AGC SUPPORTS EMPLOYER IMMUNITY FROM SUIT IN SUPREME COURT

Date: March 4th, 2014

A pending lawsuit against The Boeing Company threatens to impose new liability on Washington contractors whose employees have been exposed to toxic or harmful substances on a jobsite. The case involves employer liability for asbestos exposure 28 years ago, but the outcome of the case could also apply to claims over exposure to substances like secondhand smoke or diesel fumes, because the claimant wants employees to be able to sue their employers if injured by wilful workplace exposure to harmful substances. Because of the potential impact on contractors, the AGC of Washington has intervened in the case to file legal briefing supporting the side of the employer. Earlier this month the Washington Supreme Court held a hearing on the case, and acknowledged some of the concerns raised by the AGC.

Just over 100 years ago the Washington legislature enacted the Industrial Insurance Act. That law ended the ability of employees to sue their employers in tort. Instead, workers got guaranteed, no-fault benefits for any work-related injury, and employers got immunity from tort suits by their employees. The only exception to an employer’s immunity was for cases where the employee’s injury was the “deliberate intention” of the employer. These were intended to be rare exceptions, and in the last century they have been rare indeed. (In one such case, an employer insisted that its workers remain exposed to noxious chemicals, knowing the chemicals would make them sick, which it did: Some of the employees even passed out from the fumes.)

The pending case is different. The claimant was a Boeing employee working in a Boeing plant in the late 1980s. The facility had some asbestos-coated pipe overhead that Boeing was modifying. Although the contractor’s work crew wore protective gear while cutting and handling the pipe, the regular Boeing employees on the plant floor did not have protective gear. The claimant was one of those Boeing employees, and he alleged he was forced to work while asbestos debris “rained down” on him and his work area. But he did not bring any claim until he contracted mesothelioma decades later, at which point he sued Boeing.

Boeing defended on the basis that as the employer it has immunity from suit under the Industrial Insurance Act. The Court of Appeals recently agreed and declared that the suit should be dismissed. But the Washington Supreme Court declared that it would review the case.

The estate of the employee (who passed away while the suit has been pending) contends that because Boeing knew at the time of exposure that asbestos is harmful, Boeing intentionally caused injury to the plaintiff. The employee’s estate argues that this “deliberate intention” to cause injury should be enough to nullify the employer’s immunity from suit. Boeing responds that it didn’t intend to injure anyone, and that even if it knew of employee exposure to asbestos, exposure doesn’t mean injury. As with most hazardous substances in the workplace, the vast majority of people exposed to asbestos don’t ever develop any compensable injury from the exposure. The fact that a workplace exposure created a risk of injury isn’t the same as the employer deliberately intending that one of its employees actually be injured.

Because construction contractors almost always work on a site that doesn’t belong to them, and that may contain hazardous materials that the contractor doesn’t know about or have the ability to control, the AGC believes that the pending case is an important one to the construction industry. The AGC therefore obtained permission from the Washington Supreme Court to file an amicus brief explaining why allowing employees to sue their own employer any time the employer allows exposure to a potentially hazardous material would be a radical and unwise change to current law. John Riper of the AGC’s Legal Affairs Committee wrote the AGC’s amicus brief.