Wash. Court of Appeals published opinion — D2 43636-1-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 43636-1-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2043636-1-II%20%20Published%20Opinion.pdf ↗

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control the surety it provided under RCW 51. 14. 020( 2) to secure payment of its employees'

workers' compensation claims:

In the event of default the self insurer
- loses all right and title to, any interest in,
and any right to control the surety. The amount of surety may be increased or
decreased from time to time by the director. The income from any securities
deposited may be distributed currently to the self -insurer.

RCW 51. 14. 020( 2) ( emphasis added). Thus, under Washington' s Industrial Insurance Act, when

Dellen defaulted on its obligations as a self -insured employer, it lost all " right and title to, any
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interest in, and any right to control" its surety. RCW 51. 14. 020( 2). Dellen' s loss of its title to

the surety was not by virtue of some governmental action; on the contrary, this loss was a result

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Moreover, WAC 296- 15- 121( 9)( a) provides only that the Department " may consider"
releasing a surety to a former self -insurer, or its successor, if all claims against the self insurer
-
are closed and the self insurer
- has been released from quarterly reporting for at least ten years.
This regulation' s use of the permissive words " may" and " consider," however, imply that such
return of a surety is not mandatory and that, instead, such decision falls within the Department' s
discretion. Thus, under the plain language of this regulation, Dellen is not " entitled" to a return
of its surety.

No. 43636- 1- 11

of its election instead to default as a self -insurer under the Act and to turn over administration of

its workers' compensation benefits to the Department to pay on Dellen' s behalf from Dellen' s

surety fund.