A federal district court in Seattle, Washington has granted summary judgment for a defendant premises owner in a case brought by a former employee who had worked at the site both for an independent contractor and as a direct employee of the defendant brewery. McMann v. Air & Liquid Systems Corp., 2014 U.S. Dist. LEXIS 166984 (W.D. Wash.). Rejecting the plaintiffs’ “dual persona” argument, the court held that the employer was immune under Washington’s workers compensation statute because the plaintiff suffered an indivisible injury arising from potential exposures to asbestos at separate times as a direct employee and as a contractor’s employee.
Plaintiff Alan McMann worked at the defendant’s brewery on two separate occasions: in 1971 to 1972 as a carpenter for the general contractor on a construction project, and then in 1975 as a direct employee of the brewery. The plaintiff claimed that he was exposed to asbestos from insulators installing pipe insulation in 1971 to 1972. While plaintiff attempted to disclaim exposure to asbestos when working as a brewery employee, he admitted during his deposition that he saw workers removing the same type of pipe insulation in 1975.
On summary judgment, the brewery argued that if Mr. McMann was indeed exposed to asbestos during his direct employment for the brewery, workers’ compensation exclusivity barred all claims because he suffered an “indivisible injury” resulting from both his exposure while working directly for the brewery and his exposure while working as an independent contractor. Plaintiffs argued that (workers compensation immunity did not apply to the brewery because of its “dual persona” as a landowner separate from its status as his employer.
McMann first held that asbestos exposure was an indivisible injury under Bath Iron Works Corp. v. Director, OWCP, 506 U.S. 153 (1993). The Washington Court of Appeals had previously applied workers compensation pre-emption for an indivisible asbestos-related injury under the federal Longshore and Harbor Workers’ Compensation Act (LHWCA) in Campbell v. Lockheed Shipbuilding Corp., 115 Wn. App. 8, 14-15 (2002). In Campbell, the plaintiff was exposed to asbestos when he had worked at Lockheed Shipyards at different times in the 1970s as both an employee of a subcontractor and as a direct employee of Lockheed. The plaintiff argued that Lockheed was not entitled to workers compensation immunity because he was suing on account of the exposure he received as a subcontractor and thus Lockheed should fall within the statutory exception allowing claims against third parties. The court rejected this argument because courts must treat asbestos-related disease as an “indivisible injury” that could not be allocated between his exposure as a subcontractor and his exposure as a direct employee. Accordingly, the Campbell court applied workers compensation immunity and upheld summary judgment for Lockheed.
In McMann, the district court saw no reason to deviate from the reasoning in Campbell, and concluded that workers compensation immunity would similarly apply under Washington law when the plaintiff had sustained an indivisible injury when working both as employee and either a business invitee or a worker for an independent contractor. Further citing the previous rejection of the “dual persona” argument in Kimball v. Millet, 52 Wn. App. 512, 513-14 (1998), the court then declined “to adopt such an unusual proposition that, when an indivisible injury is alleged, the employer is both immune under the [the workers compensation statute] and subject to third-party liability under the [same statute].” Because the workers compensation immunity applied to an indivisible injury such as the plaintiff’s asbestos-related disease, the court granted summary judgment and dismissed the action against the defendant brewery with prejudice.
While logical, the district court’s willingness to both extend to the IIA the Washington Court of Appeal’s reasoning in Campbell and reject the “dual persona” argument raised by plaintiffs is noteworthy. Although the scenario wherein a worker is on the same worksite as both the employee of a visiting contractor and of the premises owner itself is not widespread, neither is it infrequent. McMann should lead to dismissal of all claims against the premises owner in such circumstances, and should be of persuasive value in other jurisdictions with similar exclusive remedy provisions in workers’ compensation law.