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Wilson v. Kiewit Pacific Inc.12/21/1992
The Department of Labor and Industries appeals a judgment eliminating its right to reimbursement of funds paid to Angie Wilson on behalf of her deceased spouse Richard Wilson.
Facts
In October of 1986, the Department received a claim for benefits filed by Wilson. Wilson's husband had been killed on October 4, 1986, while working on the Cedar Falls Dam project. Wilson's husband was employed by Urban Construction Company (a subcontractor on the project) as an ironworker. The Department accepted the claim and began paying Wilson benefits from the industrial insurance funds.
In April of 1987, the Department sent Wilson a third party election form. On the form Wilson checked a box electing
to seek damages from a third party (Kiewit Pacific -- the general contractor on the project) for negligent supervision, code violations, and failure to provide a safe workplace. The signed form acknowledged that Wilson understood the Department had a statutory lien against any recovery and that she was required to keep the Department informed of the progress and result of the action.
On May 14, 1987, Wilson informed the Department (by returning a form originally sent to her by the Department) that (1) she did not believe her husband's employer or coemployees were "responsible" for his injury; and (2) she would not contend that a portion of the fault was attributable to the employer or coemployees.
In July of 1989, the Department received a copy of Wilson's complaint initiating suit against Kiewit Pacific, filed in December of 1986, together with a letter stating "this case goes to trial on October 16, 1989 and I am aware of the Department's lien." The complaint alleged that Wilson's death was caused solely by the negligence of Kiewit Pacific.
On September 28, 1989, Wilson settled the third party action with Kiewit Pacific. On October 13, 1989, Wilson moved to determine the reasonableness of the settlement agreement and to eliminate the Department's right to reimbursement of funds. On December 12, 1989, the court approved the reasonableness of the settlement but ruled that it would not eliminate the reimbursement right since the Department had not been a party to the original settlement.
On June 19, 1990, Wilson moved for summary judgment based on employer/coemployee fault. Specifically she asked for a judgment finding (1) her husband's employer (Urban Construction) and coemployee (Craig Christianson) partially at fault for her husband's death, and (2) that the Department, under RCW 51.24.060(1)(f), was not entitled to reimbursement of funds. The Department cross-moved, arguing that the trial court had jurisdiction neither to determine fault (since the notice requirements of RCW 51.24 were not
satisfied) nor to eliminate or reduce the Department's reimbursement right. On October 31, 1990, the trial court granted Wilson's motion for summary judgment and found Christianson partially negligent along with Urban Construction. The court also held that Christianson's and/or Urban Construction's fault eliminated the Department's right to reimbursement.
After the trial court granted Wilson's summary judgment, the Washington Supreme Court handed down its decision in Clark v. Pacificorp, 118 Wash. 2d 167, 822 P.2d 162 (1991). Contrary to the trial court's decision here, the court in Clark stated that under RCW 4.22.070 the trier of fact is required to determine the percentage of fault attributable to each damage-causing entity. The court then stated that to the extent a third party's
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