                                                                         FILED 

                                                                      APRIL 16,2015 

                                                               In the Office of the Clerk of Court 

                                                             W A State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


VIRGINIA E. BURNETT,                         )
                                             )        No. 32177-1-III
                    Appellant,               )
                                             )
      v.                                     )
                                             )
STATE OF WASHINGTON                          )        PUBLISHED OPINION
DEPARTMENT OF CORRECTIONS,                   )
                                             )
                    Respondent,              )
                                             )
JOHN DOE GUARD,                              )
                                             )
                    Defendant.               )

      FEARING, J. - Pending before us are three motions: (1) the Washington State

Department of Labor & Industries' (DLI's) motion to remove attorney Tom Scribner

from representing it, (2) Virginia Burnett's motion to disqualifY the Washington State

Attorney General's Office from representing DLI and her, and (3) DLI's motion to

dismiss this appeal. We deny DLI's motion to remove counsel Tom Scribner as moot.

We deny Virginia Burnett's motion to disqualifY the Attorney General's Office. Last, we
No. 32177-1-II1 

Burnett v. Dep t ofCorr. 

                J




grant DLI's motion to dismiss the appeal. Therefore, we do not reach the merits of this

appeal.

                                            FACTS

       This appeal began as a challenge to the superior court's ruling that DLI, subrogee

to the rights of Virginia Burnett, cannot recover on a worker compensation third party

claim against the Washington State Department of Corrections (DOC) because Burnett

worked in the same employ as the DOC worker who injured Burnett. Burnett, an

instructor at Walla Walla Community College (WWCC or the College), sustained injuries

in the course of employment with WWCC when she taught a class at the Washington

State Penitentiary operated by DOC. Both WWCC and DOC are arms of state

government. As Burnett walked through a metal door of the penitentiary, an eager guard

closed the door on her.

       DOC operates twelve prison facilities including eight major prisons and four

minimum-security prisons. The Washington State Penitentiary, opened in 1887 before

statehood, is a DOC men's prison located in Walla Walla. With an operating capacity of

2,200, it is the second largest prison in the state.

       Like most states, the state of Washington operates a system of community and

technical colleges to offer an open door to every citizen, regardless of his or her academic

background or experience, at a cost normally within his or her economic means. RCW

28B.50.020. The State Board of Community and Technical Colleges (the Board)

administers the community colleges. RCW 28B.50.020. The state system consists of34

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No. 32177-1-III 

Burnett v. Dep '( ofCorr. 



public, two-year institutions of higher education which specialize in vocational, technical,

worker retraining, and university transfer programs. The state of Washington is divided

into 30 community college districts with District 20 encompassing the counties of Asotin,

Columbia, Garfield and Walla Walla. RCW 28B.50.040.

       WWCC serves District 20. The principal WWCC campus lies east of the city of

Walla Walla. The college also operates a branch campus in Clarkston, 100 miles to the

east, and a teaching facility at the Washington State Penitentiary. The college has an

average annual enrollment of about 9,000 students.

       Research and experience show that providing education and vocational training to

criminal offenders reduces recidivism. As part of its mission to rehabilitate offenders,

DOC strives to provide every inmate with basic academic skills as well as educational

and vocational training designed to meet the assessed needs of the offender. RCW

72.09.460. The legislature authorized correction facilities to implement postsecondary

education programs with accredited community colleges. RCW 72.09.465.

       DOC and the Board collaborate to provide higher education to those incarcerated

in the state prison system, including the receipt of education from WWCC for prisoners

confined to the Washington State Penitentiary. DOC and the Board could have, but did

not, established a separate legal entity to conduct the joint undertaking. RCW

39.34.030(4). Pursuant to the Interlocal Cooperation Act, chapter 39.34 RCW, the two

entities yearly enter an interagency agreement that governs this collaboration. The

relevant agreement imposed on the Board the duty to hire teachers and instructors and on

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No. 32177-1-111 

Burnett v. Dep 't 0/ Corr. 



DOC the duty to pay for instruction services. Section 3.1 of the agreement obligated the

Board to hire 4,330 full time instructors and DOC to pay the Board up to $18,230,000 for

instructional services. Sections 5.5 of the interagency agreement established the

continued independence of DOC and community colleges. The paragraph reads:

              5.5 INDEPENDENT CAPACITY: The employees or agents of
       each party who are engaged in the performance of this Agreement shall
       continue to be employees or agents of that party and shall not be
       considered/or any purpose to be employees or agents o/the other party.

Clerk's Papers (CP) at 68 (emphasis added).

       WWCC hired Virginia Burnett as a basic skills instructor at the WWCC

penitentiary campus. The College and Burnett signed a professional personnel contract.

Virginia Burnett's 2009 W-2 identified her employer as "Walla Walla Community

College." CP at 56.

       On March 9, 2009, Virginia Burnett went to the Washington State Penitentiary to

teach a class. As she walked through a metal door, a prison guard closed the door. The

door crushed Burnett's shoulders and upper torso. Burnett sustained an industrial injury

for which DLI paid worker compensation benefits.

                                     PROCEDURE

       RCW 51.24.030(1), a section of the Industrial Insurance Act, Title 51 RCW,

authorizes actions against third person tortfeasors, such as DOC and its guard, for one

who recovers worker compensation. The statute reads:

               If a third person, not in a worker's same employ, is or may become
       liable to pay damages on account of a worker's injury for which benefits

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No. 32177-1-II1 

Burnett v. Dep 'f ofCorr. 



       and compensation are provided under this title, the injured worker or
       beneficiary may elect to seek damages from the third person.

(Emphasis added.) If the injured worker elects to bring suit against a third party

tortfeasor, the worker must give notice to DLI. RCW 51.24.030(2). DLI may file a

notice of statutory interest in the recovery. RCW 51.24.030(2).

       In the event the injured worker fails to give notice of election to DLI, DLI may

demand, by a certified letter, that the worker elect whether or not to pursue a claim

against the third party tortfeasor. RCW 51.24.070. If the employee fails to elect to

pursue a claim, DLI may take assignment of the tort claim and bring action against the

tortfeasor. RCW 51.24.050(1). Any recovery obtained by DLI is distributed as follows:

              (a) The department ... shall be paid the expenses incurred in making
       the recovery including reasonable costs of legal services;
              (b) The injured worker ... shall be paid twenty-five percent of the
       balance of the recovery made ... PROVIDED, That in the event of a
       compromise and settlement by the parties, the injured worker ... may agree
       to a sum less than twenty-five percent;
              (c) The department ... shall be paid the compensation and benefits
       paid to or on behalf of the injured worker ... by the department ... ; and
              (d) The injured worker ... shall be paid any remaining balance.

RCW 51.24.050(4).

       Virginia Burnett never notified DLI that she intended to pursue a claim against

DOC or its employee who prematurely closed the prison door. On May 19,2009, DLI

sent a certified letter to Burnett. The letter demanded that Burnett elect whether or not to

pursue a claim against DOC and its employee. Burnett signed the mail received receipt.

Burnett did not respond to the letter.


                                             5

No. 32177-1-III 

Burnett v. Dep 't ofCorr. 



       On August 6,2009, DLI wrote Virginia Burnett again and informed her that she

had assigned her third party claim to DLI and DLI would pursue the claim against DOC

and the guard. DLI contracted with Walla Walla attorney Tom Scribner to file suit

against DOC. On March 1,2012, Scribner filed the suit, in Walla Walla Superior Court,

under the name of Virginia Burnett against DOC and "John Doe Guard" for negligence

under RCW 51.24.030(1). CP at 1-2.

       An assistant attorney general appeared in the lawsuit and defended DOC. The

superior court granted DOC's motion for summary judgment. The superior court

reasoned that WWCC and DOC are branches of the same entity, and thus the DOC guard

and Virginia Burnett were employed by the same employer. DLI, under the name of

Virginia Burnett, appealed to this court. The issue on appeal was whether Burnett and

the DOC guard were in the same employ within the meaning ofRCW 51.24.030 such

that the statute barred the suit.

       In December, this court reviewed the appeal without oral argument. After

conference, we sent to counsel, pursuant to RAP 12.1(b), a list of questions to answer.

The questions surrounded whether each branch of state government separately paid

premiums to DLI to cover its respective employees. We directed the parties to answer

the questions by January 7, 2015.

       On January 2, 2015, Tom Scribner, on behalf of Virginia Burnett and DLI, filed a

motion for extension of time to answer the questions. On January 5, DOC, through

Assistant Attorney General Jason Brown, also requested an extension of time to answer

                                            6

No. 32177-1-111 

Burnett v. Dep't ofCorr. 



the questions. On January 5, Assistant Attorney General Anastasia Sandstrom appeared

on behalf ofDLI. Sandstrom also filed, on behalf ofDLI, a motion to dismiss the appeal.

Because of the motion to dismiss, we held in abeyance the motion to extend time to

answer the panel's questions. DLI's motion to dismiss did not comply with our rules.

We directed DLI to comply with the rules by providing legal argument in support of the

motion to dismiss. DLI complied with this direction and also moved to disqualifY Tom

Scribner as counsel for DLI.

      Tom Scribner withdrew from representation of Virginia Burnett and DLI. Walla

Walla attorney Janelle Carman substituted for Scribner as attorney for Burnett. Assistant

Attorney General Anastasia Sandstrom continues to represent DLI. Assistant Attorney

General Jason Brown, on behalf of DOC, filed a joinder in the motion to dismiss the

appeal. Carman, on behalf of Virginia Burnett, filed an objection to dismissal of the

appeal and a motion to disqualifY the Attorney General's Office from representing her

and DLI based on a conflict.

                                LAW AND ANALYSIS

      ISSUE 1: Whether the Washington State Attorney General's Office is disqualified

by reason ofa conflict ofinterest from representing DLI because the office also

represents Virginia Burnett or the opposing party, DOC?

      ANSWER 1: No. The assistant attorney general has not represented Burnett.

Burnett has no standing to assert a conflict ofinterest between DLI and DOC.

      We first address the motion to disqualifY filed by Virginia Burnett. Burnett's

                                            7

No. 32177-1-111 

Burnett v. Dep't ofCarr. 



motion to disqualify the Attorney General's Office has two facets. First, she claims that

the Attorney General's Office cannot represent both DLI and her. Second, she argues

that the Attorney General's Office cannot represent both DLI and DOC.

       Virginia Burnett's motion implies that the Attorney General's Office represents

DLI and her. This first argument fails because the Attorney General's Office has never

claimed or sought to represent Burnett. The notice of appearance of Assistant Attorney

General Anastasia· Sandstrom is only on behalf ofDLI. DLI sued under Virginia

Burnett's name, but DLI has the right to use Burnett's name under RCW 51.24.050(1).

DLI is a real party in interest. Dep't ofLabor & Indus. v. Wendt, 47 Wn. App. 427, 431,

735 P.2d 1334 (1987), overruled on other grounds by State v. WWJ Corp., 138 Wn.2d

595,980 P.2d 1257 (1999). Burnett may also be a party in interest, but she is now

represented separately by Janelle Carman.

       Virginia Burnett also seeks to disqualify the Attorney General's Office from

representing DLI because DLI's interests conflict with DOC's and DOC is already

represented by the Attorney General's Office. The attorney general is a constitutionally

recognized office that acts as the attorney for state officers. CONST. art. III, § 21.

Numerous statutes implement this constitutional directive and charge the attorney general

with representing state agencies in litigation. Under RCW 43.10.030:

              The attorney general shall:
              (1) Appear for and represent the state before the supreme court or
       the court of appeals in all cases in which the state is interested;
              (2) Institute and prosecute all actions and proceedings for, or for the
       use of the state, which may be necessary in the execution of the duties of

                                               8

No. 32177-1-111 

Burnett v. Dep 't ofCarr. 



       any state officer;
               (3) Defend all actions and proceedings against any state officer or
       employee acting in his or her official capacity, in any of the courts of this
       state or the United States.

Under RCW 43.10.040:

              The attorney general shall also represent the state and all officials,
       departments, boards, commissions and agencies of the state in the courts,
       and before all administrative tribunals or bodies of any nature, in all legal
       or quasi legal matters, hearings, or proceedings.

       The Washington state attorney general is the legal adviser to DLI. RCW

51.52.140. The attorney general represents DLI in court litigation concerning worker

compensation claims. Aloha Lumber Corp. v. Dep 't ofLabor & Indus., 77 Wn.2d 763,

774,466 P.2d 151 (1970). RCW 72.09.530 implies that the Attorney General's Office is

the attorney for DOC. See also McKee v. Dep 't ofCarr. , 160 Wn. App. 437, 248 P.3d

115 (2011).

       A private law firm would be precluded from representing competing interests in

the same lawsuit, such as the interests held here by DLI and DOC. RPC 1.7(a)(1); RPC

1.lO(a). Ethical rules and case law treat the State Attorney General's Office differently,

however. To the extent that the attorney general is not a party to an action or personally

interested in a private capacity, the attorney general may represent opposing state

agencies in a dispute. Reiter v. Wallgren, 28 Wn.2d 872, 879-80, 184 P.2d 571 (1947);

State ex rei. Comm'r ofTransp. v. Medicine Bird Black Bear White Eagle, 63 S.W.3d

734, 773 (Tenn. Ct. App. 2001); 7 AM. lUR. 20 Attorney General § 20 (2007). A

different assistant attorney general can and should be assigned to handle inconsistent

                                              9

No. 32177-I-III 

Burnett v. Dep't ofCorr. 



functions. Wash. Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466,480,663 P.2d 457

(1983).

       We could, but do not, rest our decision on the motion to disqualify the Attorney

General's Office on the basis that Washington law permits any conflict. We base denial

of the motion on another ground. We hold Virginia Burnett lacks standing to assert the

disqualification of the Attorney General's Office since any conflict of interest is between

other parties.

       Although no Washington decision has addressed standing needed to seek

disqualification of counsel, the majority, if not universal, rule is that only a party who has

been represented by the conflicted attorney has standing. See In re Yarn Processing

Patent Validity Litig., 530 F.2d 83, 88 (5th Cir. 1976); Info. Sys. Assocs. v. Phuture

World, Inc., 106 So. 3d 982, 984-85 (Fla. Dist. Ct. App. 2013); Great Lakes Constr., Inc.

v. Burman, 186 Cal. App. 4th 1347, 1356,114 Cal. Rptr. 3d 301 (2010); 7 AM. JUR. 2D

Attorneys at Law § 188 (2007); see generally Eric C. Surette, Annotation, Standing of

Person, Other than Former Client, to Seek Disqualification ofAttorney in Civil Action,

72 A.L.R.6TH 563 (2012). The standing rule draws its strength from the logic of the rule

itself, which is designed to protect the interests of those harmed by conflicting

representations rather than serve as a weapon in the arsenal of a party opponent. Mills v.

Hausmann-McNally, SC, 992 F. Supp. 2d 885, 891 (S.D. Ind. 2014). Since the Attorney

General's Office has not represented Virginia Burnett, she lacks standing to forward her

motion of disqualification.

                                             10 

No. 32177-1-111 

Burnett v. Dep 't ofCorr. 



       The dissent wishes that the majority would not address the question of whether the

Attorney General's Office should be disqualified and claims that our opinion on this

question is dicta. We address this issue because Virginia Burnett filed a motion to

disqualifY the Attorney General's Office. We need to resolve the motion to disqualifY in

order to resolve DLI's motion to dismiss. Ifwe disqualified the office, we would need to

determine if the pleadings filed by the office, including the motion to dismiss, should be

stricken.

       ISSUE 2: Must DLI demonstrate payment ofTom Scribner's bill before it may

substitute other counsel?

       ANSWER: No. Virginia Burnett does not hold standing to assert the pecuniary

interest ofan attorney.

       Virginia Burnett additionally argues that this court should not entertain a motion to

dismiss because the Attorney General's Office has not properly appeared for DLI and

thus any motion filed by the Attorney General's Office on behalf of the appellant is

invalid. Burnett claims that, under RCW 2.44.040, DLI must first provide proof that DLI

paid Tom Scribner's attorney fees.

       RCW 2.44.040 reads:

              The attorney in an action ... may be changed at any time before
       judgment or final determination as follows:
              (1) Upon his or her own consent, filed with the clerk or entered upon
       the minutes; or
               (2) Upon the order of the court, or a judge thereof, on the application
       of the client, or for other sufficient cause; but no such change can be made



                                             11 

No. 32177-1-111 

Burnett v. Dep't ofCorr. 



       until the charges of such attorney have been paid by the party asking such
       change to be made.

The structure of the statute creates an ambiguity. The reader is uncertain as to whether

the last clause requiring payment of the attorney extends to both subsection (1) and (2) of

the statute. Stated differently, the statute could be read to require evidence of payment

only when the withdrawal occurs by court order or the statute could be read to demand

proof of payment even if the attorney withdraws by consent. Noted veteran attorney Tom

Scribner voluntarily withdrew when he received differing instructions from his clients.

       We choose not to construe the statute, but rather hold that Virginia Burnett lacks

standing to assert the dictates ofRCW 2.44.040. We applaud Burnett's desire to protect

the pecuniary interests of an attorney, but the attorney should assert any right to payment.

One lacks standing to assert an argument, when one has no proprietary, personal, or

pecuniary rights at stake. Aguirre v. AT&T Wireless Servs., 109 Wn. App. 80, 85, 33

PJd 1110 (2001); In re Estate of Wood, 88 Wn. App. 973, 976, 947 P.2d 782 (1997).

      ISSUE 3: Does DLI hold the prerogative to seek dismissal ofthe appeal without

approval of Virginia Burnett?

      ANSWER 3: Yes.

       Virginia Burnett next argues that she has an interest in the appeal and this lawsuit

since she may have a reasonable expectation of receiving some of the recovery.

Accordingly, she contends that DLI lacks the statutory authority to dismiss the appeal in

contravention to her wishes and to her detriment. She maintains that allowing DLI to


                                             12 

No. 32177-1-III
Burnett v. Dep 't o/Corr.


assume an action for the benefit of the individual and control both ends of the

controversy creates an inherent conflict to the detriment of the worker and is therefore

violative of public policy. We reject Virginia Burnett's arguments because Washington

statutes demand a contrary outcome. Those same statutes afforded Burnett the

opportunity to control this litigation and this appeal, but Burnett neglected to assert those

rights.

          We recognize that Virginia Burnett is a real party in interest to this dispute. She

could recover some of any recovery against DOC. Nevertheless, DLI is also a real party

in interest and DLI gained the right to control the litigation, including the right to dismiss

the suit, when Burnett assigned her rights to the third party claim to DLI.

          Because Virginia Burnett assigned her third party claim to DLI, DLI is the real

party in interest as taught in Department o/Labor and Industries v. Wendt, 47 Wn. App.

427, 735 P.2d 1334 (1987), overruled on other grounds by State v. WWJ Corp., 138

Wn.2d 595, 980 P.2d 1257 (1999). Victor Wendt assaulted Roger Heinrich in the course

of the latter's employment. Heinrich, a Seventh-day Adventist minister, refused to

pursue any claim against Wendt for religious reasons and thereby assigned his cause of

action to DLI who had paid Heinrich worker compensation benefits. DLI filed the

lawsuit under the name of Heinrich, but amended the caption, at the request of Heinrich,

to name the department as the plaintiff. On appeal, Wendt argued that DLI could not

pursue the action in its own name. This court disagreed. We held that, pursuant to RCW

51.24.050, DLI could proceed, as the assignee, under its own name. DLI was the real

                                                13 

     No. 32177-1-111 

I    Burnett v. Dep 't ofCorr. 



     party in interest by reason of the assignment. The case does not necessarily preclude the

I    employee from also being a real party in interest, however.
!!          According to one line of cases, the real party in interest is the person who

     possesses the right sought to be enforced. Peyton Bldg., LLC v. Niko's Gourmet, Inc.,

I
I
     180 Wn. App. 674, 680, 323 P.3d 629 (2014); Riverview Cmty. Grp. v. Spencer &
i    Livingston, 173 Wn. App. 568, 576,295 P.3d 258 (2013), rev 'd on other grounds, 181
!
     Wn.2d 888, 337 P.3d 1076 (2014); Philip A. Trautman, Joinder ofClaims and Parties in

     Washington, 14 GONZ. L. REv. 103, 109 (1978). Under another line of decisions, the real

     party in interest is the person who, if successful, will be entitled to the fruits of the action.

     Nw. Indep. Forest Mfrs. v. Dep't ofLabor & Indus., 78 Wn. App. 707, 716, 899 P .2d 6

     (1995). General doctrine recognizes that there may be more than one real party in

     interest. Nw. Indep. Forest Mfrs., 78 Wn. App. at 716; 3A KARLB. TEGLAND,

     WASHINGTON PRACTICE: RULES PRACTICE CR 17, at 420 (6th ed. 2013). Virginia

     Burnett may be a real party in interest with DLI, but drawing this conclusion does not

     resolve whether DLI must obtain Burnett's approval to dismiss the appeal.

            RCW 51.24.050(1) and RCW 51.24.070 control the question of whether DLI

     possesses the right to dismiss the appeal without Virginia Burnett's approval. The first

     statute reads:

                   (1) An election not to proceed against the third person operates as an
            assignment ofthe cause ofaction to the department or self-insurer, which
            may prosecute or compromise the action in its discretion in the name ofthe
            injured worker, beneficiary or legal representative.


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No. 32177-1-111 

Burnett v. Dep't ofCorr. 



(Emphasis added.) RCW 51.24.070 reads, in relevant part: 


              (1) The department ... may require the injured worker or
       beneficiary to exercise the right of election under this chapter by serving a
       written demand by registered mail, certified mail, or personal service on the
       worker or beneficiary.
              (2) Unless an election is made within sixty days of the receipt of the
       demand, and unless an action is instituted or settled within the time granted
       by the department ..., the injured worker or beneficiary is deemed to have
       assigned the action to the department ....

               (4) If the department ... has taken an assignment of the third party
       cause of action under subsection (2) of this section, the injured worker or
       beneficiary may, at the discretion of the department or self-insurer, exercise
       a right of reelection and assume the cause of action subject to
       reimbursement of litigation expenses incurred by the department or self­
       insurer.

Under RCW 51.24.070, Virginia Burnett could have protected her rights to recover by

notifying the department of an election to pursue the suit. Even today, she could ask the

department to permit her to exercise a right of reelection. She has not requested

reelection.

       In Duskin v. Carlson, 136 Wn.2d 550,965 P.2d 611 (1998), our Supreme Court

precluded the injured worker from pursuing a third party claim against the tortfeasor,

when the worker failed to respond to a letter from DLI demanding that he give notice if

he elected to pursue the claim. Because of the lack of a response, DLI settled the claim

with the tortfeasor's liability insurance carrier. The Supreme Court has also held that

DLI owns sole discretion in determining whether to compromise its right to

reimbursement of worker compensation benefits. Hadley v. Dep 't ofLabor & Indus., 116

Wn.2d 897, 903, 814 P.2d 666 (1991).

                                            15
No. 32177-I-III
Burnett v. Dep 't ofCorr.


       RCW 51.24.050(1) grants DLI the right to "compromise" the third party claim and

omits any reference to any veto power in the injured worker. No Washington decision

addresses the meaning of "compromise" in the context of this statute. Virginia Burnett

argues that the term does not extend to dismissing the suit without recovery. She

contends that, as a matter of public policy, DLI has a duty to ensure that Burnett's

interests are pursued diligently. Accordingly, DLI can settle but not dismiss the case.

       Virginia Burnett's contention disregards logic. Burnett advocates holding DLI to

a duty of good faith when compromising a claim assigned to it. We would be reading

additional language into the statute if we reached this conclusion. Without a duty of good

faith, presumably DLI could settle for $1,000 or even $1. These hypotheticals suggest

the right to compromise includes the right to dismiss.

       Decisions hold, in other contexts, that an assignee of a chose in action assumes all

rights of the assignor, which rights should include the right to dismiss the chose without

consent of the assignor. An assignee of a chose in action takes those rights coextensive

with those of the assignor at the time of the assignment. Home Indem. Co. v. McClellan

Motors, Inc., 77 Wn.2d 1,3-4,459 P.2d 389 (1969); Steinmetz v. Hall-Conway-Jackson,

Inc., 49 Wn. App. 223,227, 741 P.2d 1054 (1987). Burnett argues that these Washington

decisions lie in another context, but Burnett cites no decisions to support her contrary

position.

       Other jurisdictions recognize that an assignment transfers all rights to the property

assigned. As a general rule, an assignee stands in the shoes of the assignor and succeeds

                                             16 

No. 32177-1-III
Burnett v. Dep 't ofCorr.


to all the rights and remedies of the latter. City ofCincinnati ex rei. Ritter v. Cincinnati

Reds, LLC, 150 Ohio App. 3d 728, 2002-0hio-7078, 782 N.E.2d 1225, 1234. Once an

assignor makes an assignment, he or she no longer retains control of the assigned claim.

Foley v. Grigg, 144 Idaho 530, 164 P.3d 810, 813 (2007).

       The dissent writes that Virginia Burnett had no option but to assign her rights to

DLI in order to gain worker compensation benefits. The law reads to the contrary.

Under RCW 51.24.030(2), Burnett could have elected to bring suit against DOC and

retain control of the lawsuit. She failed to exercise this option.

       The dissent would rule in favor of Virginia Burnett by holding that the DOC guard

was not in the "same employ" of Burnett for purposes of the worker compensation

statute, RCW 51.24.030(1). No Washington decision addresses this question. The

overwhelming rule, if not universal rule, from other jurisdictions is that employees of

separate state agencies are within the same employment, and an injured worker employed

by one agency may not bring a third party complaint for negligence against an employee

of another state agency. Singhas v. N.M State Highway Dep 't, 1997-NMSC-054, 124

N.M. 42, 946 P.2d 645; Rodriguez v. Bd. ofDirs. ofAuraria Higher Educ. Ctr., 917 P.2d

358 (Colo. App. 1996); Colombo v. State, 3 Cal. App. 4th 594, 5 Cal. Rptr. 2d 567

(1991); Linden v. Solomacha, 232 N.J. Super. 29, 556 A.2d 346 (1989); Egeland v. State,

408 N.W.2d 848 (Minn. 1987); State v. Coffman, 446 N.E.2d 611 (Ind. ct. App. 1983);

Wright v. Moore, 380 So. 2d 172 (La. Ct. App. 1979); Osborne v. Commonwealth, 353

S.W.2d 373 (Ky. 1962).

                                              17 

No. 32177-1-III
Burnett v. Dep't o/Corr.


       A similar rule controls when an employee of one branch of local government sues

an employee of another branch of local government for a work injury. Jones v. Kaiser

Indus. Corp., 43 Cal. 3d 552, 737 P.2d 771, 237 Cal. Rptr. 568 (1987); Pulliam v.

Richmond County Bd. o/Comm'rs, 184 Ga. App. 403, 361 S.E.2d 544 (1987); Holt v.

City o/Boston, 24 Mass. App. Ct. 175,507 N.E.2d 766 (1987); Holody v. City o/Detroit,

117 Mich. App. 76, 323 N.W.2d 599 (1982); Berger v. UG.l Corp., 285 Pa. Super. 374,

427 A.2d 1161 (1981); Walker v. City o/San Francisco, 97 Cal. App. 2d 901, 219 P.2d

487 (1950); De Giuseppe v. City o/New York, 188 Misc. 897,66 N.Y.S.2d 866 (Sup. Ct.

1946), affd, 273 A.D. 1010,79 N.Y.S.2d 163 (1948); Bross v. City o/Detroit, 262 Mich.

447,247 N.W. 714 (1933). In Thompson v. Lewis County, 92 Wn.2d 204, 595 P.2d 541

(1979), the Washington high court held that an employee of the county road department

who was injured while driving a county truck in the course of his employment on a

county road could not maintain an action against the county. The employee was limited

to his rights under the worker compensation act, despite his claim that the county was

serving in a dual capacity as both his employer and as a governmental agency with the

duty to properly construct and maintain county roads for the use and benefit of the public.

       The dissent cryptically writes that "due process includes the right to appeal."

Dissent at 2. Although we have no quarrel with this proposition, the dissent cites no

authority for the proposition and fails to analyze whether anyone's due process rights are

violated. Virginia Burnett was given notice and an opportunity to control this litigation,




                                             18 

No. 32177-1-III 

Burnett v. Dep 't ofCorr. 



including control over any appeal, but she forewent that right. She does not argue that

her assignment to DLI denied her due process.

       The dissent laments that the majority engages in fact-finding, and it desires to

remand the case on undeveloped issues, such as intent, waiver, notice, and disclosure.

Dissent at 4. Nevertheless, the motion to dismiss does not raise any issue of waiver. No

party asserts an issue of waiver. The only issue before the court on the motion to dismiss

is assignment. The DLI, by unrefuted declaration, establishes that it sent notice to

Virginia Burnett that she needed to assert her rights or else she assigned her third party

claim to DLI. Burnett failed to assert her rights. Burnett avers no facts to the contrary.

She does not contend she lacked notice or there was a failure to disclose. Fact-finding

implies a need to resolve disputes of facts. Burnett has raised no issue of fact requiring

an evidentiary hearing. If Burnett raised an issue of fact, we would not hesitate to

remand to the trial court.

       ISSUE 4: Should this court dismiss the appeal?

       ANSWER 4: Yes.

       DLI's motion to dismiss was filed after our judicial conference. RAP 18.2 grants

us discretion whether to grant the motion under these circumstances. Stated differently,

even if we agree that DLI holds the prerogative to dismiss the appeal, we could deny the

motion and address the merits of the appeal.

       We exercise our discretion in favor of granting the motion for several reasons.

First, even if we were to issue an opinion and reverse the trial court, DLI could

                                             19
No. 32177-1-111 

Burnett v. Dep 't ofCorr. 



voluntarily dismiss the lawsuit on remand to the superior court. CR 41(a)(l)(B). Thus,

any decision on the merits would likely lack any practical import. Although we can issue

an opinion in a moot case, we generally avoid issuing a decision that lacks an impact on

the parties.

       RAP 18.2 allows only a "party who has filed a notice of appeal" to file a motion to

dismiss. One might argue that Virginia Burnett was the only party who filed the appeal,

since DLI was not mentioned as the appellant on the notice of appeal. Burnett does not

raise this argument. We would reject such an argument since RCW 51.24.050(1) and

case law consider DLI to be the real party in interest.

       The dissent wishes this court to ignore a motion to dismiss brought by the party

who controls the appeal even though the motion is unopposed by the responding party, in

order to rule in favor of a party who assigned her rights to the control of the litigation on

a question on which other jurisdictions have ruled against that party. Then the dissent

wishes this court, after ruling in favor of a party, to remand this case to the trial court to

resolve facts that are undisputed and to address four irrelevant issues not raised by the

parties.

       The dissent may be troubled because ofDLI's wasting of attorneys' and courts'

time and resources by pursuing this case and then abandoning the case shortly before the

issuance of this court's opinion. We concur in the dissent's umbrage.




                                              20 

    No. 32177-I-III 

    Burnett v. Dep 't ofCorr. 



                                       CONCLUSION

           We deny Virginia Burnett's motion to disqualifY the State of Washington Attorney

    General's Office from representing DLI in this appeal. We grant DLI's motion to

    dismiss the appeal.




    I CONCUR: 




I          Kors~




                                              21 

                                         No. 32177-1-111


       BROWN, AC.J. (dissenting) -    Today, we fail to answer Virginia Burnett's sole

assignment of error: Whether the trial court erred in summarily dismissing her

negligence claim against the Department of Corrections (DOC) under the "same

employ" provision of RCW 51.24.030(1). Ms. Burnett contends, and I agree, the prison

guard causing her injuries and her were not in the "same employ" and therefore, the trial

court erred. I would reach the merits and reverse, not dismiss. After all, Ms. Burnett

had little or no choice in assigning her claim against DOC to the Department of Labor

and Industries (DLI) in exchange for workers compensation benefits. Even so, she

stood to statutorily share in any excess recovery over the benefits paid to her under

RCW 51.24.050(4). DLI hired Tom Scribner to sue DOC in Ms. Burnett's name, giving

her reason to believe her interests were being pursued at the same time as DLI's

interests. Ms. Burnett's appeal is not moot. Dismissing her appeal now, without

addressing the merits, unnecessarily and unfairly harms her and all workers similarly

situated who seek a recovery in excess of Oll's subrogation interest

       Complicating this appeal is our process. Instead of deciding this appeal in

December 2014 without argument, inquiries were later sent to appellate counsel calling

for supplemental briefing. Our intrusion, at least in hind-sight, likely exposed possible
No. 32177-1-111
Burnett v. DOL- Dissent


tactical and strategic problems about DLI's wisdom of pitting one state department

against another and then appealing to reinstate a claim for which the State, the

sovereign of both executive departments, could become liable on an excess judgment.

The original briefing was silent on these topics. Unsurprisingly, motions began to fly,

including those the majority describes. Mr. Scribner withdrew; Ms. Burnett's private

attorney appeared, and finally, an attorney general appeared for DLI and asked us to

dismiss this appeal. Of course, DOC joined that motion. But due process includes the

right to appeal.

       Ms. Burnett fairly argues, in essence, the State is now the wolf guarding the

henhouse because it too has an interest in the outcome. Sovereign immunity does not

exist. Thus, she essentially asks, if DLI wants to abandon her and its acknowledged

subrogation interest in this summary judgment appeal, why not let her pursue her claim

on her own with her own counsel? I tend to agree with her. I reason DLI by seeking

dismissal under these circumstances has acted against workers' compensation

principles and unfairly impaired Ms. Burnett's statutory right to share an excess

recovery for her injuries. DLI improperly uses the assignment to shield the State,

striking against her interests instead of advancing them. Misled by DLI, the majority

dismisses this appeal and incorrectly reasons the assigned error is thus moot.

disagree with the majority approach for three reasons.




                                            2

No. 32177-1~11I
Burnett v. DOL- Dissent


       First, I would hold: (1) Walla Walla Community College employed Ms. Burnett as

a "worker" under the Industrial Insurance Act, Novenson v. Spokane Culvert &

Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979); (2) The "dual capacity

doctrine" does not operate to preclude DLI's suit, see 16 DAVID K. DEWOLF & KELLERW.

ALLEN, WASHINGTON PRACTICE SERIES: TORT LAw AND PRACTICE, § 12: 11, at 489 (4th ed.

2013); and (3) under RCW 51.24.030(1), Ms. Burnett was not in the "same employ" as

the DOC guard.

      While no Washington case addresses whether employees of a state agency are

deemed state employees for workers' compensation purposes, three cases seem most

important to the majority, Singhas v. N.M. State Highway Dep't, 1997-NMSC-054, 124

N.M. 42, 946 P.2d 645 (1997); Colombo v. State, 3 Cal. App. 4th 594, 5 Cal. Rptr. 2d

567 (1991); and Rodriguez v. Bd. of Dirs. of Auraria Higher Educ. Ctr., 917 P.2d 358

(Colo. App. 1996). These cases offer little guidance. The facts and statutory schemes

are distinct from our appeal. In Singhas, the court gave effect to New Mexico legislative

intent, but Washington has no statute or definition on point. 946 P.2d at 646. In

Colombo, both the employer and the defendant were branches of one larger state

agency. 3 Cal. App. 4th at 595-96. And, unlike in Rodriquez, no evidence here shows

one industrial insurance policy covers all state employees, or any judgment would be

paid out of the same account as premiums for that policy. 917 P.2d at 358-59. Here,




                                           3

No. 32177-1-111
Burnett v. DOL- Dissent


we should interpret RCW 51.24.030( 1) solely within the holistic statutory context of Title

51 RCW.

       Even if dismissal is an option, I would reach the merits and hold our issue is not

moot because it is a matter of public interest, an authoritive decision is desirable to

guide public officers, and the issue is likely to reoccur. Sorenson v. Bellingham, 80

Wn.2d 547, 558,496 P.2d 512 (1972). Dismissing eviscerates Ms. Burnett's right to

appeal, and harms her and those who may follow her. The State's pecuniary interests

should not be elevated over the holistic design of our workers' compensation scheme.

       Second, considering all motions, no opinion should be issued dismissing this

appeal merely because we have discretion to write an opinion, especially if doing so

causes unnecessary harm. Exercising discretion on unreasonable or untenable
                                                                                              I
grounds and applying inapplicable law to presumed facts outside our record is an abuse

of discretion. Teter v. Deck, 174 Wn.2d 207, 222, 274 P.3d 336 (2012). Better would

have been to stay this appeal by Chiefs order and remand to the trial court with leave

and direction to make any required fact-finding and rulings on the motions and get us a

properly developed record with resolved facts on matters including intent, waiver,

notice, and disclosure. We are not a fact-finding court; it is incorrect to presume no

material facts remain on undeveloped collateral issues. Best is for us to decide the

merits of the presented appeal and allow litigation of new issues at the trial court.




                                             4

No. 32177-1-111
Burnett v. DOL- Dissent


       Third, I do not agree with opining on self-generated, collateral issues concerning

the disqualification of the attorney general, alleged conflicts of interest, an attorney's

pecuniary interests, Ms. Burnett's attorney-client relationships, and her standing to

defend herself on these collateral matters. And, extensively opining on the merits while

specifically not reaching or deciding the merits is at least dicta, and at worst advisory.

See Kitsap County Prosecuting Attorney's Guild v. Kitsap County, 156 Wn. App. 110,

122,231 P.3d 219 (2010) (noting appellate courts do not give advisory opinions).

       In conclusion, our workers' compensation laws should be interpreted to benefit

the workers who must forego private causes of action against their employers in

exchange for workers compensation. These laws were not designed to shield third

parties, like DOC, who are not the injured party's employer. RCW 51.24.030(1).

Because I would reach the merits and reverse without addressing collateral matters and

allow litigation of new issues at the trial court, I respectfully dissent.


                                                           ~)Aa
                                                           Brown, A.C.J.




                                                5

