                                                                      This opinion was filed for record
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                   CiHJiiF JUSTICE
                                                                          SUSAN L. CARLSON
                                                                        SUPREME COURT CLERK

                  IN THE SUPREME COURT OF THE STATE OF WASHINGTON



             FRANCISCO ENTILA and ERLINDA               )
             ENTILA, husband and wife, and the marital )          No. 92581-0
             community composed thereof,                )
                                                        )
                               Respondents,             )
                                                        )
                  v.                                    )         EnBanc
                                                        )
             GERALD COOK and JANE DOE COOK, )
             husband and wife and the marital community )
             composed thereof,                          )
                                                        )
                               Petitioners.             )
             _______________________)                             Filed          JAN 1 2 2017


                        JOHNSON, J.- This case involves the scope of the immunity provisions of

             the Industrial Insurance Act (IIA), Title 51 RCW, as applied to a third party tort

             action against another employee when the accident occurred after working hours,

             but where the injured plaintiff qualified for benefits under the act. The trial court

             dismissed the suit on summary judgment, holding the act applied to bar suit. The

             Court of Appeals reversed, holding that immunity did not apply because the

             alleged coemployee tortfeasor was not acting in the scope and course of

,,.,,_,      employment. Entila v. Cook, 190 Wn. App. 477, 486, 360 P.3d 870 (2015), review

             granted, 185 Wn.2d 1017, 369 P.3d 500 (2016). The court also reversed the trial
Entila v. Cook, No. 92581-0


court's consideration of an injured plaintiffs receipt of IIA benefits in determining

immunity. We affirm the Court of Appeals.

                         FACTS AND PROCEDURAL HISTORY


      Gerald Cook and Francisco Entila were both employees of the Boeing

Company. On February 18, 2010, at approximately 6:30a.m., Cook finished work

and walked to his vehicle in an employee parking lot. He was driving his personal

vehicle out of the lot and onto a Boeing access road. The access road is located on

Boeing's property, and it is maintained by Boeing. As Entila walked across the

access road, Cook struck and injured him. Entila received workers' compensation

benefits for his injuries and filed suit against Cook for negligence.

      Entila sought a pretrial ruling to establish that the IIA did not bar his suit

against Cook. The trial court denied his motion. Cook then moved for summary

judgment, arguing that he was immune from suit under the IIA because there was

no genuine issue of material fact that he was acting in the course of employment

and that Boeing's employer immunity shielded him from liability. The trial court

granted his motion and dismissed the lawsuit. Entila sought direct review in this

court, which we transferred to the Court of Appeals. The Court of Appeals

reversed the trial court and held that Cook was not immune under the IIA because




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Entila v. Cook, No. 92581-0


he did not establish that he was acting in both the scope and course of employment.

Entila, 190 Wn. App. at 486.

                                     ANALYSIS

      This case requires a statutory analysis to determine the scope of coemployee

tort immunity. A trial court's summary judgment ruling is reviewed de novo.

Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). In this case, no

genuine issue of material fact exists and the trial court's ruling was based on the

interpretation of a statutory provision, which we also review de novo. State v.

Azpitarte, 140 Wn.2d 138, 140-41,995 P.2d 31 (2000).

      Cook asserts that RCW 51.08.013 determines coemployee immunity-if he

or she was "acting in the course of employment," immunity exists. RCW

51.08.013(1) states:

      'Acting in the course of employment' means the worker acting at his
      or her employer's direction or in the furtherance of his or her
      employer's business which shall include time spent going to and from
      work on the jobsite, as defined in RCW 51.32.015 and 51.36.040,
      insofar as such time is immediate to the actual time that the worker is
      engaged in the work process in areas controlled by his or her
      employer, except parking area. It is not necessary that at the time an
      injury is sustained by a worker he or she is doing the work on which
      his or her compensation is based or that the event is within the time
      limits on which industrial insurance or medical aid premiums or
      assessments are paid.




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Entila v. Cook, No. 92581-0


Cook reasons that since he was going to and from work on the jobsite, immunity

bars the suit. Entila contends, however, that for immunity to exist and bar the suit,

Cook must demonstrate that he was performing work for Boeing at the time of

injury. Entila relies on RCW 51.24.030(1 ), which states:

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

      The IIA provides workers' compensation benefits to "[e]ach worker injured

in the course of his or her employment" while immunizing the employer from

responsibility. RCW 51.32.010; see Flanigan v. Dep't ofLabor & Indus., 123

Wn.2d 418, 422, 869 P.2d 14 (1994). RCW 51.08.013 then establishes employer

immunity and defines "acting in the course of employment." Under this definition,

a worker is eligible for workers' compensation benefits not only when they are "on

the clock," it also encompasses the time going to and from work on the jobsite

controlled by an employer immediately before and after the actual working period.

RCW 51.08.013. The term "jobsite" is defined as "premises as are occupied, used

or contracted for by the employer for the business or work process in which the

employer is then engaged." RCW 51.32.015. These statutory provisions




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Entila v. Cook, No. 92581-0


demonstrate that benefit eligibility and employer immunity are analytically tied-if

an injured worker qualifies for benefits, the employer cannot be sued.

      Although RCW 51.08.013 establishes benefit eligibility and employer

immunity, it does not control third party immunity, which is the issue this case

presents. Instead, third party immunity is guided by a different statutory

provision-RCW 51.24.030. When an injured person brings a personal injury

action, the third party tortfeasor is not eligible for statutory immunity unless they

are in the "same employ" as their coworker. RCW 51.24.030(1 ). Thus, the issue in

this case centers on whether Cook and Entila were in the "same employ" at the

time of injury.

      Not only do the statutory sections use different language, they serve

different purposes. When analyzing the statutory eligibility for benefits, our cases

recognize the requirement to analyze the provisions in favor of the injured worker.

RCW 51.08.013 itself expands benefit eligibility beyond those injuries that occur

while working, also encompassing injuries occurring while going to and from

work. RCW 51.24.030, on the other hand, deals with third party liability and has

different objectives. In Evans v. Thompson, 124 Wn.2d 435, 437, 879 P.2d 938

(1994), we recognized that the statutory scheme under RCW 51.24.030 favors third

party actions and that contrary to the principle or interpretation benefiting the



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Entila v. Cook, No. 92581-0


injured worker, immunity from liability requires a narrow interpretation, with the

burden on the party claiming immunity to establish its existence.

      In interpreting RCW 51.24.030(1), Washington courts have previously

confronted the question of whether coemployees are in the "same employ." In

Olson v. Stern, 65 Wn.2d 871, 877,400 P.2d 305 (1965), this court decided that

coemployees are not in the same employ and are thus not entitled to immunity

unless it is shown they were acting "'in the course of employment."' There, the

tortfeasor and injured party were coemployees when their vehicles collided after

the working shift in a parking area. Stern, the tortfeasor, was on his way home. We

held that Stern was not immune from suit for two reasons: (1) the parking lot was

not covered by RCW 51.08.013 and (2) "he was neither 'acting at his employer's

direction' nor 'in the furtherance of his employer's business"'-Stern had finished

his day's work, he completed his tasks for the day, and he was driving home.

Olson, 65 Wn.2d at 877. Although we discussed the statutory definition of"in the

course of employment," the analysis focused on whether Stern was still performing

duties for his employer. This focus suggests the result was not dependent on

whether the injured worker qualified for benefits, but also hinged on whether the

tortfeasor was doing work at the time of the accident.




                                          6
Entila v. Cook, No. 92581-0


      In Taylor v. Cady, 18 Wn. App. 204, 206, 566 P.2d 987 (1977), the Court of

Appeals also analyzed when coemployees are in the "same employ." The court

explained that a coemployee is entitled to immunity where they are performing

work for their employer at the time of injury. There, an employee, Cady, left his

office, intending to make a bank deposit for his employer while he was on his way

home. Cady started his car in the employee parking lot, but he was called back to

the office. Cady left his car running, and it rolled backward, injuring another

employee. The court determined that the tortfeasor was still acting in the course of

employment because he was carrying out the duties of his employer-leaving the

office to make a banlc deposit. In reaching this conclusion, the court interpreted

Olson and believed the Olson court rejected immunity because Stern was not doing

work for his employer, not because the collision occurred in a parking lot. Using

this interpretation, the court in Taylor focused on whether Cady was performing

duties for his employer and found, under those circumstances, that acting under the

employer's direction barred the third party claim.

      Another Court of Appeals case had a different interpretation of Olson. The

court inHeim v. Longview Fibre Co., 41 Wn. App. 745,748,707 P.2d 689 (1985),

reasons that Stern was immune solely because he was in a parking area, rejecting

Taylor's interpretation:



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Entila v. Cook, No. 92581-0


             We believe that the trial court and respondent have incorrectly
      construed the ruling in Olson. There is some support for their reading
      of Olson in Taylor v. Cady, 18 Wn. App. 204, 566 P.2d 987 (1977),
      which interpreted Olson as restricting the definition of"course of
      employment." However, we believe that the better view of Olson is
      that the worker was not covered because the accident occurred in a
      "parking area," and, therefore, under the express provision ofRCW
      51.08.013, there was no coverage, despite the fact that he may still
      have been on the jobsite while leaving work. In other words, but for
      the express parking area exception, the worker in Olson would have
      had coverage because he was acting in the course of employment
      while on the employer's premises under the "going and coming" rule.

However, the court in Heim confused the issue in Olson. The issue was not

whether Olson was eligible for workers' compensation benefits under the IIA, but

whether Stem was entitled to third party immunity. Furthermore, the analysis in

Heim is not determinative of the issue before this court; Heim addresses an injured

party's eligibility for workers' compensation benefits, not a tortfeasor's eligibility

for third party immunity.

      Most recently, this court has determined that workers are in the same employ

where the tortfeasor can show (1) he had the same employer as the injured person

and (2) he was acting in the "scope and course of his or her employment" at the

time of injury. Evans, 124 Wn.2d at 444. We adopted the "scope and course"

requirement as the statutory standard under RCW 51.24.030 for determining

coemployee immunity. The analysis focuses on whether the third party defendant

could establish that he was performing duties for his employer. Thus, under this

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Entila v. Cook, No. 92581-0


standard, in order to be shielded from liability, the alleged tortfeasor employee

would have to show he or she was doing work or acting at the direction of his or

her employer.

      RCW 51.24.030 requires that a third party tortfeasor must demonstrate he or

she was in both the scope and course of employment. Evans articulated "scope and

course" as the standard for determining immunity and, as discussed above, other

cases have used a similar analysis-analyzing whether an employee was

performing duties for his or her employer. Evans, 124 Wn.2d at 444 (determining

there was a genuine question of material fact as to the husband's immunity because

he did not show his actual duties to the corporation or to the particular event);

Olson, 65 Wn.2d at 877 (holding that the tortfeasor was not entitled to immunity

for two reasons: (1) the parking lot was not covered by worker's compensation

statutes and (2) "he was neither 'acting at his employer's direction' nor 'in the

furtherance of his employer's business"'-the employee had finished his day's

work, he completed his tasks for the day, and he was driving home (quoting RCW

51.08.013)); Taylor, 18 Wn. App. at207-08 (concludingthetortfeasorwas still

acting in the course of employment because he was carrying out the duties of his

employer-starting the car to leave the office and make a bank deposit-despite




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Entila v. Cook, No. 92581-0


the injury falling with the parking lot exception ofRCW 51.08.013). 1 To the extent

any confusion exists in our prior cases, RCW 51.24.030 and RCW 51.08.013

require two separate analyses; RCW 51.24.030 guides third party immunity and

requires a third party tortfeasor to demonstrate he or she was doing work for the

employer at the time of injury.

       Both the legislature and this court's strong policy favoring third party

actions support this interpretation of RCW 51.24.030 here. In Evans, we

recognized that third party actions are preferred in order for the Department of

Labor and Industries (Department) to recoup benefits paid to the worker. 124

Wn.2d at 437. Most recently, we reaffirmed this reasoning in Michaels v. CH2M

Hill, Inc., recognizing that the tortfeasor does not pay into the industrial insurance

fund, thus, "'we will, in all doubtful cases, sustain the right of the injured workman

against the third party wrongdoer."' 171 Wn.2d 587, 599, 257 P.3d 532 (2011)

(quoting Mathewson v. Olmstead, 126 Wash. 269, 273, 218 P. 226 (1923)).


       1 Amicus   Washington State Association for Justice Foundation (WSAJF) articulates this
analysis by applying similar common law principles. The "scope" prong of the Evans standard is
similar to "whether [a] coworker's conduct would subject his or her employer to vicarious
liability.... This inquiry focuses on whether the worker was actually within the scope of
employment under the circumstances, in furtherance ofthe employer's business." Br. of Amicus
Curiae WSAJF at 4. As WSAJF noted, this analysis is much narrower than the statutory
definition of "acting in the course of employment." Thus, the scope prong of this analysis would
reign in a broad statutory definition that was intended to apply to workers seeking compensation
benefits; an immunity analysis is much more limited.



                                               10
Entila v. Cook, No. 92581-0


Applying RCW 51.08.013 's broad analysis would allow tortfeasors immunity

merely because they are located on the jobsite. Immunity would be available in

most cases, and third party actions would be an uncommon occurrence. This is

simply inconsistent with the legislature's and this court's long held policy that "the

right to sue a third party tortfeasor is a 'valuable right to the workman."' Michaels,

171 Wn.2d at 599 (quoting Burns v. Johns, 125 Wash. 387,392,216 P. 2 (1923)).

Instead, a tortfeasor must satisfy a much more narrow analysis and demonstrate he

or she was in both the scope and course of employment. This narrow reading of

RCW 51.24.030(l)'s "same employ'' language implements the statutory policy

favoring third party actions favorable not only to the worker, but also the

Department and self-insured employer.

      On appeal, Entila also argued that RCW 51.24.100 barred the trial court

from considering his receipt of benefits in determining Cook's immunity. The

Court of Appeals agreed. The statute provides:

       The fact that the injured worker or beneficiary is entitled to
       compensation under this title shall not be pleaded or admissible in
       evidence in any third party action under this chapter. Any challenge
       of the right to bring such action shall be made by supplemental
       pleadings only and shall be decided by the court as a matter of law.

RCW 51.24.100 (emphasis added). Here, the statute is unambiguous that an

employees' receipt of benefits is inadmissible in a third party action. Thus, the trial



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Entila v. Cook, No. 92581-0

   '
court erred by using Entila's receipt of benefits when determining Cook's

immunity.

       Cook argues that Orris v. Lingley, 172 Wn. App. 61, 288 P.3d 1159 (2012),

supports the proposition that IIA benefits are considered in a determination of

immunity. However, as the Court of Appeals correctly notes, the Orris court

"considered this evidence to decide the threshold question of whether the exclusive

remedy provisions of the IIA applied to Orris." Entila, 190 Wn. App. at 487. The

court looked at whether "an injured employee who has received benefits may sue a

negligent coemployee when the irljured employee was acting outside the course of

employment." Orris, 172 Wn. App. at 69-70. This analysis is entirely distinct from

the analysis our current case presents. Here, the analysis hinges on whether Cook,

the tortfeasor, was acting in the scope and course of employment. Because the

court in Orris was not determining coemployee immunity under RCW 51.24.030,

Cook's argument is unpersuasive. The language of the RCW is clear-an

employee's receipt of workers' compensation benefits plays no role in determining

third party immunity.




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Entila v. Cook, No. 92581-0


      We affirm the Court of Appeals' decision and remand to the trial court.




WE CONCUR:




                                        13
