THE IMPACT OF THE TORT REFORM ACT UPON THE INDUSTRIAL INSURANCE ACT

I. INTRODUCTION

A relatively obscure section of what is commonly called the Tort Reform Act of 1986 has a disproportionate impact upon the Industrial Insurance Act (Act).’ This section, found in 1986 Wash- ington Laws Chapter 305, § 403, adds to RCW § 51.24.060(1) a new subsection (f) which provides as follows:

If the employer or co-employee are determined under section 401 of this 1986 Act to be at fault, (c) and (e) of this subsection do not apply and benefits shall be paid by the department and/or self-insurer to or on be- half of the worker or beneficiary as though no recovery had been made from a third person.

Referenced subsections (c) and (e)2 comprise the heart of the Act’s third party concept, the protection of the industrial insurance funds through reimbursement and set-off from third party recoveries. In one stroke, section 403 changes the purpose underlying the Industrial Insurance Act’s third party chapter 3 from an alter- native remedy for the benefit of the industrial insurance funds to an additional personal injury damage recompense remedy for the exclusive benefit of injured workers, their families, and dependents. . .

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Charles R. Bush, The Impact of Tort Reform Act Upon the Industrial Insurance Act, 22 Gonz. L. Rev. 121 (1986-87).

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