Oral Argument December 2, 2013.
Appeal from Thurston Superior Court. Docket No: 11-2-00307-5. Date filed: 08/03/2012. Judge signing: Honorable Wm Thomas Mcphee.
Hans E. Johnsen, for appellants.
Robert W. Ferguson, Attorney General, and Matthew Kuehn, Assistant, for respondents.
Paul A. Neal on behalf of Washington State Patrol Troopers Association, amicus curiae.
AUTHOR: J. Robin Hunt, J. We concur: Lisa Worswick, C.J., Joel Penoyar, J.
[179 Wn.App. 892] ¶ 1 Douglas and Kay Merino  appeal the superior court's denial of their motion for summary judgment and granting of the State's motion for summary judgment in
their action for disability benefits against the Washington State Patrol (WSP). Merino argues that Washington law entitles him to disability compensation as long as he remains disabled from injuries incurred in the line of duty, even after WSP terminated his employment as a trooper for violating WSP regulations. Holding that under RCW 43.43.040, Merino's disability benefits vested when he became disabled in the line of duty and that he is entitled to continuing disability payments, we reverse the superior court's summary judgment rulings and remand for entry of summary judgment in favor of Merino, reinstatement of his disability benefits, and calculation of attorney fees to which he is entitled under RCW 49.48.030.
A. WSP Disability Status
¶ 2 The parties agree on the facts. Douglas Merino joined the WSP in 1978 and served as a fully commissioned trooper until October 11, 1988, when he suffered a herniated disc and injuries to his left neck and left shoulder after being ejected from a patrol vehicle while on duty. As a result of these injuries, Merino was unable to meet the physical requirements for his WSP trooper position and went without pay from 1989 through 1991. On February 10, 1994, then-Chief Roger Bruett placed Merino on full job-related disability status, for which he received monthly payments equal to one-half of his previous active-status monthly [179 Wn.App. 893] salary. Sometime thereafter, Merino found employment as an investigator with the Department of Labor and Industries (L& I).
¶ 3 On November 1, 1999, more than five years after becoming disabled, Merino received a certified letter that the WSP sent to all troopers on disability status at that time. This letter (1) confirmed that Merino was an " employee on inactive status due to a disability," (2) informed him that he must continue to comply with WSP regulations and policies, (3) required him to sign and to return the letter, and (4) threatened potential loss of his disability payments if he did not do so. Clerk's Papers (CP) at 212. Merino promptly signed and returned the letter.
B. Insurance Fraud; WSP Termination
¶ 4 In 2005 and 2006, while still on WSP disability status, Merino became involved in an insurance fraud scheme: He attempted to defraud Farmers Insurance of $60,000 and lied to insurance investigators questioning this claim. On January 28, 2008, a jury convicted Merino of two felony counts of fraud based on this false insurance claim. Three days later, WSP received a letter from Merino asking to retire. On February 1, WSP ...