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Rose v. Anderson Hay & Grain Co.

Court of Appeals of Washington, Division 3

September 25, 2014

Charles Rose, Appellant ,
v.
Anderson Hay and Grain Company, Respondent

Appeal from Kittitas Superior Court. Docket No: 10-2-00441-9. Judge signing: Honorable Michael E Cooper. Judgment or order under review. Date filed: 04/16/2011.

Gregory G. Staeheli (of Law Office of Gregory Staeheli ), for appellant.

Ronald A. Van Wert (of Etter McMahon Lamberson Clary & Oreskovich PC ), for respondent.

Authored by Stephen M. Brown. Concurring: Robert E. Lawrence-Berrey, Kevin M. Korsmo.

OPINION

Page 441

[183 Wn.App. 786] Brown, A.C.J.

¶ 1 Charles Rose sued his former employer, Anderson Hay and Grain Company (AHG), in Kittitas County Superior Court for his alleged wrongful discharge in violation of public policy after a similar suit was dismissed in federal court because he had failed to timely exhaust his federal administrative remedies. The state court dismissed his action, reasoning his federal administrative remedies would have been adequate to vindicate the public policy had he timely filed his administrative complaint. Mr. Rose appealed and this court affirmed. Our Supreme Court remanded the matter back to this court for reconsideration in light of that court's recent opinion in Piel v. City of Federal Way, 177 Wn.2d 604, 306 P.3d 879 (2013). See Rose v. Anderson Hay & Grain Co., 180 Wn.2d 1001, 327 P.3d 613 (2014). On reconsideration, we again affirm the trial court.

FACTS

¶ 2 Mr. Rose worked as a commercial truck driver for AHG from March 2006 through November 2009. He alleges AHG terminated him for refusing to complete his shift, [183 Wn.App. 787] which he claims would have forced him to exceed the maximum allowed hours-of-service under federal regulations and would have further required him to violate federal regulations by falsifying time sheets.

¶ 3 On March 3, 2010, Mr. Rose sued in federal court, arguing his termination from AHG violated the Commercial Motor Vehicle Safety Act (CMVSA), 49 U.S.C. ch. 311. AHG requested dismissal based on 49 U.S.C. § 31105(b), which provides that the United States secretary of labor has exclusive jurisdiction over initial complaints under the CMVSA. On August 6, 2010, the federal court dismissed Mr. Rose's complaint based on lack of jurisdiction. The dismissal came three months after the expiration of the time limit for filing for administrative relief. Mr. Rose did not pursue a federal appeal.

¶ 4 In September 2010, Mr. Rose sued in state court, alleging wrongful termination in violation of public policy arising from alleged violations of 49 U.S.C. § 31105. Based partly on Korslund v. DynCorp Tri-Cities Services, Inc., 156 Wn.2d 168, 183, 125 P.3d 119 (2005), AHG requested summary judgment dismissal of Mr. Rose's claim, arguing he failed to satisfy the jeopardy element necessary to maintain a public policy claim. AHG further argued the CMVSA provides comprehensive remedies that serve to protect the specific public policy identified by Mr. Rose and even included punitive damages. Thus,

Page 442

an adequate alternative means of promoting the public policy existed, which, as a matter of law, foreclosed Mr. Rose's public policy cause of action.

¶ 5 The trial court agreed, and on April 18, 2011, the court granted AHG's motion for summary judgment and entered judgment dismissing Mr. Rose's complaint. The trial court partly reasoned that had Mr. Rose timely pursued his federal administrative remedies, they would have been adequate to vindicate the public policy, and concluded: " The remedies available under 49 U.S.C. § 31105(b) are adequate to protect public policy on which Mr. Rose relies [183 Wn.App. 788] as a matter of law." Clerk's Papers (CP) at 116. This court affirmed, holding " the trial court correctly dismissed Mr. Rose's claim of wrongful termination in violation of public policy in light of federal statutes protecting truck drivers who refuse to violate safety regulations." Rose v. Anderson Hay & Grain Co., ...


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