Most workers' compensation schemes are designed to provide a swift and sure source of benefits to injured workers by placing on employers the risks and burdens of modern industry. In keeping with this policy, Washington's Industrial Insurance Act2 (IIA) requires injured workers to relinquish the right to sue at common law for damages sustained on the job, and it requires employers to accept liability for a measure of damages set out by the statute. However, if a worker's injuries are caused by the negligence of a third person who is not in the worker's same employ, the IIA's third-party provision allows the worker to pursue an independent cause of action against the third person in addition to his workers' compensation claim. This type of third-party liability provision has prompted considerable debate as to whether an injured employee may ever sue his employer or a co-employee as a third-party tortfeasor. Attempts by injured workers to circumvent the exclusive remedy principle in this way have given rise to the dual capacity and dual persona doctrines, under which the employer or co-employees of an injured worker may be found independently liable for the worker's injuries, regardless of whether the worker also recovered workers' compensation benefits. These doctrines are premised on the concept that when an employer or co-employee also serves in a distinct nonemployment capacity toward the employee, or has a legal persona other than that of employer or co-employee, the exclusive remedy principle will not bar the employee's common-law remedies. The application of the dual capacity and dual persona doctrines has an enormous impact on employers, particularly employers who run small businesses or closely-held corporations. For example, many individuals who serve as the sole shareholder, director, and officer of a small, closely-held corporation also, as individuals, own the land on which the corporation is located. Under a recent judicial decision in Washington State, these small businesses, and the individuals who run them, may be subject to a new threat of liability. This Note will first explain the structure of Washington's IIA and the exclusive remedy principle. Next, it will explore the third-party provision of the IIA and the judicially-created doctrines that have made employers and co-employees vulnerable to tort suits by injured workers regardless of the exclusive remedy principle. Finally, this Note will discuss the Washington Supreme Court's recent decision in Evans v. Thompson and argue that the court should not have allowed consideration of the dual persona doctrine on remand because the doctrine, if applied, will circumvent the exclusive remedy principle and put the landowners at unjustifiable risk of being held liable for workplace injuries.
Melissa M. Jackson, Employer Liability Under the Third Party Provision of the Washington Industrial Insurance Act: The Dual Capacity and Dual Persona Doctrines in Evans v. Thompson, 19 SEATTLE U. L. REV. 187 (1995).