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Burnett v. Department of Corrections

Court of Appeals of Washington, Division 3

April 16, 2015

Virginia E. Burnett , Appellant ,
The Department of Corrections , Respondent

Appeal from Walla Walla Superior Court. Docket No: 12-2-00167-8. Judge signing: Honorable John W Lohrmann. Judgment or order under review. Date filed: 12/23/2013.

Janelle Carman and John C. Julian (of Carman Law Office ), for appellant.

Robert W. Ferguson, Attorney General, and Jason D. Brown, Assistant, for respondent Department of Corrections.

Robert W. Ferguson, Attorney General, and Anastasia R. Sandstrom, Assistant, for the Department of Labor and Industries.

Authored by George B. Fearing. Concurring: Kevin M. Korsmo. Dissenting: Stephen M. Brown.


[187 Wn.App. 162] George B. Fearing, J.

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¶ 1 Pending before us are three motions: (1) the Washington State Department of Labor and Industries' (DLI) motion to remove attorney Tom Scribner from representing it, (2) Virginia Burnett's motion to disqualify the Washington State Attorney General's Office from representing DLI and her, and (3) DLI's motion to dismiss this appeal. We deny DLI's motion to remove counsel Tom Scribner as moot. We deny Virginia Burnett's motion to disqualify the Attorney General's Office. Last, we grant [187 Wn.App. 163] DLI's motion to dismiss the appeal. Therefore, we do not reach the merits of this appeal.


¶ 2 This appeal began as a challenge to the superior court's ruling that DLI, subrogee to the rights of Virginia Burnett, cannot recover on a worker compensation third party claim against the Washington State Department of Corrections (DOC) because Burnett worked in the same employ as the DOC worker who injured Burnett. Burnett, an instructor at Walla Walla Community College (WWCC or

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College), sustained injuries in the course of employment with WWCC when she taught a class at the Washington State Penitentiary operated by DOC. Both WWCC and DOC are arms of state government. As Burnett walked through a metal door of the penitentiary, an eager guard closed the door on her.

¶ 3 DOC operates twelve prison facilities including eight major prisons and four minimum-security prisons. The Washington State Penitentiary, opened in 1887 before statehood, is a DOC men's prison located in Walla Walla. With an operating capacity of 2,200, it is the second largest prison in the state.

¶ 4 Like most states, the State of Washington operates a system of community and technical colleges to offer an open door to every citizen, regardless of his or her academic background or experience, at a cost normally within his or her economic means. RCW 28B.50.020. The State Board for Community and Technical Colleges (Board) administers the community colleges. RCW 28B.50.020. The state system consists of 34 public, two-year institutions of higher education, which specialize in vocational, technical, worker retraining, and university transfer programs. The state of Washington is divided into 30 community college districts with " District 20" encompassing the counties of Asotin, Columbia, Garfield, and Walla Walla. RCW 28B.50.040.

[187 Wn.App. 164] ¶ 5 WWCC serves District 20. The principal WWCC campus lies east of the city of Walla Walla. The college also operates a branch campus in Clarkston, 100 miles to the east, and a teaching facility at the Washington State Penitentiary. The college has an average annual enrollment of about 9,000 students.

¶ 6 Research and experience show that providing education and vocational training to criminal offenders reduces recidivism. As part of its mission to rehabilitate offenders, DOC strives to provide every inmate with basic academic skills as well as educational and vocational training designed to meet the assessed needs of the offender. RCW 72.09.460. The legislature authorized correction facilities to implement postsecondary education programs with accredited community colleges. RCW 72.09.465.

¶ 7 DOC and the Board collaborate to provide higher education to those incarcerated in the state prison system, including the receipt of education from WWCC for prisoners confined to the Washington State Penitentiary. DOC and the Board could have established a separate legal entity to conduct the joint undertaking, but did not. RCW 39.34.030(4). Pursuant to the Interlocal Cooperation Act, chapter 39.34 RCW, the two entities yearly enter an interagency agreement that governs this collaboration. The relevant agreement imposed on the Board the duty to hire teachers and instructors and on DOC the duty to pay for instruction services. Section 3.1 of the agreement obligated the Board to hire 4,330 full time instructors and DOC to pay the Board up to $18,230,000 for instructional services. Section 5.5 of the interagency agreement established the continued independence of DOC and community colleges. The paragraph reads:

5.5 INDEPENDENT CAPACITY: The employees or agents of each party who are engaged in the performance of this Agreement shall continue to be employees or agents of that party and [187 Wn.App. 165] shall not be considered for any purpose to be employees or agents of the other party.

Clerk's Papers (CP) at 68 (emphasis added).

¶ 8 WWCC hired Virginia Burnett as a basic skills instructor at the WWCC penitentiary campus. The College and Burnett signed a professional personnel contract. Virginia Burnett's 2009 W-2 identified her employer as " Walla Walla Community College." CP at 56.

¶ 9 On March 9, 2009, Virginia Burnett went to the Washington State Penitentiary to teach a class. As she walked through a metal door, a prison guard closed the door. The door crushed Burnett's shoulders and upper torso. Burnett sustained an industrial injury for which DLI paid worker compensation benefits.


¶ 10 RCW 51.24.030(1), a section of the Industrial Insurance Act, Title 51 RCW, authorizes

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actions against third person tortfeasors, such as DOC and its guard, for one who recovers worker compensation. The statute reads:

If a third person, not in a worker's same employ, is or may become liable to pay damages on account of a worker's injury for which benefits and compensation are provided under this title, the injured worker or beneficiary may elect to seek damages from the third person.

(Emphasis added.) If the injured worker elects to bring suit against a third party tortfeasor, the worker must give notice to DLI. RCW 51.24.030(2). DLI may file a notice of statutory interest in the recovery. RCW 51.24.030(2).

¶ 11 In the event the injured worker fails to give notice of election to DLI, DLI may demand, by a certified letter, that the worker elect whether or not to pursue a claim against the third party tortfeasor. RCW 51.24.070. If the employee fails to elect to pursue a claim, DLI may take assignment of the tort claim and bring action against the tortfeasor. [187 Wn.App. 166] RCW 51.24.050(1). Any recovery obtained by DLI is distributed as follows:

(a) The department ... shall be paid the expenses incurred in making the recovery including reasonable costs of legal services;
(b) The injured worker ... shall be paid twenty-five percent of the balance of the recovery made ... PROVIDED, That in the event of a compromise and settlement by the parties, the injured worker ... may agree to a sum less than twenty-five percent;
(c) The department ... shall be paid the compensation and benefits paid to or on behalf of the injured worker ... by the department ... ; and
(d) The injured worker ... shall be paid any remaining balance.

RCW 51.24.050(4).

¶ 12 Virginia Burnett never notified DLI that she intended to pursue a claim against DOC or its employee who prematurely closed the prison door. On May 19, 2009, DLI sent a certified letter to Burnett. The letter demanded that Burnett elect whether or not to pursue a claim against DOC and its employee. Burnett signed the mail received receipt. Burnett did not respond to the letter.

¶ 13 On August 6, 2009, DLI wrote Virginia Burnett again and informed her that she had assigned her third party claim to DLI and DLI would pursue the claim against DOC and the guard. DLI contracted with Walla Walla attorney Tom Scribner to file suit against DOC. On March 1, 2012, Scribner filed the suit, in Walla Walla Superior Court, under the name of Virginia Burnett against DOC and " John Doe Guard" for negligence under RCW 51.24.030(1). CP at 1-2.

¶ 14 An assistant attorney general appeared in the lawsuit and defended DOC. The superior court granted DOC's motion for summary judgment. The superior court reasoned that WWCC and DOC are branches of the same entity and, [187 Wn.App. 167] thus, the DOC guard and Virginia Burnett were employed by the same employer. DLI, under the name of Virginia Burnett, appealed to this court. The issue on appeal was whether Burnett and the DOC guard were in the same employ within the meaning of RCW 51.24.030 such that the statute barred the suit.

¶ 15 In December, this court reviewed the appeal without oral argument. After conference, we sent to counsel, pursuant to RAP 12.1(b), a list of questions to answer. The questions surrounded whether each branch of state government separately paid premiums to DLI to cover its respective employees. ...

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