 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 ETHAN BOUDREAUX, STANLEY
 BURTON, BRAD GUILBEAU, JIMMY                      DIVISION ONE
 OGLESBY, JR., DALTON TOMS, and
 JUSTIN WORTHINGTON,                               No. 78284-3-I

                        Appellants,                PUBLISHED OPINION

               V.
                                                   FILED: August 26, 2019
 WEYERHAEUSER COMPANY,

                         Respondent.

       DWYER, J.    —   Ethan Boudreaux and five of his former co-workers

(collectively Boudreaux) were exposed to formaldehyde in Weyerhaeuser’s Gen

4 Flak Jacket joist coating while working for a contractor performing services for

Weyerhaeuser Company in Louisiana. Boudreaux brought claims against

Weyerhaeuser under the Washington product liability act (WPLA), chapter 7.72

RCW, alleging injury caused by exposure to formaldehyde as a result of the

defective design, formulation, and fabrication of Weyerhaeuser’s Gen-4 Flak

Jacket joist coating. In response to the suit, Weyerhaeuser filed a CR 12(b)(1)

motion to dismiss, asserting that it was Boudreaux’s statutory employer under the

Louisiana Workers’ Compensation Act, L1~. STAT. ANN. § 23:1032, that

Boudreaux’s claims could only be brought before Louisiana’s Office of Workers’

Compensation Administration, and that the King County Superior Court
No. 78284-3-112

accordingly lacked subject matter jurisdiction over Boudreaux’s claims. The

superior court agreed and dismissed Boudreaux’s suit.

        We hold that Weyerhaeuser’s statutory employer defense pertains to

whether a civil cause of action exists, rather than to whether a Washington

superior court lacks subject matter jurisdiction. Because the trial court’s ruling

conflicts with our constitution’s grant of general subject matter jurisdiction to our

superior courts, we reverse.



        Boudreaux sued Weyerhaeuser, a Washington company with its

headquarters in Seattle, under the WPLA, alleging “harm caused by the

fabrication, design, formula, preparation, testing, failures to warn or instruct,

marketing, and labeling of Flak Jacket,” and “injuries as a result of being exposed

to toxic levels of formaldehyde contained in Gen 4 Flak Jacket.”1 Boudreaux was

exposed to Gen-4 Flak Jacket in Louisiana as an employee of Simsboro Coating

Services, LLC, a Louisiana company hired by Weyerhaeuser to provide coating

services, specifically coating joists with Weyerhaeuser’s Gen-4 Flak Jacket.

Boudreaux alleged that he was injured by exposure to formaldehyde in Gen-4

Flak Jacket from December 2016 through June 2017.

        Weyerhaeuser responded to the complaint by filing a motion to dismiss for

lack of subject matter jurisdiction pursuant to CR 12(b)(1).2 Therein,

Weyerhaeuser asserted that it was Boudreaux’s statutory employer under the


          Gen-4 Flak Jacket is a coating applied to joists used in construction to improve fire
resistance.
        2Weyerhaeuser also moved to stay discovery pending resolution of its motion to dismiss.
This motion was granted.


                                                     2
No. 78284-3-1/3

Louisiana Workers’ Compensation Act, LA. STAT. ANN.              § 23:1032, that
Boudreaux’s claims could only be brought before Louisiana’s Office of Workers’

Compensation Administration, and that the superior court accordingly lacked

subject matter jurisdiction over Boudreaux’s claims.3

        Following a hearing, the trial court granted Weyerhaeuser’s motion to

dismiss. In its brief memorandum opinion supporting the dismissal order, the trial

court engaged in fact finding, determined that Weyerhaeuser was Boudreaux’s

statutory employer, and ruled that Washington superior courts lacked subject

matter jurisdiction over Boudreaux’s claims. Boudreaux appeals.



        This case presents us with the question of whether Weyerhaeuser’s

asserted defense of statutory immunity pertains to the original subject matter

jurisdiction of Washington’s superior courts. To resolve this question, we first

look to how Washington courts consider assertions of employer immunity under

the substantive workers’ compensation laws of Washington, as set forth in the

Industrial Insurance Act (HA), Title 51 RCW. Next, we look to the workers’

compensation laws of Louisiana to determine whether any differences between

Louisiana’s and Washington’s substantive law would prevent the application of

Washington procedural law to Weyerhaeuser’s assertion of employer immunity.

This analysis results in a clear answer: the superior court erred by treating




        ~ Weyerhaeuser also asserted an alternative argument that Boudreaux’s claims should
be dismissed under the doctrine of forum non conveniens. The trial court did not rule on this
issue.


                                                   3
No. 78284-3-1/4

Weyerhaeuser’s statutory employer immunity defense as pertaining to the

subject matter jurisdiction of the superior court.

                                            A

       Our Supreme Court has noted that Washington’s courts, itself included,

have been ‘inconsistent in their understanding and application of jurisdiction.” In

re Marriage of Buecking, 179 Wn.2d 438, 447, 316 P.3d 999 (2013); see also

O’Keefe v. Dep’t of Revenue, 79 Wn.2d 633, 634, 488 P.2d 754 (1971)

(“Perhaps no word is more deserving of characterization as a ‘weasel word of the

law’ than the much used and often abused word ‘jurisdiction.”); In re Marriage of

Maior, 71 Wn. App. 531, 534, 859 P.2d 1262 (1993) (“The term ‘subject matter

jurisdiction’ is often confused with a court’s ‘authority’ to rule in a particular

manner. This has led to improvident and inconsistent use of the term.” (footnote

omitted)). The United States Supreme Court has also observed that in

circumstances in which the question of jurisdiction was “not central to the case”

and therefore did “not require close analysis,” courts have often

“mischaracterized claim-processing rules or elements of a cause of action as

jurisdictional limitations.” Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 161,

130 S. Ct. 1237, 176 L. Ed. 2d 18 (2010). According to the Court, such

mischaracterizations lead to “drive-by jurisdictional rulings,’ which too easily can

miss the ‘critical difference[s]’ between true jurisdictional conditions and

nonjurisdictional limitations on causes of action.” Reed Elsevier, 559 U.S. at 161

(alteration in original) (citation omitted) (quoting Kontrick v. Ryan, 540 U.S. 443,

456, 124 S. Ct. 906, 157 L. Ed. 2d 867 (2004)).



                                                4
No. 78284-3-1/5

       To counter this inconsistency, Washington’s Supreme Court has recently

“narrowed the types of errors that implicate a court’s subject matter jurisdiction.”

Buecking, 179 Wn.2d at 448. “‘Subject matter jurisdiction’ refers to a court’s

ability to entertain a type of case, not to its authority to enter an order in a

particular case.” Buecking, 179 Wn.2d at 448. Thus, “[a] court has subject

matter jurisdiction where it has authority ‘to adjudicate the type of controversy

involved in the action.” In re Marriage of McDermott, 175 Wn. App. 467, 480-81,

307 P.3d 717 (2013) (quoting Shoog v. Kittitas County, 108 Wn. App. 388, 393,

30 P.3d 529 (2001), aff’d on other grounds, 149 Wn.2d 29,65 P.3d 1194 (2003)).

“If the type of controversy is within the subject matter jurisdiction, then all other

defects or errors go to something other than subject matter jurisdiction.” Cole v.

Harveyland, LLC, 163 Wn. App. 199, 209, 258 P.3d 70(2011).

       The original subject matter jurisdiction of Washington’s superior courts is

set forth in the Washington Constitution:

       The superior court shall have original jurisdiction in all cases at law
       which involve the title or possession of real property, or the legality
       of any tax, impost, assessment, toll, or municipal fine, and in all
       other cases in which the demand or the value of the property in
       controversy amounts to three thousand dollars or as otherwise
       determined by law, or a lesser sum in excess of the jurisdiction
       granted to justices of the peace and other inferior courts, and in all
       criminal cases amounting to felony, and in all cases of
       misdemeanor not otherwise provided for by law; of actions of
       forcible entry and detainer; of proceedings in insolvency; of actions
       to prevent or abate a nuisance; of all matters of probate, of divorce,
       and for annulment of marriage; and for such special cases and
       proceedings as are not otherwise provided for. The superior court
       shall also have original jurisdiction in all cases and of all
       proceedings in which jurisdiction shall not have been by law vested
       exclusively in some other court; and said court shall have the power
       of naturalization and to issue papers therefor.



                                               5
No. 78284-3-1/6

CONST. art. IV,   § 6.
       Our Supreme Court has explained that the original subject matter

jurisdiction of the superior court is comprised of both enumerated subject matter

jurisdiction and residual subject matter jurisdiction. State v. Posey, 174 Wn.2d

131, 135-36, 272 P.3d 840 (2012). The enumerated original subject matter

jurisdiction of the superior court includes

       all cases at law which involve the title or possession of real
       property, or the legality of any tax, impost, assessment, toll, or
       municipal fine, and in all other cases in which the demand or the
       value of the property in controversy amounts to three thousand
       dollars or as otherwise determined by law, or a lesser sum in
       excess of the jurisdiction granted to justices of the peace and other
       inferior courts, and in all criminal cases amounting to felony, and in
       all cases of misdemeanor not otherwise provided for by law; of
       actions of forcible entry and detainer; of proceedings in insolvency;
       of actions to prevent or abate a nuisance; of all matters of probate,
       of divorce, and for annulment of marriage; and for such special
       cases and proceedings as are not otherwise provided for.

CONST. art. IV,   § 6; see also Posey, 174 Wn.2d at 135.
       In contrast to the specified categories of enumerated jurisdiction, the

residual jurisdiction of the superior court broadly includes “all cases and    .   .   .   all

proceedings in which jurisdiction shall not have been by law vested exclusively in

some other court.” Posey, 174 Wn.2d at 136 (quoting CONST. art. IV,         § 6).
       Enumerated and residual subject matter jurisdiction differ in both scope

and in the manner in which that scope may be altered. As explained in Posey,

enumerated original subject matter jurisdiction encompasses only those cases

falling within one of the explicitly li.sted categories in the constitution, and cannot

be modified or restricted by legislative enactment. 174 Wn.2d at 135-36.

Residual original subject matter jurisdiction, on the other hand, includes all other


                                               6
No. 78284-3-1/7

cases and proceedings, but may be restricted by legislative enactment if, and

only if, such enactment vests exclusive jurisdiction over nonenumerated types of

claims in some other court. Posey, 174 Wn.2d at 136; CONST. art. IV,      § 6.
       Both enumerated and residual subject matter jurisdiction may be modified

by a constitutional amendment adopted pursuant to the amendment procedure

set forth in our constitution:

       Any amendment or amendments to this Constitution may be
       proposed in either branch of the legislature; and if the same shall
       be agreed to by two-thirds of the members elected to each of the
       two houses, such proposed amendment or amendments shall be
       entered on their journals, with the ayes and noes thereon, and be
       submitted to the qualified electors of the state for their approval, at
       the next general election; and if the people approve and ratify such
       amendment or amendments, by a majority of the electors voting
       thereon, the same shall become part of this Constitution.

CONST. art. XXIII,   § 1.
                                          B

       We next turn to the substantive workers’ compensation law of

Washington, the lIA, to determine whether it places any limits on the subject

matter jurisdiction of Washington’s superior courts.

                                          I

       In the early years of statehood, employees could bring causes of action

against their employers in superior court seeking to recover damages for

workplace injuries. See ~ Withiam v. Tenino Stone Quarry, 48 Wash. 127,

129-30, 92 P. 900 (1907); Christianson v. Pac. Bridge Co., 27 Wash. 582, 585,

68 P. 191 (1902); Richardson v. Carbon Hill Coal Co., 6 Wash. 52, 56-57, 32 P.

1012 (1893); see also Reynolds v. Day, 79 Wash. 499, 506, 140 P. 681 (1914)



                                              7
No. 78284-3-I/S

(“Unquestionably, before the industrial insurance act was passed, our courts

would have entertained [common law tort] action[s between employees and

employers.]”). It is evident from reported case law that Washington’s superior

courts, at the time of statehood, had subject matter jurisdiction over tort actions

for personal injury brought by employees against their employers.4

         Then, “[i]n 1911, the legislature passed the Industrial Insurance Act (IlA),

Title 51 RCW, creating a no-fault system for efficiently compensating workers

injured on the job. As part of that system, employers receive immunity from civil

suits resulting from on-the-job injuries.” Walston v. Boeing Co., 181 Wn.2d 391,

393, 334 P.3d 519 (2014) (citing RCW51.04.010). “Washington’s IIA was the

product of a grand compromise in 1911. Injured workers were given a swift, no-

fault compensation system for injuries on the job. Employers were given

immunity from civil suits by workers.” Birklid v. Boeing Co., 127 Wn.2d 853, 859,

904 P.2d 278 (1995). The HA is intended to provide

        sure and certain relief for workers, injured in their work, and their
        families and dependents        .regardless of questions of fault and to
                                           .   .


        the exclusion of every other remedy, proceeding or compensation,
        except as otherwise provided in this title; and to that end all civil
        actions and civil causes of action for such personal injuries and all
        jurisdiction of the courts of the state over such causes are hereby
        abolished, except as in this title provided.

RCW 51.04.010.



        ‘1   Although we herein consider claims brought pursuant to the WPLA, and not common
law tort claims, the WPLA ‘supplant[ed] all common law claims or actions based on harm caused
by a product.” Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 409, 282 P.3d 1069 (2012).
The act specifically provided that “[t]he previous existing applicable law of this state on product
liability is modified only to the extent set forth in” the act. RCW 7.72.020(1). Therefore, as the
WPLA did not purport to affect the subject matter jurisdiction of Washington’s superior courts over
product liability claims, our jurisdictional analysis is unaffected by the supplanting of prior
common law claims with claims under the WPLA.


                                                    8
No. 78284-3-1/9

       Our Supreme Court was first tasked with interpreting the hA later that

year. See State ex rel. Davis-Smith Co. v. Clausen, 65 Wash. 156, 117 P. 1101

(1911). Therein, the court considered several constitutional arguments against

the IIA and concluded that the act did not violate either the state or federal

constitutions. Clausen, 65 Wash, at 212. One such argument was that the

statute unconstitutionally strips employers and employees of the right to a trial by

jury for the “admeasurement of damages arising from injuries received by one in

the employment of another.” Clausen, 65 Wash. at 207. In rejecting this

argument, the Supreme Court explained its view of the effect of the statute:

       The constitution does not undertake to define what shall constitute
       a cause of action, nor to prohibit the legislature from so doing. The
       right of trial by jury accorded by the constitution, as applicable to
       civil cases, is incident only to causes of action recognized by law.
        The act here in question takes away the cause of action, on the one
       hand, and the ground of defense, on the other; and merges both in
       a statutory indemnity, fixed and certain. .   .The right of jury trial
                                                         .


       being incidental to the right of action, to destroy the one is to leave
       the other nothing upon which to operate.

Clausen, 65 Wash. at 210-11 (emphasis added).

       Our Supreme Court was clear: the HA takes away a cause of action,

replacing it with a statutory indemnity. No subsequent case has rejected the

Clausen analysis of the effect of the lIA. Indeed, the opposite is true, as most

subsequent cases explicitly reiterate the Clausen court’s interpretation. ~

Meyer v. Burger King Coni, 144 Wn.2d 160, 164, 26 P.3d 925 (2001)

(recognizing that the IIA “abolishes most civil actions arising from on-the-job

injuries and replaces them with the exclusive remedy of industrial insurance

benefits”); Birklid, 127 Wn.2d at 859 (“Employers were given immunity from civil



                                             9
No. 78284-3-1110

suits by workers.”); Perry v. Beverage, 121 Wash. 652, 666, 214 P. 146 (1923)

(“[Am injured workman who is under the workmen’s compensation act, and

whose injury grew out of his employment, has no right of action, either against

his employer or against a third person, except as provided in the act.”); Stertz v.

Indus. Ins. Comm’n of Wash., 91 Wash. 588, 595, 158 P. 256 (1916) (“the [hA’s]

first section put an end to all civil actions appertain ing to master and servant

liability”), abrogated on other grounds by Birklid, 127 Wn.2d 853; State v.

Mountain Timber Co., 75 Wash. 581, 583, 135 P. 645 (1913) (stating that the lIA

“abolished rights of actions and defenses”), affd, 243 U.S. 219,37 S. Ct. 260,61

L. Ed. 685 (1917); Michelbrink v. Wash. State Patrol, 191 Wn. App. 414, 422,

363 P.3d 6 (2015) (“[Bjecause the legislature intended to immunize employers

from civil suits for workplace injuries, the IIA established a general prohibition on

all civil suits for damages arising out of workplace injuries, with only a few narrow

exceptions.”); Garibay v. State, 131 Wn. App. 454, 458, 128 P.3d 617 (2005)

(noting that the IIA “abolishes all common law claims for relief that might arise

due to an injury to an employee while acting in the scope of his employment

unless a statute specifically bestows such a right”).

       Subsequent decisions have also generally treated assertions of employer

immunity during the pretrial phase of litigation as affirmative defenses

appropriately resolved on summary judgment if there are no disputed issues of

material fact. See~.g~, Walston, 181 Wn.2d at 399 (holding that summary

judgment was appropriate when employee failed to raise question of material fact

as to whether Boeing had the actual knowledge of certain injury required to



                                             10
No. 78284-3-Ill 1

satisfy the deliberate injury provision of the hA); Olson v. Stern, 65 Wn.2d 871

874-75, 400 P.2d 305 (1965) (reversing the dismissal on summary judgment of

claims against a co-worker because workers’ compensation immunity affirmative

defense was not available when co-workers injured each other away from their

job sites); Buterbaugh v. Best Pie Co., 54 Wn.2d 919, 920, 339 P.2d 693 (1959)

(reversing a trial court order striking the affirmative defense of employer

immunity); Judy v. Hanford Envtl. Health Found., 106 Wn. App. 26, 34-35, 22

P.3d 810 (2001) (concluding that a motion for summary judgment was the

appropriate procedure to determine if contractors were one statutory employer

for the purposes of the hA when there were no disputed issues of material fact).

        Furthermore, our legislature also indicated, in two different sections of the

IIA, that it considered the passage of the lIA to have eliminated causes of action.

Indeed, such a belief is apparent upon consideration of the provision of the hA5

that sets forth an exception to the general rule of employer immunity from suit:

        If injury results to a worker from the deliberate intention of his or her
        employer to produce such injury, the worker or beneficiary of the
        worker shall have the privilege to take under this title and also have
        cause of action against the employer as if this title had not been
        enacted, for any damages in excess of compensation and benefits
        paid or payable under this title.

RCW 51.24.020 (emphasis added).6

        Not only does this section set forth the legislature’s view that it had

eliminated causes of action through the enactment of the IhA, but it also


         ~ We consider the context of the entire statutory scheme when analyzing the meaning of
a statutory provision. AllianceOne Receivables Mqmt., Inc. v. Lewis, 180 Wn.2d 389, 393, 325
P.3d 904 (2014) (citing Williams v. Tilaye, 174 Wn.2d 57, 63, 272 P.3d 235 (2012)).
         6 There has been no meaningful change to the cause of action language since the

statute’s enactment in 1911. LAWS OF 1911, ch. 74, § 6.


                                                   11
No. 78284-3-1112

established a new statutory cause of action.7 This new cause of action may be

brought by an employee for a workplace injury resulting from the deliberate

intention of an employer to produce such injury. Delthony v. Standard Furniture

Co~ 119 Wash. 298, 299, 205 P.379(1922); ROW 51.24.020. This new cause

of action is distinct from the preceding common law cause of action eliminated by

the lIA because it requires that an injury result from the deliberate intention of the

employer to cause such injury and limits recovery of damages to those amounts

in excess of the compensation or benefits paid or payable under the hA. See

Delthony, 119 Wash, at 299-300 (concluding in case where employee sought

damages in excess of IlA benefits that specific intent, and not “‘merely

carelessness or negligence, however gross,” was enough to satisfy the

requirements of ROW 51.24.020 (quoting Jenkins v. Carman Mfq. Co., 79 Or.

448, 155 P. 703 (1916))).

        The legislature also indicated that it intended the IIA to eliminate causes of

action in a section of the HA outlining the penalties faced by an employer that

failed to pay into the workers’ compensation accident fund.

                If any employer shall default in any payment to the accident
        fund hereinbefore in this act required, the sum due shall be
        collected by action at law in the name of the state as plaintiff, and

         ~ As our Supreme Court explained in Clausen, our constitution permits the legislature to
define that which constitutes a cause of action. 65 Wash. at 210. Indeed, the creation of new
causes of action is not an uncommon occurrence in Washington law. ~       ~,    Folweiler
Chiropractic, PS v. Am. Family Ins. Co., 5 Wn. App. 2d 829, 835-36, 429 P.3d 813 (2018) (“The
[Consumer Protection Act, ch. 1986 RCW] authorizes a private cause of action.” (quoting Panag
v. Farmers Ins. Co. of Wash., 166 Wn.2d 27, 37, 204 P.3d 885 (2009))), review denied, 193
Wn.2d 1001(2019); Macias, 175 Wn.2d at 409 (explaining that the WPLA’s statutory claims
“supplant[ed] all common law claims or actions based on harm caused by a product”); Federated
Servs. Ins. Co. v. Pers. Representative of Estate of Norberq, 101 Wn. App. 119, 126,4 P.3d 844
(2000) (citing RCW4.20.010, 4.24.010); Grayv. Goodson, 61 Wn.2d 319, 325, 378 P.2d 413
(1963) (stating that the wrongful death statutes create new causes of action for the benefit of
specific surviving relatives to compensate for losses caused to them by the decedent’s death”).


                                                   12
No. 78284-3-1/13

       such right of action shall be in addition to any other right of action or
       remedy. In respect to any injury happening to any of his workmen
       during the period of any default in the payment of any premium
       under section 4, the defaulting employer shall not, if such default be
       after demand for payment, be entitled to the benefits of this act, but
       shall be liable to suit by the injured workman (or the husband, wife,
       child or dependent of such workman in case death result from the
       accident), as he would have been prior to the passage of this act.

LAWS OF 1911, ch. 74,   § 8 (emphasis added).
       By authorizing a right of action in circumstances in which an employer

defaulted on payments to the accident fund, the legislature identified the effect of

the hA as eliminating the right of action in circumstances in which an employer

properly made payments into the accident fund. While the language authorizing

employees to file tort actions against defaulting employers was subsequently

removed from the act—it was replaced with financial penalties for employers who

default on payments, see LAWS OF 1917, ch. 28,     § 2;   LAWS OF 1917, ch. 120,    § 5;
Freyman v. Day, 108 Wash. 71, 72, 182 P. 940 (191 9)—we look to it now

because it demonstrates the 1911 legislature’s belief that the superior courts

retained original subject matter jurisdiction to decide cases brought against

employers by employees seeking to recover damages for workplace injuries.

       Additionally, we note that more recently, in 1993, our legislature amended

ROW 4.22.070, which sets forth the manner in which tort liability is proportioned

among at-fault entities. LAWS OF 1993, ch. 496,    § 1. As amended, ROW
4.22.070(1) directs that “the trier of fact shall determine the percentage of the

total fault which is attributable to every entity which caused the claimant’s

damages except entities immune from liability to the claimant under Title 51

(Emphasis added.) Thus did the legislature expressly state that Title 51 ROW


                                             13
No. 78284-3-1/14

grants immunity from liability. The legislature, in other words, reaffirmed that

Title 51 RCW prevents employees from recovering, through a tort action, against

employers for workplace injuries resulting from the negligence of the employer.

                                                2

        We next consider whether any reported case law compels us to conclude

that the lIA divested Washington’s superior courts of any aspect of their

constitutionally granted original subject matter jurisdiction.8 No such decision

does so.

        We first note that Clausen did not hold that the IIA had an effect on the

original subject matter jurisdiction of the superior court. Furthermore, when

presented with a direct challenge to Clausen in Mountain Timber Co., our

Supreme Court reaffirmed that the HA “abolished rights of actions and defenses.”

75 Wash, at 583. Neither Clausen nor Mountain Timber Co., which together

encompass our Supreme Court’s earliest comprehensive review of the effects of

the hA, declared that the lIA had an effect on the original subject matter

jurisdiction of the superior court.

        It was not until four years after Clausen, in Replogle v. Seattle School

District No. 1,84 Wash. 581, 586, 147 P. 196 (1915), that our Supreme Court

would first declare that causes of action for injuries subject to the IlA had been

“withdrawn from the jurisdiction of the courts.” To declare, however, that causes

of action have been eliminated and thus removed from the jurisdiction of




        8  Hence, we examine the distinction between eliminating causes of action and eliminating
original subject matter jurisdiction.


                                                    14
No. 78284-3-1/15

Washington’s superior courts is not the same as declaring that the hA divested

Washington’s superior courts of original subject matter jurisdiction.

       In Replogle, the court considered a cause of action brought by an

employee against his employer, Seattle School District No. 1, for injuries

sustained while on the job repairing an electric motor. 84 Wash, at 581-83.

The District asserted, as an affirmative defense, that employee Replogle had

been engaged in extrahazardous employment covered by the IlA and that he

could therefore not bring a civil action against the District. Replogle, 84 Wash, at

582-84. The superior court did not agree and a trial resulted in entry of judgment

in favor of Replogle. Replogle, 84 Wash. at 583-84. On appeal, the Supreme

Court reversed. Replogle, 84 Wash. at 587.

       The Supreme Court’s decision framed the issue as one pertaining to

jurisdiction, and declared that the employee’s cause of action had been

“withdrawn from the jurisdiction” of the superior court. Replogle, 84 Wash. at

586. However, the Supreme Court did not conduct any jurisdictional analysis in

its decision. Instead, the Supreme Court asserted that the analysis in its prior

decision in Peet v. Mills, 76 Wash. 437, 136 P. 685 (1913) (which set forth the

IIA-abohishing-causes-of-action analysis from Clausen and Mountain Timber Co.,

Peet, 76 Wash. at 439-41) was controlling. Replocile, 84 Wash, at 585-86.

Given this context, it is clear that Replogle did not overrule or repudiate Clausen.

Neither did it conclude that the hA divested the superior court of original subject

matter jurisdiction. Instead, it held that the superior court cannot exercise its

authority over causes of action that have been abolished because without a



                                             15
No. 78284-3-1/16

cause of action there is nothing for the superior court to act on. This brings to

mind our Supreme Court’s recent acknowledgement that in the past it had

sometimes utilized the term jurisdiction to mean a court’s “authority to enter an

order in a particular case.” Buecking, 179 Wn.2d at 448. As our Supreme Court

has now explained, such use of the word jurisdiction does not properly refer to

subject matter jurisdiction. Buecking, 179 Wn.2d at 448.

       While Replogle framed the issue therein presented as pertaining to

jurisdiction, it was not until 1978 that our Supreme Court announced as a holding

that the hA impacted the subject matter jurisdiction of the superior court over tort

actions for workplace injuries. In Seattle-First National Bank v. Shoreline

Concrete Co., 91 Wn.2d 230, 242, 588 P.2d 1308 (1978), the court observed that

“the Act ‘immunizes,’ from judicial jurisdiction, all tort actions which are premised

upon the ‘fault’ of the employer vis-à-vis the employee.” This statement was

unremarkable and entirely consistent with Clausen.

       The court, however, then went further, stating that “[w]e thus hold that

under the Act the courts have no jurisdiction over an action premised upon or

necessarily involving this ‘immunized’ area of tort law.” Seattle-First, 91 Wn.2d at

242. The claims at issue, the court explained, “are based upon the ‘immunized’

conduct of [the employer] vis-à-vis decedent [employee;] they are not judicially

cognizable.” Seattle-First, 91 Wn.2d at 243.

      The court then announced its decision on the issue presented:

             Since none of the third-party claims asserted against [the
      employer] arose from conduct independent of that ‘immunized’ by
      the Act, we hold that the trial court erred in directing that [the
      employer] remain a party to the third-party actions.


                                             16
No. 78284-3-1/17


Seattle-First, 91 Wn.2d at 244.

        It is plain that the court’s ultimate holding, quoted above, was not

dependent on the court’s first holding—that the superior court lacked subject

matter jurisdiction.

       Indeed, the issues presented were whether an employer’s fault may be

considered to reduce damages obtainable by an employee suing a third party

and whether the third party may implead the employer as a defendant. Seattle-

First, 91 Wn.2d at 24 1-42. As with Replogle, although the court declared that the

IlA “immunized” tort actions against employers from judicial jurisdiction, to

support this declaration the court cited only to cases that utilized the Clausen

cause of action analysis. Seattle-First, 91 Wn.2d at 241-42 (citing Kelley v.

Howard S. Wright Constr. Co., 90 Wn.2d 323, 327, 582 P.2d 500 (1978)

(“Kelley’s employer, H. H. Robertson, is covered by the State Industrial Insurance

Act and is immune from liability in any action for Kelley’s injuries.”); Ledesma v.

A. F. Murch Co., 87 Wn.2d 203, 205, 550 P.2d 506 (1976) (“The exclusive

remedy provisions of the [IIA]   .   .   .   act, therefore, as an absolute bar to plaintiffs’

cause of action.”); Westv. Zeibell, 87Wn.2d 198, 201, 550 P.2d 522 (1976)

(“[T]he intent of the legislature to bar an action such as that brought by plaintiffs

is clear.”); Greenleaf v. Puget Sound Bridge & Dredging Co., 58 Wn.2d 647, 649,

364 P.2d 796 (1961) (“[T]he industrial insurance act affords immunity to the

employer only. It is not a bar to an action against a negligent third party.”);

Stertz, 91 Wash. at 595 (“{T]he [HA’s] first section put an end to all civil actions

appertaining to master and servant liability.”)). Furthermore, the court did not


                                                      17
No. 78284-3-1/18

contend that it was overruling the Clausen analysis or disagreeing with the

application of that analysis as set forth in the various cases it cited in support of

its conclusions. Therefore, as with Replogle, it is apparent that Seattle-First is

yet another example of what our Supreme Court declared in Buecking to be the

inconsistent usage of the term jurisdiction to refer to a court’s authority to enter

orders in a case. See Buecking, 179 Wn.2d at 448.

        Most recently, in dicta in Posey, our Supreme Court again described Title

51 RCW as affecting the jurisdiction of the superior court over common law tort

claims for workplace injuries. 174 Wn.2d at 136. The court therein held that “the

legislature cannot deprive the superior courts of their constitutional jurisdiction

over felony offenses.” Posey, 174 Wn.2d at 135. This is so, according to the

court, because the constitution specifically enumerates felony offenses as a type

of proceeding over which the superior court has original subject matter

jurisdiction, and such enumerated jurisdiction cannot be modified by the

legislature. Posey, 174 Wn.2d at 140.

        Unrelated to its analysis of the issue presented in the case, as part of its

explanation of the superior court’s constitutionally granted original residual

subject matter jurisdiction, the court observed that

        [i]t is with respect to cases and proceedings that fall within the
        residual jurisdiction of the superior courts that the legislature can
        vest exclusive jurisdiction in an alternative forum. For example, by
        limiting the common law tort claims of injured workers and creating
        administrative procedures and enhanced remedies under the
        Industrial Insurance Act, Title 51 RCW, the legislature effectively
        modified the role of the superior courts over such claims.~9]

        ~ Related to this assertion, the court cited two cases, Lidke v. Brandt, 21 Wn.2d 137, 150
P.2d 399 (1944), and Dougherty v. De~’t of Labor & Indus., 150 Wn.2d 310,76 P.3d 1183 (2003).
Neither of these decisions resolved issues pertaining to the original subject matter jurisdiction of


                                                     18
 No. 78284-3-1119


Posey, 174 Wn.2d at 136.

         Once again, even if this observation was other than dicta, it did not purport

to overrule Clausen. Furthermore, the hA did limit common law tort claims of

injured workers and, by so doing, it did modify the role of the superior courts over

such claims. All of that is true and correctly stated in Posey. That truth,

however, does not mean that the act diminished the original subject matter

jurisdiction of the superior court.

        This postulation is reinforced by the analysis of subject matter jurisdiction

presented in Posey itself, in which the majority notes that            “[ut is conceptually
incoherent to suppose that a court’s power to determine a case depends on its

determination in the case.” 174 Wn.2d at 139. Indeed, perhaps inadvertently,

the court’s use of the term “alternate forum” misstates the constitutional

requirement that residual subject matter jurisdiction be legislatively placed

exclusively in another court in order to limit the subject matter jurisdiction of the

superior court. See CONST. art. IV,         § 6 (“The superior court shall also have
original jurisdiction in all cases and of all proceedings in which jurisdiction shall

not have been by law vested exclusively in some other court.” (emphasis

added)).1° Thus, Posey does not set forth a holding that the IIA divested the




the superior court. Rather, they pertained to the appellate jurisdiction of the superior court over
decisions of the Board of Industrial Insurance Appeals. Dougherty, 150 Wn.2d at 314-15; Lidke,
21 Wn.2d at 139. Neither of these decisions held that the IIA divested the superior court of
original subject matter jurisdiction, nor did these decisions overrule Clausen.
         10 Workers’ compensation claims must be initiated in an executive branch agency. That

is not a court. See coNs]-. art. IV, § 1 (“JUDICIAL POWER, WHERE VESTED. The judicial
power of the state shall be vested in a supreme court, superior courts, justices of the peace, and
such inferior courts as the legislature may provide.”).


                                                     19
No. 78284-3-1/20

superior court of original subject matter jurisdiction over claims brought by

employees against their employers for workplace injuries.

                                                   3

         Our next task is to utilize the jurisdictional framework set forth in Posey to

analyze whether, upon its adoption or at any later time, the IIA divested

Washington’s superior courts of original subject matter jurisdiction.

Weyerhaeuser asserts that the superior courts lack subject matter jurisdiction

over actions against an employer “to obtain relief for workers injured in their

work.” Our analysis leads to a contrary conclusion.

        As our Supreme Court noted in Posey, our constitution grants the superior

courts two forms of original subject matter jurisdiction, enumerated and residual.

174 Wn.2d at 135-36. Again, in the enumerated categories, “where the

constitution specifically grants jurisdiction to the superior courts, the legislature

cannot restrict the jurisdiction of the superior courts.” Posey, 174 Wn.2d at 135

(citing Blanchard v. Golden Age Brewing Co., 188 Wash. 396, 418, 63 P.2d 397

(1936)). In contrast, the constitution permits the legislature to vest subject matter

jurisdiction in other courts for those cases and proceedings arising outside of the

enumerated list. CONST. art. IV,         § 6; Posey, 174 Wn.2d at 136. These latter
cases and proceedings comprise the original residual subject matter jurisdiction

of Washington’s superior courts.11

        One of the enumerated categories of cases in our constitution over which

the superior court is given original subject matter jurisdiction is “all other cases in


         ~ Both forms of original subject matter jurisdiction are subject to alteration by
constitutional amendment.


                                                       20
No. 78284-3-1/21

which the demand or the value of the property in controversy amounts to three

thousand dollars or as otherwise determined by law.” CONST. art. IV,      § 6. Thus,
barring a constitutional amendment, it is clear that any tort action filed by an

employee against an employer for workplace injuries demanding amounts of at

least $3,000 is within the enumerated original subject matter jurisdiction of the

superior court and cannot possibly have been diminished by legislative

enactment. See Posey, 174 Wn.2d at 135-36; see also ZDI Gaming Inc. v.

Wash. State Gambling Comm’n, 173 Wn.2d 608, 630, 268 P.3d 929 (2012)

(Johnson, J., dissenting) (“So long as the amount in controversy surpasses the

jurisdictional threshold, a superior court’s original jurisdiction comes directly from

the state constitution.”).

       Similarly, even for claims for workplace injuries demanding less than

$3,000, and thus falling within the residual original subject matter jurisdiction of

the superior court, the IIA still could not have divested the superior court of

original subject matter jurisdiction. We say this because the act did not assign

original subject matter jurisdiction over common law tort actions for workplace

injuries to any other court.12 Instead, it abolished such common law tort actions,

replacing them with a statutory indemnity. See Clausen, 65 Wash, at 210-11.

Therefore, it must be that the IIA, which did not amend the constitution, could not

have divested Washington’s superior courts of original subject matter jurisdiction

over tort actions filed by employees against employers seeking to recover

damages for workplace injuries.



       12Seen.1O, su~ra.


                                             21
No. 78284-3-1/22

         In support of its contention that the superior court lacked original subject

matter jurisdiction, Weyerhaeuser cites to the portion of RCW 51 .04.010 that

states that “all jurisdiction of the courts of the state over [workplace injury actions]

are hereby abolished, except as in this title provided,” and Deeter v. Safeway

Stores, Inc., 50 Wn. App. 67, 747 P.2d 1103 (1987). Neither persuades us that

the superior court lacked original subject matter jurisdiction herein.

        First, although RCW 51 .04.010 states that “all jurisdiction of the courts of

the state over [workplace injury actions] are hereby abolished, except as in this

title provided,” this language does not purport to (and could not) abolish the

original subject matter jurisdiction of the superior court. As just discussed above,

the legislature lacks the authority to divest the superior court of its constitutionally

granted subject matter jurisdiction over tort actions for workplace injuries. See

CONST. art IV, §6; see also Posey, 174 Wn.2d at 135; ZDI Gaming Inc., 173

Wn.2d at 630 (Johnson, J. dissenting) (“While the legislature can restrict the

superior court’s jurisdiction by changing the amount-in-controversy requirement

or abolishing the substantive law for a particular type of common law tort claim,

the legislature cannot otherwise restrict the type of tort controversy that a

superior court may adjudicate.” (citation omitted)). Furthermore, as we discussed

in Part Il.B.1, RCW 51.24.020, establishing a statutory cause of action for

workplace injuries resulting from the deliberate intent of the employer to cause

such injuries, indicates that the legislature considered the operative effect of the

IIA to be the abolishment of causes of action.13 See Amalg. Transit Union Local


        13 Additionally, although subsequently removed from the ambit of the act, the inclusion in
the original hA of a right of action against employers for workplace injuries when the employer


                                                    22
 No. 78284-3-1/23

587 v. State, 142 Wn.2d 183, 220, 11 P.3d 762, 27 P.3d 608 (2000) (“The

meaning of language must also be determined from the enactment as a whole,

with each provision read in relation to the other provisions.” (citing City of Seattle

v. Dep’t of Labor & Indus., 136 Wn.2d 693, 698, 965 P.2d 619 (1998); Hubbard v.

Dept of Labor & Indus., 140 Wn.2d 35, 43, 992 P.2d 1002 (2000))). Moreover,

as our Supreme Court has noted, the judicial use of the term jurisdiction in

Washington, in the past, encompassed a court’s authority to enter orders in an

action. Bueckinci, 179 Wn.2d at 448. In light of past judicial imprecision and

confusion surrounding use of the word jurisdiction, and as the IlA does not define

the term, the legislature’s invocation of the word jurisdiction in RCW 51 .04.010 is

best understood as a reference to the superior court’s authority to enter orders in

an action—an imprecise use of the term in the context of a court’s authority when

presented with an abolished cause of action.

        Second, Deeter does not even address Weyerhaeuser’s contention that

the HA divested the superior court of original subject matter jurisdiction. In

Deeter, Safeway moved to dismiss Deeter’s claims for lack of subject matter

jurisdiction, the trial court dismissed Deeter’s claims, and we affirmed on appeal.

50 Wn. App. at 72, 79. However, as our decision explicitly states, the trial court

therein did not rule that it lacked original subject matter jurisdiction. Instead, it

“ruled that the Deeters had failed to establish a prima facie case of an intentional

tort by Safeway.” Deeter, 50 Wn. App. at 72. In our decision, we simply


had defaulted on payments to the accident fund clearly denotes the legislature’s belief that
Washington’s superior courts retained subject matter jurisdiction over civil actions brought by
employees against their employers to recover damages for workplace injuries. ~ LAWS OF
1911, ch. 74, § 8.


                                                    23
No. 78284-3-1/24

explained that “the exclusivity provisions of the hA bar an action against the

employer for an injury incurred by the worker in the course of employment.”

Deeter, 50 Wn. App. at 73. Nothing in the Deeter opinion supports

Weyerhaeuser’s contention that the superior court herein lacked original subject

matter jurisdiction.

       Measured against the demands of the Washington Constitution, nothing

the Washington legislature has enacted as part of the IlA has divested

Washington’s superior courts of any part of their constitutionally granted original

subject matter jurisdiction.

                                          C

       In support of the trial court’s ruling, Weyerhaeuser asserts that the

Louisiana state legislature divested Washington’s superior courts of original

subject matter jurisdiction when it enacted workers’ compensation legislation in

Louisiana. This is not so.

       Although Congress or the Washington state legislature may affect the

residual original subject matter jurisdiction of Washington superior courts, the

legislatures of other states do not have the power to limit the constitutionally

granted subject matter jurisdiction of Washington superior courts. ~

McDermott, 175 Wn. App. at 481 n.5 (“It goes without saying that the Washington

Legislature cannot confer subject matter jurisdiction upon the trial courts of

Kansas.”). Indeed, it would be a remarkable perversion of our republican form of

government, see U.S. CONST. art. IV,   § 4, for Louisiana’s state legislature—
containing no members voted into office by any residents of Washington—to



                                              24
No. 78284-3-1/25

have the power to supersede the Washington Constitution and limit the subject

matter jurisdiction of Washington courts. The Louisiana legislature plainly does

not have the power to divest Washington’s superior courts of subject matter

jurisdiction granted to them by the Washington Constitution.

                                                D

        The question of employer immunity from actions for workplace injuries

does not, in fact, raise any issues pertaining to the original subject matter

jurisdiction of the superior court. Thus, a CR 12(b)(1) motion to dismiss for lack

of subject matter jurisdiction was the improper vehicle for Weyerhaeuser’s

assertion of employer immunity.14 An assertion of immunity is not a jurisdictional

argument but, as explained in Clausen, is an assertion that the plaintiff employee

has failed to assert a viable cause of action. See 65 Wash. at 210-11.

        CR 12 sets forth the appropriate motion for such an assertion, a CR

12(b)(6) motion for the failure to state a claim upon which relief may be granted.15


        14   Even though Weyerhaeuser’s assertion of immunity is premised on the substantive law
of Louisiana, we still apply Washington procedural law to determine the proper mechanism
through which Weyerhaeuser should have asserted immunity in a Washington court. See
RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 122 (AM. LAW INST. 1971) (‘A court usually
applies its own local law rules prescribing how litigation shall be conducted.”); see ~i~g Jni~
Marriage of Ulm, 39 Wn. App. 342, 345, 693 P.2d 181 (1984) (explaining that Washington may
apply its own statute of limitation to actions seeking to enforce foreign judgments because such
limitation is procedural); Smith v. Am. Mail Line, Ltd., 58 Wn.2d 361, 366, 363 P.2d 133 (1961)
(concluding that Washington courts apply their own procedural rules and applying Washington’s
standards for deciding a motion for a new trial).
          We further note that Louisiana, like Washington, treats assertions of employer immunity
procedurally as an affirmative defense. Brown v. Adair, 846 So. 2d 687, 690 (La. 2003) (‘[T]he
tort immunity provided by the [Workers’ Compensation] Act operates as an affirmative defense; it
     serves as a vehicle for asserting a substantive defense that defeats an otherwise viable
claim.”). In Louisiana, an affirmative defense is a defense that “raises [a] new matter which,
assuming the allegations in the petition to be true, constitutes a defense to the action and will
have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So. 2d
111, 114 (La. 1975). Thus, it is straightforward to apply Washington procedural law to review
assertions premised on the law of Louisiana as it relates to employer immunity from suits brought
for workplace injuries.
          1~ CR 12(b) states, in pertinent part:




                                                    25
No. 78284-3-1/26

The superior court should either have treated Weyerhaeuser’s motion as a CR

12(b)(6) motion or denied the CR 12(b)(1) motion as failing on its merits. See

~ State v. Adams, 107 Wn.2d 611, 620, 732 P.2d 149 (1987) (considering

pleadings on their facts, not their titles); Cob. Nat’l Bank of Denver v. Merlino, 35

Wn. App. 610, 614, 668 P.2d 1304 (1983) (measuring motions by their content

rather than their form or language).

                                               Ill

       Having now identified the proper procedural method under CR 12 through

which the superior court should have analyzed Weyerhaeuser’s assertion of

employer immunity, we turn to the immunity arguments presented in this case.

Weyerhaeuser asserts that it is immune from suit because it is Boudreaux’s

statutory employer under Louisiana’s “two contract defense.” In response,

Boudreaux asserts that some of his injuries occurred outside of the scope of the

“two contract defense,” and that Weyerhaeuser may be sued to recover for

injuries outside of that defense. Boudreaux has the better argument.

      We review dismissals pursuant to CR 12(b)(6) de novo. Wash. Trucking

Ass’ns v. State Emp’t Sec. Dep’t, 188 Wn.2d 198, 207, 393 P.3d 761 (2017).

“Under CR 12(b)(6), dismissal is appropriate only when it appears beyond doubt

that the claimant can prove no set of facts, consistent with the complaint, which

would justify recovery.” San Juan County v. No New Gas Tax, 160 Wn.2d 141,



      How Presented. Every defense, in law or fact, to a claim for relief in any
      pleading, whether a claim, counterclaim, cross claim, or third party claim, shall be
      asserted in the responsive pleading thereto if one is required, except that the
      following defenses may at the option of the pleader be made by motion:       . (6)
      failure to state a claim upon which relief can be granted.


                                                     26
 No. 78284-3-1/27

 164, 157 P.3d 831 (2007). On review, we presume “the truth of the allegations

 [of the complaint] and may consider hypothetical facts not included in the

 record.”16 Wash. Trucking Ass’ns, 188 Wn.2d at 207.

         Much like Washington’s IIA, Louisiana’s workers’ compensation statutes

“reflect[] a compromise between the competing interests of employers and

employees” whereby the employers give up defenses otherwise enjoyable in

cases where they are not at fault while the employee surrenders the right to full

damages. Allen v. State ex rel. Ernest N. Morial-New Orleans Exhibition Hall

Auth., 842 So. 2d 373, 377 (La. 2003). To prevent employers from escaping the

absolute liability imposed by workers’ compensation legislation, the Louisiana

legislature “provided that some principals were by statute deemed, for purposes

of liability for workers’ compensation benefits, the employers of employees of

other entities.” Allen, 842 So. 2d at 377-78.

        Specifically, Louisiana’s workers’ compensation statutes provide tort

immunity for a “principal” statutory employer when that employer “undertakes to

execute any work, which is a part of his trade, business, or occupation and

contracts with any person, in this Section referred to as the ‘contractor,’ for the

execution by or under the contractor of the whole or any part of the work


        16  This points to another error in the trial court proceeding: the trial court weighed the
 evidence in making its ruling. Whether this was proper in the context of a CR 12(b)(1) motion (an
 issue the parties hotly contest), it definitely was not proper for a CR 12(b)(6) motion. Moreover,
although CR 12(b) provides that CR 12(b)(6) motions may be converted to motions for summary
judgment under CR 56 where material outside of the pleadings is considered by the trial court,
and the trial court herein considered evidence beyond the pleadings, we decline to consider this
evidence on review. CR 12(b) specifically conditions the conversion of CR 12(b)(6) motions on
the requirement that all parties “be given reasonable opportunity to present all material” pertinent
to a summary judgment motion. Herein, Boudreaux did not have such a reasonable opportunity
to present evidence pertinent to a summary judgment motion because Weyerhaeuser
successfully moved to stay discovery.


                                                     27
No. 78284-3-1/28

undertaken by the principal.’ LA. STAT. ANN.             § 23:1061(1). The statute further
provides that an implied statutory employer relationship exists only “whenever

the services or work provided by the immediate employer is contemplated by or

included in a contract between the principal and any person or entity other than

the employee’s immediate employer.”17 LA. STAT. ANN.                 § 23:1061(2); ~aiso
LA. STAT. ANN.    § 23:1061(3). This “two contract defense” applies when “(1) the
principal enters into a contract with a third party; (2) pursuant to that contract,

work must be performed; and (3) in order for the principal to fulfill its contractual

obligation to perform the work, the principal enters into a subcontract for all or

part of the work performed.” Allen, 842 So. 2d at            37918


        The parties herein dispute whether all of Boudreaux’s injuries occurred

while he performed work contemplated by Weyerhaeuser’s contracts with third

parties. The complaint, however, does not specify one way or the other, it simply

alleges that Boudreaux was injured during the time period of December 2016



        17  A statutory employer relationship can also be explicitly provided for in a contract
between a statutory employer and a contractor, but neither party herein contends that
Weyerhaeuser’s contract with Boudreaux’s employer explicitly stated that Weyerhaeuser was a
statutory employer.
         18 The parties devote a significant portion of their briefing to analyzing whether or not

there is a “temporal requirement” to the “two contract defense.” Their argument centers on a
misinterpretation of Allen by the trial court. ~jj~j~ considered whether the order in which the two
contracts necessary for the defense were entered into has any effect on the availability of the
defense, and concluded that it has no effect. 842 So. 2d at 382 (“Regardless of the timing of the
contracts between the principal contractor and the employer, if the injured employee is engaged
in the principal’s work ‘at the time of the injury,’ under the clear definition of ‘principal’ the
triggering event is ‘at the time of injury,’ not the timing of the contracts.”). The trial court,
however, appears to have taken the ~Ji~J2 holding to mean that injuries occurring prior to or after
the completion of any Weyerhaeuser contracts with third parties are always still within the ambit
of the “two contract defense.” But this is not necessarily so. The statute is very clear that what
matters is whether, at the time of injury, the employee is performing work “contemplated by or
included in a contract between the principal and any person or entity other than the employee’s
immediate employer.” LA. STAT. ANN. § 23:1061(2). If a contractor’s employee performs work for
the principal outside of the scope contemplated by that employer’s contracts with third parties,
and is injured, the principal may not claim immunity under the “two contract defense.”


                                                    28
No. 78284-3-1/29

through June 2017 while performing work for Weyerhaeuser. Thus, the question

we must resolve is whether, hypothetically, it is possible that Weyerhaeuser’s

contracts may not have contemplated all of the work Boudreaux performed for

Weyerhaeuser during which he was injured by his exposure to Gen-4 Flak

Jacket. We conclude that, on the facts presented in the complaint and the

additional hypothetical facts proposed by Boudreaux, a jury could find that

Weyerhaeuser was not Boudreaux’s statutory employer at the time of injury.

        Boudreaux asserts that he was injured while performing work outside of

the contemplation of Weyerhaeuser’s third-party contracts, specifically by

performing testing prior to production runs of Gen-4 Flak Jacket coated joists and

by destroying leftover coated joists following the termination of Weyerhaeuser’s

contracts with third parties.19 These hypothetical facts are sufficient to avoid

dismissal for failure to state a claim upon which relief may be granted. See

FutureSelect Portfolio Mgmt., Inc. v. Tremont Gm. Holdings, Inc., 180 Wn.2d

954, 963, 331 P.3d 29 (2014) (“Therefore, a complaint survives a CR 12(b)(6)

motion if any set of facts could exist that would justify recovery.” (quoting Hoffer

v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988))). Based on these facts, a

jury could find that Weyerhaeuser was not Boudreaux’s statutory employer at the

time of injury. Boudreaux successfully stated a claim for which relief could be

granted.



         19 In briefing, Weyerhaeuser asserts that preproduction trials and postproduction clean-up

work are “plainly contemplated in any manufacturing contract or product sales contract.”
Weyerhaeuser offers no support for this conclusion. As such, it is not a fact. See Grimwood v.
Univ. of PuQet Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988) (explaining that
conclusions are not facts).


                                                    29
No. 78284-3-1/30

                                           lv
          Weyerhaeuser contends, in the alternative, that we should affirm the

dismissal of Boudreaux’s claims under the doctrine of forum non conveniens.

Because the trial court did not rule on Weyerhaeuser’s forum non conveniens

argument, we decline to consider it.

          Under the doctrine of forum non conveniens, trial courts have “the

discretionary power to decline jurisdiction when the convenience of the parties

and the ends of justice would be better served if the action were brought in

another forum.” J.H. Baxter & Co. v. Cent. Nat’l Ins. Co. of Omaha, 105 Wn.

App. 657, 661, 20 P.3d 967 (2001). As the matter is discretionary, we review

such decisions only for an abuse of discretion. J.H. Baxter & Co., 105 Wn. App.

at 661.

          But the trial court herein declined to rule on Weyerhaeuser’s forum non

conveniens argument. Thus, there was no exercise of discretion by the trial court

for us to review on appeal. To rule on Weyerhaeuser’s forum non conveniens

argument would require us to improperly exercise the discretion granted to the

trial court. We decline to do so.

                                           V
          We conclude (1) that Weyerhaeuser did not raise a jurisdictional issue in

its CR 12(b)(1) motion to dismiss, (2) that the proper procedure through which

Weyerhaeuser should have asserted employer immunity in this case was through

a CR 12(b)(6) motion for failure to state a claim upon which relief can be granted,

and (3) that Boudreaux’s complaint did state a claim for which relief could be



                                                30
No. 78284-3-1/3 1

granted. Therefore, we reverse and remand for further proceedings consistent

with this opinion.

       Reversed and remanded.




WE CONCUR:



    ______________                              ~         /1




                                        31
