dissenting.
The majority affirms the summary judgment, precluding the plaintiffs from going forward with their tort suit, for two reasons. First, the majority holds that a different state’s determination that the plaintiff workers were injured during their employment prevents an Idaho court from ruling otherwise. Second, the majority points to the “going and coming” rule as clear proof that the plaintiffs were in fact and without doubt injured during their employment, and are therefore precluded from bringing a tort action in Idaho against their employer to recover for their injuries.
A proper examination of the issues, however, would convince the Court to send the case back for trial, because genuine issues of material fact remain, prohibiting summary judgment. To begin with, the law does not prevent pursuing successive workers’ compensation awards. A case cited by the majority holds just that, and a provision of Idaho’s workers’ compensation laws provides for it. See Thomas v. Washington Gas Light Co., 448 U.S. 261, 100 S.Ct. 2647, 65 L.Ed.2d 757 (1980); I.C. § 72-218.
Given the above, it follows that the plaintiffs should have been able to bring a workers’ compensation action against their employer in Idaho, even after successfully bringing their Washington workers’ compensation case. Indeed, the court explicitly relies upon its belief that the plaintiffs could have brought an Idaho workers’ compensation claim when all in the same breath the Court precludes this tort action from going to trial: “Under I.C. § 72-211, workers’ compensation is the only remedy available to a person injured in the course of his employment.” At 338, 806 P.2d at 431. The majority must be assuming that Idaho’s workers’ compensation laws do apply, on the questionable ground that Washington’s workers’ compensation law was applied by a Washington tribunal.
If the Idaho workers’ compensation law were applicable, I would agree with the majority that the summary judgment should be affirmed. However, what the majority fails to acknowledge is that another state’s determination that their workers’ compensation law applies to an injury does not preclude some other state from finding that its workers’ compensation law does not apply. Washington did not apply Idaho law in concluding that the plaintiffs were covered by Washington workers’ compensation. In determining whether Idaho workers’ compensation should apply, Idaho courts are not bound to consider the decision of a Washington tribunal, applying Washington law.
A proper resolution of the issues presented by this case would begin with a review of Idaho workers’ compensation law. The injury occurred in Washington, not Idaho. When an injury occurs outside of the state, the injured employee is eligible for Idaho workers’ compensation benefits if and only if I.C. § 72-217 is satisfied. That provision provides for “extraterritorial coverage” in certain instances:
72-217. Extraterritorial coverage.— If an employee, while working outside the territorial limits of this state, suffers an injury or an occupational disease on account of which he, or in the event of *340death, his dependents, would have been entitled to the benefits provided by this law had such occurred within this state, such employee, or, in the event of his death resulting from such injury or disease, his dependents, shall be entitled to the benefits provided by this law, provided that at the time of the accident causing such injury, or at the time of manifestation of such disease:
(1) His employment is principally localized in this state; or
(2) He is working under a contract of hire made in this state in employment not principally localized in any state; or
(3) He is working under a contract of hire made in this state in employment principally localized in another state, the workmen’s compensation law of which is not applicable to his employer; or
(4) He is working under a contract of hire made in this state for employment outside the United States and Canada.
There is a colorable claim that this injury is not covered by I.C. § 72-217, and is therefore not compensable under the Idaho workers’ compensation laws. If that is so, then the plaintiffs are not precluded from bringing a tort action in Idaho against their employer, and further proceedings are (at least) required to determine whether the plaintiffs are in fact considered uninsured by Idaho workers’ compensation law.
To be covered for an extraterritorial injury, the worker’s claim under I.C. § 72-217 must fit within one of four categories. If it does not, the worker is no longer a claimant and must find redress in a form and forum other than the Idaho Workers’ Compensation Act. It appears that I.C. § 72-217(3) is appropriate to this controversy: A claimant is covered for an extraterritorial injury whenever “[h]e is working under a contract of hire made in this state in employment principally localized in another state, the workmen’s compensation law of which is not applicable to his employer____” It also appears that there is a triable issue of fact as to whether I.C. § 72-217, which must be satisfied for a tort action to be precluded, has indeed been satisfied. As the majority points out, the employees were compensated under Washington workers’ compensation in part because the employer paid for that insurance and was therefore satisfied that his employees receive recompense pursuant to Washington law. Obviously, the employer in this case had not entered into an I.C. § 72-221 agreement with his employees, providing Idaho coverage for out of state injuries. Given that additional fact, and the fact that the majority does not even mention I.C. § 72-217, this case is not appropriate for summary judgment dismissal.
The majority assumes that the issue whether Idaho workers’ compensation law applies has already been decided. The majority opinion correctly points out that there is something known as the going and coming rule, and that this rule is applicable to this controversy. However, it would be applicable only if the requirements for workers’ compensation jurisdiction had been met and were obvious. Given that the injury occurred in another state, that jurisdictional question must be answered by satisfying I.C. § 72-217. No amount of going or coming will change that fact.