En Banc. Brachtenbach, J. Dore, C.j., Utter, Dolliver, Andersen, Durham, Smith, and Guy, JJ., and Callow, J. Pro Tem., concur. Johnson, J., did not participate in the disposition of this case.
Respondent, Douglas K. DuVon, sued his former employer Rockwell International Corporation (Rockwell), for injuries from a machine designed and constructed by Rockwell. The trial court denied petitioner Rockwell's motion for summary judgment. The Court of Appeals affirmed. DuVon v. Rockwell Int'l Corp., 57 Wash. App. 465, 788 P.2d 607 (1990). We affirm.
A brief statement of undisputed facts is necessary to frame the issues. Rockwell was a prime contractor with the United States Department of Energy (DOE) to operate the
Hanford Nuclear Reservation. During its contract Rockwell designed and constructed equipment for on-site use, including portable exhausters.
In 1987 Westinghouse Hanford Company (Westinghouse) replaced Rockwell as prime contractor. Pursuant to the DOE contract, Westinghouse took possession of all equipment used by Rockwell at Hanford, including the portable exhausters. Respondent, who had worked for Rockwell since 1983, became an employee of Westinghouse in the same job classification. Five days after becoming an employee of Westinghouse, respondent was injured in an incident involving one of the portable exhausters.
The portable exhausters removed fumes from buried tanks to permit in-tank photographs. The exhausters had a series of heating and filtering systems to remove contaminants before they were passed though a radiation monitor and released through the exhaust stack. Respondent, an electrician, and others were called to determine why an exhauster which was hooked up to a tank had failed. Apparently an inlet butterfly valve remained open while an exhaust pump operated, thereby permitting the exhausting of gasses even though the ventilation/filter system had failed. Respondent was exposed to toxic levels of ammonia gas, the characteristic odor of which was masked by other gasses. According to an affidavit from respondent's medical expert, respondent has suffered serious permanent lung damage with substantial disability.
Respondent pursued an industrial insurance claim under his employment by Westinghouse. This separate action is respondent's election to seek damages from a third person (Rockwell) not in his same employ, as authorized by RCW 51.24.030(1). Respondent alleges negligence by his former employer, Rockwell, in design and construction of the exhauster and negligence in failure to provide adequate procedure guidance to shut the inlet butterfly valve when the ventilation/filter system was down. A Westinghouse critique report attributed the apparent cause of the incident to design, procedure inadequacy, and personnel.
In the trial court Rockwell's theory was that Rockwell was not a third party under the Industrial Insurance Act and was therefore immune from suit under RCW 51.04.010. Alternatively, Rockwell argued that if it does not have Industrial Insurance Act immunity, it is not liable under tort or product liability principles.
In its brief to the Court of Appeals, Rockwell stated the issue this way:
Is DuVon's exclusive remedy for his work-related injury a worker's compensation award, when he was injured on the worksite by equipment built by Rockwell, and when the equipment was built especially for the job site and never entered the stream of commerce?
Brief of Appellant, at 1.
In its petition for review brief Rockwell reframed the issues as follows:
A. Whether Rockwell owed a duty of care to persons other than its own employees in building equipment solely for use on its worksite, and not for resale into the stream of commerce?
B. Whether Douglas Duvon, who was a Rockwell employee until five days before his injury, can assert a claim against Rockwell for third party liability under the worker's compensation statute, even though Duvon was injured while working at the same job classification, pay rate and worksite as he had while employed by Rockwell?
Brief of Petitioner (Petition for Review), at 1.
Throughout, petitioner has relied heavily upon Corr v. Willamette Indus., Inc., 105 Wash. 2d 217, 713 P.2d 92 (1986).
1. May a former employer be a third party under RCW 51.24.030(1) when the employee is injured by a device designed and constructed by the former employer and when the employee is injured 5 days after he is employed by a company which succeeded, by contract, to possession and use of the faulty machine? We hold the former employer is a third party and therefore subject to suit.
2. Does a former employer which allegedly was negligent in design, construction and in establishing operational procedures for a ...