governing the remedy of workers against employers for injuries received in employment is inconsistent with modern industrial conditions. In practice it proves to be economically unwise and unfair. Its administration has produced the result that little of the cost of the employer has reached the worker and that little only at large expense to the public. The remedy of the worker has been uncertain slow and inadequate.
So the legislature granted employers immunity from workplace injury suits by their employees. In exchange employees receive swift fault-free benefits in the event of compensable injury.
The only exception to employer immunity under the workers’ compensation program is for intentional torts by the employer where “injury results to a worker from the deliberate intention of his or her employer to produce such injury.” The lawsuit against Boeing sought to use that exception as a beachhead for bringing a wider range of lawsuits against employers than had been thought possible.
The claimant was a Boeing employee working in a Boeing plant in the late 1980s. The facility had some asbestos-coated pipe overhead that Boeing was modifying. Although the contractor’s work crew wore protective gear while cutting and handling the pipe the regular Boeing employees on the plant floor did not have protective gear. The claimant was one of those employees and he alleged he was forced to work while asbestos debris “rained down” on him and his work area. But he did not bring any claim until he contracted mesothelioma decades later at which point he sued Boeing.
His estate (he passed away while the suit has been pending) contended that because Boeing knew at the time of exposure that asbestos was harmful Boeing intentionally caused injury to him and that this “deliberate intention” to cause injury should be enough to nullify the employer’s immunity from suit. Boeing responded that it didn’t intend to injure anyone and that even if it knew of employee exposure to asbestos exposure isn’t the same thing as injury. As with most hazardous substances in the workplace the vast majority of people exposed to asbestos don’t ever develop any compensable injury from the exposure. The fact that a workplace exposure created a risk of injury isn’t the same as the employer deliberately intending that one of its employees actually be injured.
The case went to the Supreme Court for a ruling on whether Boeing’s workers’ comp immunity was a complete defense or whether the claimant was entitled to proceed to trial before a jury. By a 5-4 majority the Court ruled that the claim did not fit within the narrow exception to employer immunity and that the lawsuit therefore must be dismissed. The Court emphasized that the statutory exception to employer immunity in “deliberate intention” cases of harm is narrow and that the substantial certainty of the harm to the employee must be present from the employer’s conduct: a risk of harm – even a risk of fatal harm – is not enough.
Because construction contractors generally work on jobsites that don’t belong to them and that may contain hazardous materials that the contractor doesn’t know about or have the ability to control the AGC viewed this case is an important one to the construction industry. The AGC of Washington therefore obtained permission from the Supreme Court to support Boeing’s side of the case with amicus briefing explaining why allowing employees to sue their own employer any time the employer allows exposure to a potentially hazardous material would be an unwise change to current law.
John Riper of the AGC’s Legal Affairs Committee wrote the AGC’s amicus brief. He is managing partner with Ashbaugh Beal.