Meads v. Ray C. Roberts Post 969, Inc.

54 Wash. App. 486 (1989) 774 P.2d 49

GENIA MEADS, Appellant,
v.
RAY C. ROBERTS POST 969, INC., ET AL, Respondents.

No. 11335-0-II.

The Court of Appeals of Washington, Division Two.

June 13, 1989.

Peter Moote, for appellant.

Keith A. Bolton and Petersen, Lycette & Snook, for respondents.

WORSWICK, J.

Genia Meads was injured when she fell down a flight of stairs at her place of employment as a bar-tender. She appeals summary judgment dismissing her negligence claim against Ray C. Roberts Post 969, Inc., owner of the building. The Post convinced the trial judge that it was Meads' employer as defined in RCW 51.08.070, and thus was immune from her suit under the Industrial Insurance Act, although she actually worked for a separate corporation, the Ray C. Roberts Service Club, Inc. The Post argued essentially that the Service Club corporation was a subsidiary of and completely controlled by the Post, and that, ipso facto, this made Meads the Post's employee. The trial court agreed; we do not. We reverse.

Here, the Post advances two contentions in support of its position. First, asserting that it has ultimate financial responsibility for payment of industrial insurance premiums for Service Club corporation employees, it argues that this burden under the Act entitles it to an employer's benefits of the Act, including immunity from suit by employees. Second, it contends that Corr v. Willamette Indus., Inc., 105 Wash. 2d 217, 713 P.2d 92 (1986) holds that an employee of a parent corporation's wholly owned subsidiary ipso facto is an employee of the parent, by virtue of the parent's right to control the subsidiary.

Meads contends that employer immunity is conferred only after it has been established that (1) the putative employer has the right to control the employee, and (2) the employee has consented to the employment relationship. Meads argues that summary judgment was improper because questions of fact remain concerning these elements. We agree with Meads.

Glass v. Stahl Specialty Co., 97 Wash. 2d 880, 652 P.2d 948 (1982), is representative of cases offered by the Post in support of its "burden-benefit" argument. However, the sole issue in Stahl was whether an employer could be liable for contribution, pursuant to RCW 4.22.040, at the behest of an equipment manufacturer against whom an action had been brought by an employee of the employer. Stahl does not help the Post. To the contrary, the same argument was rejected in Marsland v. Bullitt Co., 71 Wash. 2d 343, 428 P.2d 586 (1967).

Corr does not support the Post's "parent-subsidiary ipso-facto" argument, nor does any other Washington case. In Corr, an employee sued a corporation, known and acknowledged to be his employer, for injuries allegedly caused by the employer's equipment. The equipment was manufactured by the corporate predecessor of the employer; the predecessor had been merged into the employer-corporation. The Corr court considered and rejected a "dual capacity" argument, and held that the "dual persona" doctrine did not apply on the facts. The court went no further.

[1] Washington law on the issue of employer immunity is firmly settled and has been consistently applied. Notwithstanding a putative employer's claim of the right to control, immunity does not exist unless it can also be shown that the employee consented to the employment relationship. Fisher v. Seattle, 62 Wash. 2d 800, 384 P.2d 852 (1963). Thus, a 2-part test, right to control plus employee consent, applies. Novenson v. Spokane Culvert & Fabricating Co., 91 Wash. 2d 550, 588 P.2d 1174 (1979). Both elements involve questions of fact. Smick v. Burnup & Sims, 35 Wash. App. 276, 666 P.2d 926 (1983). We are satisfied from the record before us that both elements present triable fact issues in this case.

Reversed.

ALEXANDER, C.J., and PETRICH, J., concur.