Washington State’s Industrial Insurance Act (IIA), Title 51 RCW, like the workers’ compensation system in other states, creates a no-fault system under which employees are efficiently compensated for workplace injuries and employers are generally immune from civil suits arising from such injuries.  The statute contains a narrow exception that allows an employee to sue an employer for a work-related injury that “results . . . from the deliberate intention of his or her employer to produce such injury.”  RCW 51.24.020.  Last month, in Walston v. Boeing Co., the Washington Supreme Court ruled that this exception does not apply to employees’ claims of asbestos exposure at work, and that such claims are barred by workers’ comp exclusivity.

For many years, the “deliberate intention” exception was effectively limited to physical assaults.  In Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995),the Washington Supreme Court expanded the exception to cover the immediate and observable injuries from use of allegedly toxic substances in the workplace.  Birklidheld that the “phrase ‘deliberate intention’ . . . means the employer [1] had actual knowledge that an injury was certain to occur and [2] willfully disregarded that knowledge.”  The exception is narrowly construed to preserve the “legislative policy mandating employer immunity.”  Nevertheless, because employer Boeing continued to use a new resin that caused immediate and observable injuries in its employees, the Supreme Court held that the affected employees could proceed in tort against Boeing.

Birklid expressly considered and rejected a test used in some other states under which injury was only “substantially certain” to occur – it concluded that certainty of injury was required in Washington State.  Birklidalso rejected the “injury to somebody” approach – i.e., that the employer knew that someone (not necessarily the specific claimant) would be injured due to the employer’s intentional conduct.  Subsequent opinions have affirmed the certainty of injury necessary to avoid pre-emption.  See, e.g., Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 28-29, 109 P.3d 805 (2005) (school could not have “actual knowledge” that injuries to teachers assaulted by disabled student with history of violent behavior were certain as a matter of law, because the student’s behavior was unpredictable and school had taken steps to reduce the risk); Shellenbarger v. Longview Fibre Co., 125 Wn. App. 41, 103 P.3d 807 (2004) (mere exposure to asbestos does not create “certainty” that an employee will develop an asbestos-related disease).  Thus, risk of injury is not enough for an employee to avoid workers’ comp pre-emption and proceed in tort; rather, “the Birklid test can be met in only very limited circumstances where continued injury is not only substantially certain, but certain to occur.” Vallandigham, 154 Wn.2d at 28, 32 (emphasis in original).

In Walston v. Boeing Co., employer Boeing allegedly compelled employees in 1985 to work underneath “moon-suited” remediation contractors removing asbestos-containing pipe insulation in the machine shop.  Boeing supervisors allegedly rejected the employees’ requests for protective equipment and forced them to return to work.  Gary Walston was diagnosed with mesothelioma 25 years later in 2010 and sued in tort, claiming intentional injury based on Boeing’s knowledge by 1985 that even if his mesothelioma was not certain to develop by his compelled exposure, underlying cellular lung damage was certain to occur simply by exposure to asbestos, and that it was substantially certain, if not certain, that someone would develop mesothelioma or some other asbestos-related disease as a result of asbestos exposure.

The Court of Appeal reversed the trial court’s denial of Boeing’s summary judgment motion, and the Supreme Court agreed by a 5-4 vote.  According to the majority, cellular lung injury would not constitute a compensable injury under the IIA.  Even the plaintiff’s experts conceded that Walston’s eventual development of mesothelioma (or any compensable asbestos-related condition) had not been certain to occur simply by his exposure to asbestos; under Birklid, the risk of mesothelioma is not “certainty of injury” to Walston himself, as necessary to avoid workers’ comp pre-emption.  Thus, even if Boeing had actual knowledge that exposure to asbestos would cause asymptomatic cellular-level injury, the controlling Birklid “intentional disregard” standard would not be met.

Walston’s affirmance of the Birklid “intentional disregard” standard – particularly in a case involving a sophisticated employer in the mid-1980s more than a decade after the implementation of OSHA and public awareness of the risks from asbestos exposure – should continue to protect employers from tort claims arising from their employees’ exposure not only to asbestos but other toxins and risks that produce injuries with long latency periods.  For example, employees of landscapers who develop skin cancer and truck drivers who develop emphysema from vehicle fumes should continue to be limited to recovery under the IIA rather than in court.

But this narrow standard remains under attack.  Donna Walston, the representative of Gary Walston’s estate, has filed a motion for reconsideration of the Supreme Court’s opinion looking to garner one more vote there, and at least one legislative leader (not coincidentally, a former asbestos plaintiffs’ lawyer and partner of the plaintiff’s counsel in Walston) plans to propose a change to the IIA that would create tort liability for employers from exposure to asbestos and other toxins that lead to latent conditions that are not immediately observable.  We will continue to keep you informed of developments in this area.