Appeal from Superior Court of Kittitas County. Docket No: 94-2-00258-1. Date filed: 06/23/95. Judge signing: Hon. Michael E. Cooper.
Authored by Frank L. Kurtz. Concurring: John A. Schultheis, Ray E. Munson.
The opinion of the court was delivered by: Kurtz
KURTZ, J. This is a wrongful death lawsuit, arising out of a truck accident that occurred in Washington State, involving two residents of British Columbia, Canada, who died in the accident. The estate of Dosanjh (Dosanjh) requests reversal of the order for summary judgment in favor of the estate of Bhatti (Bhatti) dismissing Dosanjh's complaint. Dosanjh also requests entry of summary judgment in favor of Dosanjh affirming the application of Washington law to this wrongful death lawsuit. We reverse the trial court and grant Dosanjh's motion for summary judgment.
The facts are not disputed by the parties. The case arises from a semi trailer accident that occurred on July 5, 1993. Ranjit Bhatti was driving and fell asleep at the wheel, rolled the truck, and killed himself and his passenger, Amarjit Dosanjh. The accident occurred near Ellensburg, Washington.
Mr. Dosanjh owned the truck and operated under a "Standard Owner/Operator Contract" with TNT Roadfast/John F. Enright Freight Inc., a long haul trucker operating out of Ontario, Canada. Under this contract, Mr. Dosanjh operated as an independent contractor. TNT/Enright paid Mr. Dosanjh by the load. TNT/Enright maintained liability insurance for activities conducted under its contract with Mr. Dosanjh, including the acts of Mr. Bhatti. TNT/Enright also paid for workers' compensation coverage in British Columbia for both Mr. Dosanjh and Mr. Bhatti. TNT/Enright filed employer's reports of injury with the Workers' Compensation Board of British Columbia on behalf of the widows of both men. The widow of Mr. Bhatti filed her claim with the British Columbia Workers' Compensation Board and it has been accepted by the Board. The widow of Mr. Dosanjh did not file a claim with the British Columbia Workers' Compensation Board. Instead, Mrs. Dosanjh filed a complaint for wrongful death against the estate of Bhatti in Kittitas County.
Bhatti moved for summary dismissal of the suit. The court granted summary judgment in a memorandum decision dated June 23, 1995. The court noted that as a general rule, both jurisdictions prohibit lawsuits between fellow workers within their jurisdictions. The court concluded that Washington's workers' compensation scheme conflicted with British Columbia's because Washington specifically excludes truck owners/operators. For that reason, Washington allows this wrongful death lawsuit between the decedent estates of these two employees. British Columbia on the other hand includes these workers in its Workers' Compensation Act (B.C. Act) and, thus, no suit would be allowed. The court then analyzed the significant relationships of the parties with each jurisdiction and found the most significant relationship favored British Columbia. It then applied the B.C. Act and dismissed the case.
In reviewing summary judgment, this court engages in the same inquiry as the trial court. RAP 9.12; Walmer v. Department of Labor & Indus., 78 Wash. App. 162, 165-66, 896 P.2d 95, review denied, 128 Wash. 2d 1003 (1995). Here, the review is de novo because the material facts are not disputed and the trial court's decision involved only a question of law. Walmer, 78 Wash. App. at 165-66.
Sections 9 and 10 of the B.C. Act provide in part as follows:
9. (1) Where by the law of the country or place in which the injury or industrial disease occurs the worker or his dependents are entitled to compensation in respect of it, they shall be bound to elect whether they will claim compensation under the law of that country or place or under this Part, and to give notice of the election. If the election is not made and notice given, it shall be presumed that they have elected not to claim compensation under this Part . . . .
10. (1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker, dependant or member of the family of the worker is or may be entitled against the employer of the worker, or against any employer within the scope of this Part, or against any worker, in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies. Workers' Compensation Act, R.S.C., ch. 437, sec.sec. 9, 10 (1993) (Can.).
The dispositive questions here are:
1. Does section 9 allow a wrongful death action between co-workers covered by the B.C. Act in the foreign ...