No. 40035-9-II.The Court of Appeals of Washington, Division Two.
Filed: November 24, 2010. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 09-2-08018-1, Susan Serko, J., entered October 30, 2009.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Van Deren, JJ.
HUNT, J.
Roy Billings appeals the trial court’s grant of summary judgment to his former employer, Energy Exteriors, LLC, in his action for injuries suffered when a fellow employee, Tele Togiai, assaulted him at work. Billings argued that the trial court erred in ruling that the Industrial Appeals Act, chapter 51.04 RCW, bars his lawsuit. We affirm.
facts
On April 18, 2007, Billings and Togiai were both working at Energy Exteriors. Billings complained to his manager that Togiai had verbally abused and threatened him, but Energy Exteriors took no action against Togiai. According to Billings, after learning that he had met with their manager, Togiai called Billings a “punk snitch,” struck Billings repeatedly with his fists, and fled from Energy Exteriors. Clerk’s Papers at 4. Billings filed a claim with the Department of Labor and Industries for the injuries he received during Togiai’s assault. The Department accepted and paid Billings’ claim.
Billings sued Energy Exteriors and Togiai[1] in superior court, asserting that Togiai had assaulted him, that Energy Exteriors was vicariously liable for Togiai’s assault under the doctrine of respondeat superior, and that Energy Exteriors was negligent in failing to protect him from Togiai. Energy Exteriors moved for summary judgment, arguing that the Industrial Insurance Act (“IIA”), RCW 51.04.010, barred Billings’ complaint. Although Billings filed a responsive memorandum, he did not file any declarations or other evidence to defeat Energy Exteriors’ motion. The trial court granted summary judgment to Energy Exteriors because Billings had already received compensation for his injuries under the IIA, the exclusive remedy for workplace injuries. Billings appeals.[2]
ANALYSIS
Billings argues that the trial court erred in granting summary judgment to Energy Exteriors based on his already having received workmen’s compensation under the IIA. We disagree.
RCW 51.04.010 bars employees’ complaints against employers for injuries suffered in the workplace. Vallandigham v. Clover Park Sch. Dist., 154 Wn.2d 16, 26, 109 P.3d 805 (2005). The Industrial Insurance Act (IIA) provides an exclusive remedy for workers injured in the course of employment; thus, a workers’ compensation beneficiary has no separate remedies against his employer for his or her workplace injuries except where the IIA specifically authorizes a cause of action. RCW 51.04.010; Cena v. State, 121 Wn. App. 352, 356, 88 P.3d 432 (2004), review denied, 153 Wn.2d 1009 (2005). Billings’ injuries do not fall within the limited exception to this bar.
RCW 51.24.020 permits the employee to sue the employer for injuries that result “from the deliberate intention of his or her employer to produce such injury” where the employer “willfully disregarded” “actual knowledge
that an injury was certain to occur.” Birklid v. Boeing Co., 127 Wn.2d 853, 859 n. 6, 865, 904 P.2d 278 (1995) (emphasis added). Under this strict standard, not even gross negligence satisfies the requirement of “deliberate intention” by an employer to injure an employee. Vallandigham, 154 Wn.2d at 27; Birklid, 127 Wn.2d at 860-61. Billings fails to meet this standard to bring his claim within the exception to the general rule barring his claim for workplace injuries because he presented no evidence that Energy Exteriors had actual knowledge that Togiai would assault him or that Energy Exteriors willfully disregarded such knowledge.
Billings also suggests that Togiai acted an agent of Energy Exteriors such that Energy Exteriors “deliberately intended” to assault him. Birklid, 127 Wn.2d at 861-62. This argument also fails. An employer is responsible for an employee’s actions only when the employee “acts within the scope of his or her employment in furtherance of the [employer’s] business.” Keuhn v. White, 24 Wn. App. 274, 277, 600 P.2d 679 (1979). Thus, an employer is not liable when an employee commits an assault to “effect a purpose of his or her own.” Thompson v. Everett Clinic, 71 Wn. App. 548, 551, 860 P.2d 1054 (1993), review denied, 123 Wn.2d 1027 (1994). Billings did not present any evidence that in assaulting him, Togiai was acting in the scope of his employment or in furtherance of Energy Exteriors’ business. Thus, Billings did not present evidence that Togiai was an agent of Energy Exteriors such that Energy Exteriors could be held liable for Togiai’s assault.
Holding therefore, that the trial court did not err in granting summary judgment to Energy Exteriors, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, PJ. and VAN DEREN, J., concur.