Doty v. Town of South Prairie: Industrial Insurance and the Volunteer Conundrum

• November 1, 2005

Reprinted with permission of the King County Bar Association
By Gene Barton

When Jill Doty, a volunteer fire fighter for the Town of South Prairie,  was injured while responding to a call, she sued the town for  negligence. The trial court dismissed her suit, holding that the employer  immunity provision of Washington’s Industrial Insurance Act  (IIA) barred the action. The Court of Appeals reversed¹ and, on October 6, a unanimous Supreme Court affirmed.²

The decision raises an obvious dilemma for municipalities and, in  particular, nonprofit organizations that depend upon the services of  cadres of volunteers. As the court held, volunteers are not covered by  the IIA; therefore, the municipalities and entities they serve are not  required to provide them with comprehensive workers’ compensation  coverage. At the same time, however, there is no employer immunity to  shield a city or charitable organization from a lawsuit by an injured  volunteer.

The statute at the heart of the court’s decision is RCW ¤ 51.12.035. It  was one of two amendments to the IIA in 1971.³ In adopting RCW ¤  51.12.035, “the legislature recognized a distinction between  employments and volunteer positions,” according to the Supreme  Court. The amendment required state “[v]olunteers” to be “deemed  employees and/or work[ers]” but only “for all purposes relating to  medical aid benefits.”⁴

Another amendment in 1975, the court noted, further expanded the statute “to permissively include, at the supervising entity’s discretion,  volunteers of any ‘unit of local government’ or ‘nonprofit charitable  organization’ again, ‘for all purposes relating to medical aid benefits’  under the IIA.”⁵

The court delved into the statutory definitions of such terms as  “employee,” “worker” and “employment” to discern legislative intent. In  the end, it found the IIA unambiguous on the question of whether  volunteers were covered under the act outside the scope of RCW ¤  51.12.035.

In so finding, the court looked to RCW ¤ 51.12.035(2). It stated: “The IIA allowance that ‘volunteers may be deemed employees and/or workers’  for purposes relating to medical aid benefits under chapter 51.36  RCW, strongly implicates that outside section .035, volunteers are not  ‘employees and/or workers’ under the IIA.”⁶

The court relied on a Board of Industrial Insurance Appeals (BIIA)  decision⁷ and a Division Three case⁸ in reaching its conclusion. It  noted that the BIIA had “squarely rejected the argument” made by  South Prairie, i.e., “that all ‘volunteers’ are covered by the Act and that  the only ‘volunteers’ who are partially excluded from coverage are those who are volunteers for state agencies who, by virtue of RCW  51.12.035, are entitled only to medical aid benefits under the Act.”⁹

We cannot agree with this argument, because the premise on which it  is based, namely, that volunteers or gratuitous workers are the same  as employees for mandatory coverage purposes, is wrong. . . .  [V]olunteers are not employees inasmuch as the very basis of the employee-employer relationship is the performance of service in return  for some kind of remuneration therefor, whereas volunteers by  definition are rendering service for which remuneration is not received  or expected to be received.¹⁰

The BIIA noted — as quoted by the court — that the Legislature adopted RCW ¤ 51.12.035 in 1971 “in recognition of the obvious fact that no  volunteers are covered by the normal ‘employment’ criterion.” “It was  necessary” under the amendment, the board continued, “that they be  ‘deemed’ employees, since otherwise under normal legal principles  they do not have employee status.” The Supreme Court found “the  BIIA’s interpretation of the IIA, with respect to volunteers and the effect  of RCW 51.12.035, is a sound reading that gives effect to the plain  language of the section in the context of the IIA.” In Wissink, the Court of  Appeals set out a four-part test for determining whether a person is  a “volunteer” for purposes of receiving medical aid benefits under RCW ¤ 51.12.035(2). The court held that a volunteer “is a person who  (1) performs assigned or authorized duties for the local government or  nonprofit organization (2) by his or her own free choice (3) without pay  and (4) is registered as a volunteer.”¹¹

The Supreme Court in Doty found that Wissink “reflects the IIA’s codification of a distinction, in Washington, between ‘employees and/or  workers’ and ‘volunteers’”12 and “reinforces that generally,  volunteers are not provided comprehensive coverage under the IIA.”

The court concluded:

The very existence of RCW 51.12.035 presupposes the notion that absent such a provision, volunteers would be entitled to no IIA benefits. . . . Coverage [for volunteers] is not comprehensive, and [employer]  immunity from liability does not attach. As such, we hold, based on the plain language of the applicable statutes, that, generally, the IIA does  not provide coverage to volunteers, and the “employers” of such  volunteers are not entitled to immunity from civil suit.¹³

Gene Barton is the editor of the Bar Bulletin. He is a commercial litigator and appellate attorney with Karr Tuttle Campbell in Seattle. He may be reached at 206-224-8030 or moc.elttutrraknull@notrabg.

1 122Wn. App. 333, 93 P.3d 956 (2004).
2 Doty v. Town of South Prairie, No. 75824-7 (Oct. 6, 2005).
3 Laws of 1971, ch. 20, ¤ 1.
4 See id.; RCW ¤ 51.12.035(1).
5 Laws of 1975, 1st Ex. Sess., ch. 79, ¤ 1, codified at RCW ¤ 51.12.035(2).
6 Quoting RCW ¤ 51.12.035(2).
7 In re Ronald D. Meyer, No. 42,576, 1975 WA Wrk. Comp. LEXIS 4 (Bd. Indus.Ins. Appeals Oct. 10, 1975). Meyer involved an injured  police informant and whether he was entitled to comprehensive  coverage under the act.
8 In reWissink, 118Wn. App. 870 (2003).Wissink was injured while volunteering as an inmate worker in the Stevens County jail. The  question there was whether he qualified for medical aid benefits as a  volunteer under RCW ¤ 51.12.035(2).
9 Quoting Meyer. It should be noted that Meyer apparently was decided before the effective date of the 1975 amendment that added RCW ¤  51.12.035(2).
10 Quoting Meyer.
11 118Wn. App. at 877.
12 Comparing RCW ¤¤ 51.08.180–.195 with RCW ¤¤ 51.12.035,  .140 and .170.
13 The remainder of the court’s decision is devoted to the specific status of volunteer fire fighters given the express reference in RCW ¤ 51.12.035(2) excepting volunteer fire fighters covered by the volunteer fire fighters’ and reserve officers’ relief and pensions act (VFFA), RCW ch. 41.24.