756066MAJ
~

                    Supreme Court of the State of Washington

                            Opinion Information Sheet

Docket Number:       75606-6
Title of Case:       Donald R. Gorman, et ux., et al., v. Garlock,
                     Inc., et al. (52188-8 & 52329-5-I consold)
File Date:           08/18/2005
Oral Argument Date:  05/24/2005


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court,
            County
            Honorable Linda Lau


                                    JUSTICES
                                    --------
Authored by Gerry L Alexander
Concurring: James Johnson
            Barbara A. Madsen
            Bobbe J Bridge
            Charles W. Johnson
            Richard B. Sanders
            Susan Owens
            Tom Chambers
            Mary Fairhurst


                                COUNSEL OF RECORD
                                -----------------
Counsel for Petitioner(s)
            William Joel Rutzick
            Attorney at Law
            500 Central Bldg
            810 3rd Ave
            Seattle, WA  98104-1693

Counsel for Respondent(s)
            Robert Hopkins Madden
            Attorney at Law
            11320 Roosevelt Way NE
            Seattle, WA  98125-6228

            Walter Eugene Barton
            Attorney at Law
            1201 3rd Ave Ste 2900
            Seattle, WA  98101-3284

            William Henry Jr Beaver
            Attorney at Law
            1201 3rd Ave Ste 2900
            Seattle, WA  98101-3284


IN THE SUPREME COURT OF THE STATE OF WASHINGTON

DONALD R. GORMAN and FLAELLEN GORMAN,            )
husband and wife,                                ) No. 75606-6
                                                 )
                    Petitioners,                 )
                                                 )
     v.                                          ) En Banc
                                                 )
GARLOCK, INC., FOSTER-WHEELER ENERGY             )
CORP., UNIROYAL, INC., METROPOLITAN LIFE         )
INSURANCE CO., ASBESTOS CORPORATION,             )
LTD., COMBUSTION ENGINEERING, INC., CROWN        )
CORK & SEAL COMPANY, INC., GASKET CO.,           )
FRASER'S BOILER SERVICE, INC., RILEY STOKER      )
CORP., SABERHAGEN HOLDINGS, INC.,                )
                                                 )
                    Defendants,                  )
                                                 )
and                                              )
                                                 )
LOCKHEED SHIPBUILDING COMPANY and TODD           )
SHIPYARDS CORPORATION,                           )
                                                 )
                    Respondents.                 )
                                                 )
WILHEMINA HELTON for herself and as personal     )
representative for the estate of EDDIE HELTON, a/)/a
EDDIE HILTON, deceased,                          )
                                                 )
                    Petitioner,                  )
                                                 )
     v.                                          )
                                                 )
TODD SHIPYARD CORPORATION,                       )
                                                 )
                    Respondent,                  ) Filed August 18, 2005
                                                 )
and                                              )
                                                 )
METROPOLITAN LIFE INSURANCE CO.,                 )
ASBESTOS CORPORATION, LTD., CROWN CORK           )
& SEAL COMPANY, INC., FOSTER-WHEELER             )
ENERGY CORPORATION, FRASER'S BOILER              )
SERVICE, INC., and SABERHAGEN HOLDINGS,          )
INC.,                                            )
                                                 )
                    Defendants.                  )
                                                 )

     ALEXANDER, C.J.--Donald Gorman worked in the Washington shipyards of
Lockheed Shipbuilding Company (Lockheed) and Todd Shipyards Corporation
(Todd); Eddie Helton worked in Todd's Washington shipyards.  During this
employment, each man was allegedly exposed to asbestos.  Gorman sued
Lockheed and Todd, seeking damages for illness allegedly caused by his
exposure to asbestos.  Wilhemina Helton, widow of the late Eddie Helton,
brought a similar suit against Todd.  Lockheed and Todd together moved to
dismiss Gorman's suit and Todd moved to dismiss Mrs. Helton's suit.  Each
company claimed that such suits are barred by the exclusive liability
provision of the federal Longshore and Harbor Workers' Compensation Act
(LHWCA), 33 U.S.C. sec.sec. 901-950.  The superior court agreed with the
defendant-employer in each case and dismissed the claims.  Gorman and Mrs.
Helton separately appealed the orders of dismissal to the Court of Appeals.
The Court of Appeals consolidated the appeals and affirmed the superior
courts.  Thereafter, Gorman and Mrs. Helton sought discretionary review of
the Court of Appeals' decision.  We granted review and now affirm the Court
of Appeals.
I.
A.   Gorman v. Lockheed Shipbuilding and Todd Shipyards
Gorman was employed in various shipbuilding and ship-repair jobs at the
Washington shipyards of both Lockheed and Todd from 1960 to 1975.  Gorman
alleges that during this employment 'he was exposed to asbestos and
asbestos-containing products' and, as a result of this exposure, developed
asbestos-related illness, including lung cancer.  Gorman Clerk's Papers
(CP) at 59.  Gorman further claims that both Lockheed and Todd 'had actual
knowledge of certain injury to {him} and willfully disregarded that
knowledge.'  Id. at 60, 61.  Following his employment with Lockheed and
Todd, Gorman was employed at a number of land-based refineries where he was
allegedly also exposed to asbestos.
In January 2001, Gorman became aware of his asbestos-related illness.  He
thereafter filed suit against Lockheed and Todd in King County Superior
Court.  Gorman's suit was based on a provision of the Washington Industrial
Insurance Act (WIAA), Title 51 RCW, which allows a worker to maintain a
suit for damages against his or her employer if the worker has been injured
as a result of 'the deliberate intention of his or her employer to produce
such injury.'  RCW 51.24.020.  Lockheed and Todd together moved to dismiss
Gorman's suit pursuant to Civil Rule (CR) 12(b)(6), alleging that, because
Gorman's suit was barred by the exclusive liability provision of the LHWCA,
he had failed to state a claim for which relief could be granted.  The
superior court agreed with Lockheed and Todd and dismissed Gorman's claims
against the companies.
B.   Helton v. Todd Shipyards
Eddie Helton was employed as a 'shipscaler' at Todd's Seattle shipyard from
1944 to 1969.  Helton CP at 2.  While working at the shipyard, Mr. Helton
was allegedly 'exposed to asbestos and asbestos-containing products' and,
as a result of this exposure, he 'developed asbestos-related disease,
namely lung cancer.'  Id. at 2, 3.  It is alleged that Todd 'had actual
knowledge that an injury to shipscalers such as Mr. Helton was certain to
occur and willfully disregarded that knowledge by continuing to expose him
to asbestos fibers during his work at Todd Shipyards.'  Id. at 2.  Mr.
Helton died from lung cancer in 1999.
Wilhemina Helton1 filed suit against Todd in King County Superior Court on
her own behalf for wrongful death and on behalf of the estate of Eddie
Helton for damages surviving his death.  Helton's suit, like Gorman's, was
based on the intentional injury suit provision of the WIAA, RCW 51.24.020.
Todd moved to dismiss for failure to state a claim pursuant to CR 12(b)(6),
arguing that the LHWCA bars Helton's suit.  Thereafter, a superior court
judge ordered Helton's suit dismissed.  Helton, like Gorman, has not filed
a claim for compensation under the WIAA or the LHWCA.
C.   Consolidated Appeal
Following dismissal of their suits in superior court, Gorman and Helton
each appealed to Division One of the Court of Appeals.  After consolidating
their appeals, the Court of Appeals affirmed the orders of dismissal.  See
Gorman v. Garlock, Inc., 121 Wn. App. 530, 89 P.3d 302 (2004).  That court
held that RCW 51.12.100 bars LHWCA-covered workers from maintaining a claim
under RCW 51.24.020.  Because Gorman and Helton were covered by the LHWCA,
the court reasoned, neither they nor their survivors could maintain a claim
under RCW 51.24.020.  We granted Gorman and Helton's petition for
discretionary review.
II.
     This case involves the interaction between two workers' compensation
systems: the LHWCA and WIAA.  Gorman and Helton argue that as WIAA-covered
workers, their suits against Lockheed and Todd are shielded from the
preemptive effect of the exclusive liability provision of the LHWCA because
they are authorized by a provision of the WIAA.  We must decide, therefore,
whether Gorman and Helton were covered by the WIAA and, if they were,
whether the WIAA shields their claims from the preemptive effect of the
exclusive liability provision of the LHWCA.
     The LHWCA is a federal workers' compensation program.  It provides
relief to workers employed in certain shore- and harbor-centered maritime
occupations who suffer injury or death on the job and shields maritime
employers from tort claims by injured workers.  See 33 U.S.C. sec.sec. 902,
903, 905(a).  The LHWCA is applicable only if both workers and employers
meet certain qualifications.  Id. sec.sec. 902(3), 902(4), 903(a).
     To qualify for coverage under the LHWCA, a worker must satisfy a '2-
tiered test.'  Lindquist v. Dep't of Labor & Indus., 36 Wn. App. 646, 652,
677 P.2d 1134, review denied, 102 Wn.2d 1001 (1984).  First, the worker
must satisfy the 'Situs Test,' id. at 653; i.e., the worker must work, and
the injury must occur, at a locale to which the LHWCA's jurisdiction
extends.   33 U.S.C. sec. 903(a).  Among the locales to which the LHWCA is
expressly made applicable are any areas adjoining the 'navigable waters of
the United States . . . customarily used by an employer in . . .
repairing, dismantling, or building a vessel.'  Id.  Second, a worker must
satisfy the 'Status Test.'  Lindquist, 36 Wn. App. at 653.  To satisfy the
'Status Test,' the worker must be an 'employee' as defined in the LHWCA.
Id.  The LHWCA defines 'employee' as 'any person engaged in maritime
employment, including any . . . ship repairman, shipbuilder, and ship-
breaker.'  33 U.S.C. sec. 902(3).
     Gorman and Helton clearly satisfy the situs and status tests for LHWCA
coverage.  At the time they were allegedly injured, each man was a maritime
'employee' engaged in shipbuilding or ship-repair at sites customarily used
by their employers in repairing and building vessels.  Therefore, Gorman
and Helton are covered by the LHWCA.  Significantly, neither Gorman nor
Helton make any argument to the contrary.
     Employers are subject to the LHWCA if 'any of {their} employees are
employed in maritime employment, in whole or in part, upon the navigable
waters of the United States (including any . . . adjoining area customarily
used by an employer in . . . repairing, or building a vessel).'  33 U.S.C.
sec. 902(4).  Neither Gorman nor Helton suggest that Lockheed and Todd were
not maritime 'employers' for purposes of the LHWCA.  We believe that it is
apparent that they were maritime employers and are, therefore, subject to
the LHWCA.
     The liability of an employer subject to the LHWCA for an on-the-job
injury is limited exclusively to that provided by the act:  'The liability
of an employer prescribed {in the act} shall be exclusive and in place of
all other liability of such employer to the employee, his legal
representative, husband or wife, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such employer . . . .'
33 U.S.C. sec. 905(a) (emphasis added).  As the United States Supreme Court
observed in Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394
U.S. 404, 412, 89 S. Ct. 1144, 22 L. Ed. 2d 371 (1969), '{w}hen Congress
imposed on the employer absolute liability for compensation, it explicitly
made that liability exclusive.'  Thus, an injured LHWCA-covered worker or
his or her family or legal representative is precluded from maintaining a
suit at law against the employer.  See 33 U.S.C. sec. 905(a); Moragne v.
States Marine Lines, Inc., 398 U.S. 375, 394 n.11, 90 S. Ct. 1772, 26 L.
Ed. 2d 339 (1970); S. Chicago Coal & Dock Co. v. Bassett, 309 U.S. 251,
256, 60 S. Ct. 544, 84 L. Ed. 732 (1940) ('For those employees who are
entitled to compensation {under the LHWCA}, the remedy under the Act is
exclusive.'); Stevedoring Servs. of Am., Inc. v. Eggert, 129 Wn.2d 17, 33,
914 P.2d 737 (1996); Campbell v. Lockheed  Shipbuilding Corp., 115 Wn. App.
8, 15, 61 P.3d 1160 (2002) (33 U.S.C. sec. 905(a) 'unambiguously limit{s}
{an employer's} liability for the illness {a worker} suffers as the result
of cumulative exposure to asbestos.').
     While section 905 of the LHWCA appears to provide the exclusive means
by which an injured worker subject to the act may recover from his or her
employer, a series of United States Supreme Court decisions have had the
effect of permitting state workers' compensation programs to operate
coextensively with the LHWCA.  See, e.g., Sun Ship, Inc. v. Pennsylvania,
447 U.S. 715, 100 S. Ct. 2432, 65 L. Ed. 2d 458 (1980); Eggert, 129 Wn.2d
at 31.  In Sun Ship, the Court reaffirmed the 'accepted understanding that
federal jurisdiction . . . coexist{s} with state compensation laws' in the
provision of benefits to injured maritime workers.  Sun Ship, 447 U.S. at
722.  Thus, a state may elect to extend its workers' compensation benefits
to LHWCA-covered workers.  Where a state so elects, the state benefits are
not preempted by the exclusive liability provision of the LHWCA.
     Notwithstanding the exclusive liability provision of the LHWCA, Gorman
and Helton maintain that they may pursue their suits against Lockheed and
Todd.  They argue (1) that they are covered by the general provisions of
the WIAA, (2) the WIAA allows an employee injured by his or her employer's
deliberate, intentional act to maintain a suit against such employer, (3)
because the WIAA makes such an allowance, under the doctrine of concurrent
jurisdiction reflected in Sun Ship, their suits are not barred by the
exclusive liability provision of the LHWCA.
A.   Are Gorman and Helton covered by the general provisions of the WIAA
and thus permitted to maintain a claim under RCW 51.24.020?

     The WIAA supplants common law suits by workers against their employers
for injuries sustained on the job and generally provides the exclusive
means by which an injured worker may obtain relief for such injuries from
his or her employer.  See RCW 51.04.010.  While the WIAA is for the most
part a comprehensive and exclusive compensation system for Washington
workers injured on the job, it contains several important exceptions, two
of which are relevant in this case.
     First, RCW 51.24.020 creates a narrow exception to the WIAA's
exclusive remedy provision, allowing an employee injured as a result of his
or her employer's deliberate, intentional act, to maintain a tort action
outside of the WIAA against the employer.  This court has recognized that
RCW 51.24.020 was enacted to ensure that 'employers who deliberately
injure{} their employees {will} not enjoy the immunity from suits,' which
the WIAA provides.  Birklid v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278
(1995).  RCW 51.24.020 provides:
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.

''{D}eliberate intention,'' according to this court, 'means the employer
had actual knowledge that an injury was certain to occur and willfully
disregarded that knowledge.'  Birklid, 127 Wn.2d at 865.
     Second, the WIAA exempts from its coverage Washington workers covered
by certain federal workers' compensation statutes, including the LHWCA.
See RCW 51.12.100; Eggert, 129 Wn.2d at 34 n.5; Esparza v. Skyreach Equip.,
Inc., 103 Wn. App. 916, 937, 15 P.3d 188 (2000), review denied, 144 Wn.2d
1004 (2001).  RCW 51.12.100(1) (section 100) provides that '{t}he
provisions of this title shall not apply to a master or member of a crew of
any vessel, or to employers and workers for whom a right or obligation
exists under the maritime laws or federal employees' compensation act for
personal injuries or death of such workers.'  (Emphasis added.)  As this
court observed in Eggert, 'In Washington, provisions of RCW 51 do not apply
to employers or workers who are covered by LHWCA.'  Eggert, 129 Wn.2d at 34
n.5.  The legislature's intent in excluding LHWCA-covered workers from the
WIAA was 'to prevent double recovery by {such a} worker,' Esparza, 103 Wn.
App. at 938, and thereby 'protect the state's industrial insurance fund
when a worker is adequately covered under the LHWCA.'  E.P. Paup Co. v.
Director, Office of Workers Comp. Programs, 999 F.2d 1341, 1348 n.3 (9th
Cir. 1993) (citing Rhodes v. Dep't of Labor & Indus., 103 Wn.2d 895, 898,
700 P.2d 729 (1985)).
     However, in 1988 the legislature enacted RCW 51.12.102 (section 102),
which provides for the payment of some WIAA benefits under certain
circumstances to maritime workers 'who may have a right or claim for
benefits under the maritime laws of the United States,' i.e., the LHWCA,
who develop illness as a result of exposure to asbestos.  RCW 51.12.102(1).
Subsection (1) of section 102 directs the Department of Labor and
Industries (DLI) to 'furnish the benefits provided under this title to'
such a worker 'if (a) there are objective clinical findings to substantiate
that the worker has an asbestos-related claim for occupational disease and
(b) the worker's employment history has a prima facie indicia of injurious
exposure to asbestos fibers while employed in the state of Washington in
employment covered under this title.'  RCW 51.12.102(1).  That section
further directs DLI to 'render a decision as to the liable insurer and {to}
continue to pay benefits until the liable insurer initiates payments or
benefits are otherwise properly terminated under this title.'  Id.
     If DLI determines that an insurer outside the WIAA compensation
program is ultimately responsible for providing benefits to the injured
worker, subsection (4) of section 102 compels DLI to assist the worker in
obtaining benefits from such insurer and further dictates that if such
benefits are obtained, DLI is to pursue reimbursement for the WIAA benefits
provided.  RCW 51.12.102(4).  Furthermore, section 102 expressly provides
that once benefits are obtained from some other party, the WIAA benefits
cease: DLI is to 'continue to pay benefits until the liable insurer
initiates payments.'  RCW 51.12.102(1) (emphasis added).
1.   Does RCW 51.12.102 extend the general provisions of the WIAA to LHWCA-
covered workers?

     Gorman and Helton argue that section 102 abrogated the exclusionary
language of section 100 and brought LHWCA-covered workers within the
general provisions of the WIAA.  Therefore, they contend, as WIAA-covered
workers, they may maintain a suit under RCW 51.24.020.  Lockheed and Todd
respond that RCW 51.12.102 did not abrogate the language excluding workers
covered by the LHWCA from WIAA coverage, but merely created a narrow
exception to that exclusion, which only allows for provision of temporary,
interim benefits to maritime workers until federal benefits are obtained.
     What effect the enactment of section 102 had on section 100 is not
entirely clear.  By their plain terms, these sections are in conflict in
that section 100 completely excludes workers covered by the LHWCA from the
WIAA and section 102 extends at least some WIAA benefits to such workers.
In construing conflicting statutory language, 'the primary objective of the
court is to ascertain and carry out the intent and purpose of the
legislature in creating it.'  Fraternal Order of Eagles, Tenino Aerie No.
564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 239, 59
P.3d 655 (2002).  'Where {this court is} called upon to interpret an
ambiguous statute or conflicting provisions, {it} may arrive at the
legislature's intent by applying recognized principles of statutory
construction.'  State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003).
     Two principles of statutory construction are applicable in the instant
case.  First, 'apparently conflicting statutes must be reconciled to give
effect to each of them.'  Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d
691 (2000).  Generally, ''{s}tatutes must be interpreted and construed so
that all the language used is given effect, with no portion rendered
meaningless or superfluous.''  Davis v. Dep't of Licensing, 137 Wn.2d 957,
963, 977 P.2d 554 (1999) (quoting Stone v. Chelan County Sheriff's Dep't,
110 Wn.2d 806, 810, 756 P.2d 736 (1988)).  Second, '{t}o resolve apparent
conflicts between statutes, courts generally give preference to the more
specific and more recently enacted statute.'  Tunstall, 141 Wn.2d at 211.
Furthermore, in interpreting conflicting statutory language, a court may
ascertain legislative intent by examining the legislative history of
particular enactments.  Timberline Air Serv., Inc. v. Bell Helicopter-
Textron, Inc., 125 Wn.2d 305, 312, 884 P.2d 920 (1994).
     Gorman and Helton contend that because section 102 is the later-
enacted statute, it should be interpreted as completely abrogating the
exclusionary language of section 100.  While this contention is consistent
with the principle of statutory construction that calls for preference to
be given to later-enacted statutory language, it would violate the
principle that effect must be given to all statutory language.  See
Tunstall, 141 Wn.2d at 211.  Under Gorman and Helton's reading, subsection
(1) of section 100 would be rendered ''meaningless {and} superfluous.''
Davis, 137 Wn.2d at 963 (quoting Stone, 110 Wn.2d at 810).  On the other
hand, Lockheed and Todd's interpretation-that section 102 did not abrogate
section 100 except to the extent necessary to provide temporary, interim
benefits-is consistent with both of the aforementioned principles of
statutory construction.  First, preference is given to the later-enacted
language, as section 102 overrides section 100's total exclusion of LHWCA-
covered workers to the extent necessary to allow some benefits to be
afforded such workers under the WIAA.  Second, meaning is given to both
section 100 and section 102, as LHWCA-covered workers are not extended
general benefits under the WIAA except those limited temporary, interim
benefits specifically provided by section 102.
     Moreover, both the language of section 102 and its legislative history
belie Gorman and Helton's proffered interpretation.  As discussed above,
section 102, by its plain language, directs DLI to provide WIAA benefits to
certain workers who develop illness as a result of asbestos exposure who
may be covered by the LHWCA.  RCW 51.12.102(1).  However, if the worker is
covered by the LHWCA, these benefits are temporary only.  Id.  If DLI
determines that such a worker is covered by the LHWCA, DLI assists the
worker in obtaining LHWCA benefits; once such benefits are obtained, the
WIAA benefits cease.  RCW 51.12.102(1), (4).
     The legislative history of section 102 reflects that the legislature
was concerned that workers who could be covered by either the WIAA or the
LHWCA might for a time be trapped in jurisdictional limbo, with neither
compensation program providing relief until it is conclusively established
which program is responsible for providing benefits:
Workers who contract . . . occupational diseases frequently have work
histories indicating exposure to asbestos in several different employments.
These employments may be covered for workers' compensation purposes under
more than one jurisdiction, such as the Washington industrial insurance law
or the federal Longshore and Harbor Workers' Compensation Act.  If a
dispute arises over which jurisdiction is responsible for coverage, a
worker's claim may not be accepted by either jurisdiction until the
liability question is settled.

1987-88 Final Legislative Report, 50th Wash. Leg., at 70.
     If the legislature had intended to abrogate completely the
exclusionary language of section 100, it could have done so: the bill
creating section 102 also amended section 100.  See Laws of 1988, ch. 271,
sec. 2.  The legislature did not, however, avail itself of the opportunity
to amend the exclusionary language of section 100.  Instead, it left that
language unchanged.  This suggests that in creating section 102 the
legislature did not intend to abrogate the exclusionary language of section
100, except to the extent necessary to provide interim, temporary benefits
under section 102.
     The plain language of section 102 and its legislative history suggests
to us that the legislature intended to create a mechanism to provide
temporary, interim benefits to cover the needs of maritime workers who
develop illness as a result of exposure to asbestos until it is
conclusively determined whether the state or federal workers' compensation
program is responsible for providing benefits to such a worker.  The
legislature did not, we believe, intend to extend the whole panoply of WIAA
coverage to those workers eligible for benefits under the LHWCA.
     Because LHWCA-covered workers are not covered by the general
provisions of the WIAA, they may not maintain a suit under RCW 51.24.020.
A suit under RCW 51.24.020 is not a 'benefit' provided to WIAA-covered
workers under Washington's workers' compensation scheme.  Instead, RCW
51.24.020 allows a WIAA-covered worker, injured by his or her employer's
deliberate, intentional act, to pursue a common law tort claim against such
employer outside of the WIAA, 'as if {the WIAA} had not been enacted.'  RCW
51.24.020 (emphasis added).  Because the opportunity to maintain a suit
under RCW 51.24.020 is outside the WIAA, it is not one of the 'benefits
provided under {the WIAA}' that are afforded to those workers specified in
section 102.  Furthermore, the ability to maintain a common law tort claim
pursuant to RCW 51.24.020 is not the type of temporary, interim benefit the
legislature intended to provide LHWCA-covered workers when it created
section 102.  Maintenance of a common law claim against an employer is
neither necessary nor related to the provision of the temporary, interim
benefits created in section 102.
2.   Are Gorman and Helton hypothetically not 'workers for whom a right . .
. exists' under the LHWCA and, therefore, covered by the WIAA?

     Gorman and Helton argue in the alternative that, hypothetically, they
may not be eligible for benefits under the LHWCA because they failed to
comply with certain procedural requirements and, therefore, are not
'workers for whom a right . . . exists under {the LHWCA}.'  RCW
51.12.100(1).  Thus, they contend, the exclusionary language of RCW
51.12.100 is inapplicable to them.
     The LHWCA requires an injured worker entitled to compensation under
that act to obtain the written approval of his or her otherwise-responsible
employer before settling with a third party.  33 U.S.C. sec. 933(g)(1).  If
the worker accepts settlement without having obtained approval from his or
her employer, 'all rights to compensation and medical benefits under {the
LHWCA} shall be terminated.'  33 U.S.C. sec. 933 (g)(2).
     Gorman and Helton posit that, hypothetically, each may have entered
into a settlement agreement with a third party without having first
obtained the approval of Lockheed or Todd.  Therefore, they argue, their
'rights to compensation and medical benefits under {the LHWCA}' may have
been terminated.  33 U.S.C. sec. 933 (g)(2).  Because their rights under
the LHWCA may have been terminated, they may not be 'workers for whom a
right . . . exists under the {LHWCA}.'  RCW 51.12.100(1).  They contend
that the superior courts erred in dismissing their claims because it was
obligated to consider their proffered hypothetical scenarios.
     When entertaining a motion for dismissal for failure to state a claim
under CR 12(b)(6), a court should dismiss a claim 'only if 'it appears
beyond doubt that the plaintiff can prove no set of facts, consistent with
the complaint, which would entitle the plaintiff to relief.''  Bravo v.
Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995) (quoting Haberman v.
WPPSS, 109 Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987)).  In making
this determination, a court must consider hypothetical facts proffered by
the plaintiff:
'{A}ny hypothetical situation conceivably raised by the complaint defeats a
CR 12(b)(6) motion if it is legally sufficient to support plaintiff's
claim.'  Hypothetical facts may be introduced to assist the court in
establishing the 'conceptual backdrop' against which the challenge to the
legal sufficiency of the claim is considered.
     . . . in determining whether such facts exist, a court may consider a
hypothetical situation asserted by the complaining party, not part of the
formal record, including facts alleged for the first time on appellate
review of a dismissal under the rule.

Id. (quoting Halvorson v. Dahl, 89 Wn.2d 673, 674, 574 P.2d 1190 (1978)).
     While a court must consider any hypothetical facts when entertaining a
motion to dismiss for failure to state a claim, the gravamen of a court's
inquiry is whether the plaintiff's claim is legally sufficient.  As this
court stated in Bravo, a proffered hypothetical will ''defeat{} a CR
12(b)(6) motion if it is legally sufficient to support plaintiff's claim.''
Bravo, 125 Wn.2d 750 (quoting Halvorson, 89 Wn.2d at 674) (emphasis added).
If a plaintiff's claim remains legally insufficient even under his or her
proffered hypothetical facts, dismissal pursuant to CR 12(b)(6) is
appropriate.
     Here, even assuming as true Gorman and Helton's proffered hypothetical
facts, their claims are still legally insufficient.  The plain language of
section 100 reflects the legislature's intent to exclude from the coverage
of the WIAA the entire class of workers covered by the LHWCA.  Section 100
provides that the provisions of the WIAA 'shall not apply . . . to
employers and workers for whom a right or obligation exists under the
maritime laws.'  RCW 51.12.100(1) (emphasis added).  Thus, any individual
employer or worker within the class of employers and workers subject to the
LHWCA is excluded from the WIAA, regardless of whether they have
relinquished their opportunity to exercise their rights under the act by
failing to comply with the act's technical requirements.  Further, as the
Court of Appeals observed in Lindquist, whether a worker is covered by the
LHWCA, and is therefore within the class of workers afforded rights under
the act, is determined by application of the '2-tiered test' of the
workers' 'situs' and 'status.'  Lindquist, 36 Wn. App. at 652-54.  Whether
or not the worker satisfies this test depends on the worker's situs and
status at the time of injury.  Id. at 655.
     As discussed above, because at the time they were exposed to the
asbestos that allegedly caused their injury they were maritime workers
working for a maritime employer in a maritime setting, both Gorman and
Helton were covered by the LHWCA.  Thus, Gorman and Helton are within the
class of 'workers for whom a right . . . exists under the maritime laws'
for purposes of section 100.  Even if Gorman and Helton have given up their
opportunity to exercise the individual rights to which they were entitled
as maritime workers under the LHWCA, they remain in the class of workers
who are eligible for such rights.  Therefore, the exclusionary language of
section 100 is applicable to Gorman and Helton.  The superior courts did
not, therefore, err in dismissing Gorman and Mrs. Helton's claims based on
their failure to accept Gorman and Helton's proffered hypothetical.
3.   Are Gorman and Helton covered by the WIAA under the 'last injurious
exposure rule'?

     Gorman and Helton argue, additionally, that they may be covered by the
WIAA under the 'last injurious exposure rule,' notwithstanding the
exclusionary language of RCW 51.12.100.  Under the last injurious exposure
rule 'the last 'insurer covering the risk during the most recent exposure
bearing a causal relationship to the disability' is liable for the entire
amount of the workers' compensation award.'  Dep't of Labor & Indus. v.
Fankhauser, 121 Wn.2d 304, 310, 849 P.2d 1209 (1993) (quoting Weyerhaeuser
Co. v. Tri, 117 Wn.2d 128, 130, 814 P.2d 629 (1991)).  This rule has been
codified administratively by DLI.  See WAC 296-14-350.  WAC 296-14-350(1)
provides that '{t}he liable insurer in occupational disease cases is the
insurer on risk at the time of the last injurious exposure to the injurious
substance or hazard of disease during employment within the coverage of
Title 51 RCW which gave rise to the claim for compensation.'  However, WAC
296-14-350(1) provides an exception to the last injurious exposure rule for
workers who have secured benefits pursuant to the LHWCA: 'Such Title 51 RCW
insurer shall not be liable, however, if the worker has a claim arising
from the occupational disease that is allowed for benefits under the
maritime laws or Federal Employees' Compensation Act.'
     Gorman and Helton posit that they were, or hypothetically may have
been, exposed to asbestos while employed by a land-based, WIAA-covered
employer after their employment with Lockheed and Todd.  (In fact, the
record reflects that subsequent to his employment with Lockheed and Todd,
Gorman was exposed to asbestos while working for a land-based, WIAA-covered
employer.)  Because this exposure during land-based employment constituted
their last injurious exposure to asbestos, they argue, they are covered by
the WIAA.  And because their LHWCA claims have not been 'allowed for
benefits,' WAC 296-14-350(1), the LHWCA exception to the last injurious
exposure does not apply.
     The last injurious exposure rule has been adopted by this court and
codified by DLI as a mechanism to determine which insurer under the WIAA is
responsible for funding the benefits provided to a WIAA-covered worker who
has sustained an on-the-job injury.  See Fankhauser, 121 Wn.2d at 311
(recognizing that the last injurious exposure rule is, in part, 'a rule for
assignment of responsibility').  The rule is addressed to the question of
which WIAA insurer is responsible for providing benefits to a WIAA-covered
worker.  It does not address whether an injured worker is covered by the
WIAA.  Thus, the last injurious exposure rule cannot overcome the
exclusionary language of section 100.  Because the exclusionary language of
section 100 bars a LHWCA-covered worker from the provisions of the WIAA,
except to the extent necessary to provide the temporary, interim benefits
established in section 102, an LHWCA-covered worker is excluded from the
general provisions of the WIAA, even if his or her last injurious exposure
occurred while working for a WIAA-covered employer.
     Likewise, the exception to the last injurious exposure rule codified
at WAC 296-14-350 is not availing to Gorman and Helton to bring them under
the coverage of the WIAA.  This provision simply reiterates what RCW
51.12.100 and .102 establish: that LHWCA-covered workers are excluded from
coverage under the WIAA, except to the extent necessary to provide
temporary, interim benefits, and WIAA-covered insurers are not liable under
the WIAA for such workers' injuries.
     For an LHWCA-covered worker who develops illness as a result of on-the-
job exposure to asbestos, at least some of which occurred during LHWCA-
covered employment, a federal version of the last injurious exposure rule
operates to make the last LHWCA-covered employer responsible for all
benefits provided to such worker under the LHWCA.  See Todd Shipyards Corp.
v. Black, 717 F.2d 1280, 1292 (9th Cir. 1983).  In Black, the Ninth Circuit
stated that 'the last employer covered by the {LHWCA} is wholly liable even
though an industrial injury or disease is caused in part by a subsequent
employer who is not subject to the Act.'  Id.  Thus, where a Washington
worker is exposed to asbestos while employed as a maritime worker in a
maritime setting by a LHWCA-covered employer and, later, is exposed to
asbestos while working for a land-based, WIAA-covered employer, the LHWCA-
covered employer is liable under the LHWCA for all compensation provided to
the worker under that act.  Such a worker is within the class of 'workers
for whom a right . . . exists under the maritime laws,' RCW 51.12.100(1)
and is, therefore, barred from the WIAA, except to the limited extent
provided by section 102.  He or she is, therefore, excluded from the
general provisions of the WIAA.
B.
     Because we hold that Gorman and Helton, as LHWCA-covered workers, are
not covered by the general provision of the WIAA and, therefore, may not
maintain a suit under RCW 51.24.020, we need not decide whether the WIAA
shields their claims from the preemptive effect of the exclusive liability
provision of the LHWCA.
III.  Conclusion
     The WIAA completely excludes LHWCA-covered workers from its
provisions, except to the extent necessary to provide temporary, interim
benefits as established in RCW 51.12.102.  Because Gorman and Helton are
LHWCA-covered workers, they are excluded from the general provisions of the
WIAA, including the intentional injury suit provision, RCW 51.24.020.  The
superior courts did not err in dismissing their claims for failure to state
a claim.  We, therefore, affirm the Court of Appeals.

WE CONCUR:

1As Eddie Helton's widow, Wilhemina Helton stands in the shoes of Eddie
Helton for purposes of her suit against Todd.  For simplicity, unless
otherwise specified, Wilhemina Helton and Eddie Helton's estate will
hereafter be referred to as 'Helton.'
>>