DuVON v. ROCKWELL INTERNATIONAL

THOMPSON, J.

Robert DuVon brought this negligence action against Rockwell International, his former employer, for damages for injuries he incurred at work when a machine manufactured by Rockwell allegedly malfunctioned.1 At the time of the accident, Mr. DuVon worked for Westinghouse Hanford Company, which had succeeded Rockwell just 5 days before as the government contractor on the Hanford Project. Rockwell unsuccessfully moved for summary dismissal, contending that Mr. DuVon's exclusive remedy was workers' compensation. We granted discretionary review to consider whether the policy expressed in Corr v. Willamette Indus., Inc., 105 Wn.2d 217, 223, 713 P.2d 92 (1986) precludes Mr. DuVon's action. We hold that Corr is distinguishable and affirm.

Willamette Industries, the defendant in Corr, had absorbed Corco, Inc., in a 1977 merger. It acquired Corco's plant and inventory, including two bulk bin compressor units which had been designed and built by Corco employees and used exclusively in Corco's manufacture of cardboard boxes. Willamette also succeeded to all of Corco's liabilities and obligations.

In 1980, Willamette's subsidiary employed Mr. Corr, who subsequently was injured while cleaning one of the bulk bin compressor units. Mr. Corr initiated a products liability action against Willamette, but the action was dismissed on the ground that the workers' compensation act provided the exclusive remedy to an injured employee.

On appeal, Mr. Corr contended that Willamette was a third person under RCW 51.24.030, citing the dual persona doctrine. Under that doctrine, "[a]n employer may become a third person, vulnerable to tort suit by an employee, if — and only if — he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate person." Corr, at 220-21 (quoting 2A A. Larson, Workmen's Compensation § 72.81 (1983)). Stated differently, the employee is not suing his employer, but rather the successor to the liabilities of the alleged tortfeasor. Corr, at 221. The obligation arises out of an independent business transaction, not the employment relationship. See Kimzey v. Interpace Corp., Inc., 10 Kan.App.2d 165, 694 P.2d 907 (1985); Billy v. Consolidated Mach. Tool Corp., 51 N.Y.2d 152, 412 N.E.2d 934, 432 N.Y.S.2d 879 (1980); Schweiner v. Hartford Accident & Indem. Co., 120 Wis.2d 344, 354 N.W.2d 767 (Ct. App. 1984) for cases applying the dual persona doctrine in the context of corporate mergers.

The court was not persuaded that the doctrine applied in the circumstances presented in Corr. It stated at pages 222-23:

(Citations omitted.)2

Rockwell contends that Corr's "stream of commerce" theory is applicable to the situation here. According to Rockwell, it never placed the allegedly defective equipment in the stream of commerce; thus, it never owed obligations relative to the equipment to persons other than its employees. Rockwell argues that an obligation cannot now arise simply because Westinghouse has succeeded it as the government contractor at the Hanford Project.

[1] Rockwell's comparisons ignore the fact that the plaintiff in Corr was suing his employer; Mr. DuVon is not. The reasons given in Corr for not allowing an injured worker to sue his present employer do not justify protecting former employers from actions based on torts committed after the employment relationship has ended. At least two cases from other jurisdictions support this conclusion. Konken v. Oakland Farmers' Elevator Co., 425 N.W.2d 302 (Minn. Ct. App. 1988); Hull v. Aurora Corp., 89 A.D.2d 681, 454 N.Y.S.2d 39 (1982).

In Hull, the plaintiff was injured while operating a casting machine for his employer, F&R Die Castings Co., Inc. F&R had acquired the machine and the plant from defendant Aurora Corporation in 1976. The plaintiff had been an employee of Aurora prior to the acquisition. The court upheld the denial of Aurora's motion for summary judgment, stating in 89 A.D.2d at 682:

In Konken, the plaintiff, while in the employ of Land O' Lakes, was injured by a machine installed by his former employer, Oakland Farmers' Elevators. The court refused to dismiss an action against Oakland, reasoning in 425 N.W.2d at 305:

Konken's accident did not arise out of and in the course of his employment with Oakland, i.e., there was no causal connection between Konken's injury and the previous employment relationship. "Konken could have been injured at LOLI whether or not he had been employed by Oakland." Konken, 425 N.W.2d at 305. Thus, Oakland incurred no obligation to pay workers' compensation benefits for Konken's injury. Conversely, Oakland was not entitled to the beneficial immunity from Konken's common law claims provided by the act.

Like the Minnesota statute, the Washington statute defining "employer" is cast in the present tense, suggesting former employers are not included. RCW 51.08.070. As in Minnesota, the policy of the Washington act is to provide the injured worker with relief regardless of fault in return for abolition of common law rights of action. RCW 51.04.010. If Rockwell is allowed to use the workers' compensation act as a defense, it reaps the benefit of the act without being responsible for paying workers' compensation benefits to Mr. DuVon. Finally, there exists no causal connection between Mr. DuVon's injury and his previous employment by Rockwell; he could have been injured whether or not he had been employed by Rockwell.

We hold that Corr is distinguishable on the material facts. The court properly denied Rockwell's motion for summary judgment.3

Affirmed.

MUNSON, C.J., and GREEN, J., concur.

Review granted at 115 Wn.2d 1001 (1990).