Edward P. Leren, Resp v. Kaiser Gypsum Company, Inc., App

FILED
5/28/2019
Court of Appeals
Division |
State of Washington
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
EDWARD P. LEREN, as Executor of
the Estate of Marvin A. Leren,
No. 77870-6-I
Respondent,
Vv.
et al,
Defendants.
ELEMENTIS CHEMICALS, INC., PUBLISHED OPINION
Appellant.
)
)
)
)
)
KAISER GYPSUM COMPANY, INC., _ )
)
)
)
)
) FILED: May 28, 2019
)
VERELLEN, J. — We are asked to resolve whether the product line doctrine
of successor liability applies to a distributor of raw asbestos where the acquired
distributor faces strict liability under section 402A of the Restatement (Second) of
Torts. We conclude the product line doctrine applies.
The purpose of the product line doctrine is to afford a product liability victim
with a meaningful remedy when a successor business entity acquires the assets of
a predecessor, leaving a mere corporate shell. Although stock purchasers are
generally not responsible for the conduct of the companies in which they invest, if
a business entity buys 100 percent of a corporation’s stock in a single transaction
and promptly begins the process of dissolving the corporation, thereby acquiring
No. 77870-6-1/2
the predecessor’s assets, then a court may look past the form of the combined
stock purchase and dissolution to recognize the substance of an asset acquisition.
And if, after acquiring the assets, the purchaser avails itself of the goodwill
associated with the distributor's sales of unreasonably dangerous materials by
holding itself out as a continuation of the acquired distributor, then the purpose,
policy, and logic of the product line doctrine applies.
Additionally, the limitations period in RCW 23B.14.340 regarding claims
against dissolved corporations and their shareholders does not apply to defeat the
product line doctrine of successor liability.
A jury award of noneconomic damages is sustainable under the wrongful
death and survivor statutes where the required beneficiary under RCW 4.20.020 is
an adult child with compelling bonds of affinity that survived the stepparent’s
divorce.
Finally, the court properly declined to give a superseding cause instruction
because the requesting party failed to show the decedent's employer had actual,
specific knowledge of the harm from prolonged asbestos exposure.
Therefore, we affirm.
FACTS
Marvin Leren graduated from Ballard High School in 1961 and went to work
for the Z-Brick Company the following year. Leren worked at Z-Brick until 1981.
Z-Brick made thin, decorative bricks. Benson Chemical Corporation supplied
2-Brick with raw asbestos used to make the bricks. Leren poured 100-pound
No. 77870-6-1/3
sacks of raw asbestos into large hoppers used to mix ingredients for the bricks.
Pouring asbestos produced huge clouds of asbestos dust. After the bricks
hardened, Leren cut them with a power saw, producing more dust. Generally,
Z-Brick was “a mess” with “powder on the floor” and “particles floating in the air.”
Leren never wore a mask or any other protective gear.
In 1969, Leren met and began dating fellow Z-Brick employee Gretha
Zylstra. He soon met Zylstra’s three-year-old daughter Jo because she
accompanied Zylstra and Leren on their first date. Leren and Zylstra married in
1974. They divorced amicably in 1985.
During the springtime of 2015, Leren felt short of breath and began losing
energy. In late September or early October of that year, he had a lung biopsy and
began feeling “immense pain.” Soon after, he was diagnosed with the rare
myloxoid variant of mesothelioma and began chemotherapy. Leren was admitted
to the hospital after having a bad reaction to his first round of chemotherapy. He
never left. Doctors placed him on palliative care. Leren made out a will on
November 10, naming his brother Edward as administrator of his estate (the
Estate), providing a monetary bequest to Jo. He filed a complaint seeking
damages for negligence and product liability on November 19. He died on
November 24, 2015.
‘ Report of Proceedings (RP) (Oct. 24, 2017) at 611.
2 RP (Oct. 19, 2017) at 302-03.
No. 77870-6-1/4
The Estate maintained the lawsuit. Over the next 10 months, the Estate
added a claim for wrongful death and added Elementis as a defendant. In the late
1970s, Harrisons & Crosfield (Pacific), Inc. (HCP) acquired 100 percent of
Benson's stock and dissolved Benson as an independent company. Elementis is
the undisputed successor to HCP.
Elementis was the sole defendant at trial. Based on the jury’s special
verdict and its own findings of fact, the court relied on the product line doctrine and
entered judgment in favor of the Estate.
Elementis appeals.
ANALYSIS
|. Corporate Successor Liability
Leren alleged personal injuries from mesothelioma caused by frequent
asbestos exposure. Because these exposures occurred prior to enactment of the
Washington Product Liability Act,? we evaluate potential liability using common law
principles embodied in the Restatement (Second) of Torts.4 Under section 402A
of the Restatement, strict liability may be imposed on any party involved in
distributing an unreasonably dangerous product.® It is undisputed that asbestos is
unreasonably dangerous and that Benson distributed the raw asbestos that
3 Ch. 7.72 RCW.
4 Simonetta v. Viad Corp., 165 Wash. 2d 341, 348, 354, 197 P.3d 127 (2008).
5 Id. at 354-55 (citing Seattle-First Nat. Bank v. Tabert, 86 Wash. 2d 145,
148-49, 542 P.2d 774 (1975); Restatement (Second) of Torts § 402A cmt. f
(1965)).
No. 77870-6-1/5
caused Leren’s mesothelioma. The question is whether Elementis is liable for
those sales based upon HCP’s acquisition of Benson’s assets.
Elementis argues it cannot be liable for Leren’s injuries because HCP was a
mere investor who acquired Benson’s assets by automatic transfer upon
dissolution rather than by purchase. The trial court disagreed. We review
conclusions of law de novo.®
Generally, a successor corporation is not responsible for its predecessor’s
liabilities simply because it acquired the predecessor's assets.’ But case law
provides well-established exceptions.’ In product liability cases, successor liability
arises where one corporation benefits from another’s goodwill after acquiring its
product line. Washington adopted the product line doctrine of corporate
successor liability for the “essential purpose” of
afford[ing] a products liability claimant an opportunity to bring an
action against the successor corporation when his or her rights
against the predecessor corporation have been essentially
extinguished either de jure, through dissolution of the predecessor,
6 Blackburn v. State, 186 Wash. 2d 250, 256, 375 P.3d 1076 (2016).
” Cambridge Townhomes, LLC v. Pac. Star Roofing, Inc., 166 Wash. 2d 475,
481-82, 209 P.3d 863 (2009) (citing Hall v. Armstrong Cork, Inc., 103 Wash. 2d 258,
261-62, 692 P.2d 787 (1984)).
8 Exceptions include where “(1) the purchaser expressly or impliedly agrees
to assume liability; (2) the purchase is a de facto merger or consolidation; (3) the
purchaser is a mere continuation of the seller; or (4) the transfer of assets is for
the fraudulent purpose of escaping liability.” Martin v. Abbott Labs., 102 Wash. 2d
581, 609, 689 P.2d 368 (1984). These four exceptions are not at issue here.
° Hall, 103 Wash. 2d at 261-63; Martin, 102 Wash. 2d at 609.
No. 77870-6-1/6
or de facto, through sale of all or substantially all of the assets of the
predecessor. !10]
We consider the following questions to decide whether the product line
doctrine applies: (1) did the successor acquire substantially all the predecessor's
assets, leaving no more than a mere corporate shell, (2) did the successor hold
itself out to the general public as a continuation of the predecessor by producing
the same product line under a similar name, (3) did the successor benefit from the
goodwill of the predecessor?"
Product line successor liability requires an asset transfer from predecessor
to successor, though the transfer need not be a direct sale.'* Our Supreme Court
adopted the product line doctrine to protect “otherwise defenseless victims” by
ensuring they can seek “meaningful remed[ies]” while simultaneously protecting
corporations from unexpected liability by requiring “a causal connection between
the successor’s acquisition and the unavailability of the predecessor.”'? Reflecting
this balance, a court should consider two issues when determining if these policy
10 Hall, 103 Wash. 2d at 264.
"' Id. at 262-63 (quoting Martin, 102 Wash. 2d at 614); Fox v. Sunmaster
Prods., Inc., 63 Wash. App. 561, 570-71, 821 P.2d 502 (1991).
‘2 See Eagle Pac. Ins. Co. v. Christensen Motor Yacht Corp., 135 Wash. 2d
894, 901, 959 P.2d 1052 (1998) (Successor “[lIiability may be imposed regardless
of the exact form of [the] transfer of assets between the corporations.”) (citing
Stoumbos v. Kilimnik, 988 F.2d 949, 961 (9th Cir. 1993) (citing Martin, 102 Wash. 2d
at 609)); see also Hall, 103 Wash. 2d at 264 (“The policy justifications for our
adoption of the product line [doctrine] require the transfer of substantially all of the
predecessor's assets to the successor corporation as a prerequisite to imposing
liability on the successor.”) (emphasis added).
13 Hall, 103 Wash. 2d at 264-65.
No. 77870-6-1/7
concerns are present: first, whether an asset transfer of any kind occurred
between an alleged predecessor and its alleged successor, and second, whether
the successor corporation by its acquisition actually “played some role in curtailing
or destroying the claimants’ remedies.”'* These questions turn on the substance
of an asset transfer rather than its form.
Typically, when a plaintiff seeks to hold a successor strictly liable through
the product line doctrine, a successor holds itself out as a continuation of the
predecessor by continuing to manufacture and sell the predecessor’s product
line.® A manufacturer's goodwill is often associated with its specifically branded
product lines. But section 402A allows strict liability for all sellers of unreasonably
dangerous products, including distributors.'* The goodwill for a distributor of raw
materials is associated with the distributor's customer relationships and reputation
for quality service, quality materials, reliability, and competitive pricing.1? Thus, the
goodwill transfer contemplated in the product line doctrine is “not that associated
with individual products,” but rather “that associated with the predecessor business
entity.”'® Where a successor distributor acquires a predecessor's goodwill, holds
itself out as akin to the predecessor by continuing to distribute similar
‘4 Hall, 103 Wash. 2d at 264, 265-66.
15 See, e.g., Martin, 102 Wash. 2d at 609-12.
'6 Simonetta, 165 Wash. 2d at 354-55.
'7 RP (Oct. 24, 2017) at 696-98, 739.
18 Hall, 103 Wash. 2d at 267.
No. 77870-6-1/8
unreasonably dangerous products, and realizes benefits from those distributions,
then the product line doctrine applies.
Elementis argues, though, that the product line doctrine is limited to
manufacturers who produce unreasonably dangerous products because they can
spread the cost of those products across their customer base. We disagree.
Consistent with the principles discussed above, California has held for over
30 years that a distributor of unreasonably dangerous goods may be strictly liable
under the product line doctrine for its predecessor’s conduct. In Kaminski v.
Western MacArthur Company,'® a former welder’s assistant suffering from
mesothelioma sued the successor of the distributor that sold asbestos products to
his employer.
In 1967, the predecessor asbestos distributor, Western Asbestos Company,
was struggling. It made an agreement with the MacArthur Company to turn over
all operational control in exchange for a large loan of operating capital.29 Western
viewed the investment as a prelude to a purchase.?! It notified customers and
suppliers of the potential change but emphasized that longtime corporate officers
would remain to share their expertise.22, Seventeen months later, it was running
out of money.?? MacArthur announced Western would dissolve and would let
'8 175 Cal. App. 3d 445, 450-51, 220 Cal. Rptr. 895 (Cal. Ct. App. 1985).
20 Id. at 451.
21 Id. at 452.
22 Id.
23 Id.
No. 77870-6-1/9
MacArthur purchase inventory and other assets equal to its debt, take over all
outstanding contracts, and buy Western’s records and customer lists.24 MacArthur
then created a new company, Western MacArthur Company, to do this work. The
new company retained 90 percent of Western’s employees, kept similar board
members, kept similar customers, supplied the same products, referred to itself as
“Western,” and honored work orders made out to the dissolved Western.25
Under these facts, the court concluded the product line doctrine applied. It
explained why the policy concerns underlying the doctrine were present:
When a distributor or retailer acquires a corporation and takes
advantage of its goodwill and other corporate assets and facilities to
inject the predecessor’s product line into the stream of commerce, it
continues “the overall producing and marketing enterprise that
should bear the cost of injuries resulting from defective products.”(26
The analysis in Kaminski is compelling. First, the court relied on our
Supreme Court's reasoning in Hall v. Armstrong Cork, Inc.?” and explained
MacArthur used its financial leverage and operational control to “engineer a
takeover.”28 Second, the “essence of the takeover” resulted in an asset transfer
from Western to the new company that left the plaintiff without a meaningful
remedy.”° Third, the new company was better positioned than the plaintiff to guard
24 Id. at 452-53.
25 Id. at 453.
26 Id. at 456 (quoting Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 391
P.2d 168, 37 Cal. Rptr. 896 (1964)).
27 403 Wash. 2d 258, 265-66, 692 P.2d 787 (1984).
28 Kaminski, 175 Cal. App. at 458.
29 Id.
No. 77870-6-1/10
against the risks of injury and to spread the costs of injury around by seeking
indemnification from the product’s manufacturer.°° Thus, the court held the
successor distributor was properly held liable because “[nJothing in [the product
line doctrine] conceptually limits its reasoning to manufacturers.”*"
Similarly, the product line doctrine applies to HCP’s acquisition of Benson.
On January 10, 1977, HCP purchased 100 percent of Benson’s stock from its
founder and his wife.3* Just five weeks later, HCP’s board of directors voted to
dissolve Benson.*3 HCP soon began making personnel decisions, including
promoting a long-time Benson sales employee to regional manager and retaining
Benson’s founder as a consultant.*4 On June 14, 1977, HCP filed a statement of
intent to dissolve Benson. On July 26, 1978, HCP filed Benson’s articles of
dissolution.°° HCP then received all of Benson’s assets.°° HCP expressly
identified Benson as a division, maintained largely the same suppliers and
customers, and continued operating in the same region.*’? These details show a
series of intentional steps to take control of Benson, making the company’s assets
30 Id. at 456-57.
31 Id. at 456.
32 RP (Oct. 24, 2017) at 587, 700.
33 CP at 985.
34 RP (Oct. 24, 2017) at 594-95, 701.
35 CP at 107.
36 RP (Oct. 24, 2017) at 736.
37 Id. at 595-98, 712-13, 714-16; Ex. 90.
10
No. 77870-6-1/11
part of HCP and leveraging Benson's goodwill while extinguishing Leren’s ability to
hold Benson liable for his injuries. We agree with the Kaminski court that the
rationale behind the product line doctrine applies to a distributor in these
circumstances.*8
As discussed, HCP acquired all of Benson’s assets and left it “no more than
a mere corporate shell.”°° And there can be no question that HCP held itself out
as a continuation of Benson post-dissolution. Substantial evidence supports
findings of fact 6, 11, 12, and 13, which, in turn, support the court’s conclusions
“that Benson Chemical’s goodwill was transferred to HCP and that HCP benefited
from Benson’s goodwill in its sale of asbestos products to consumers.”4° For
example, HCP, which did not operate in Washington or Oregon, acquired
Benson's Pacific Northwest distribution network upon dissolution.4' And long after
Benson's dissolution, HCP continued to place ads describing Benson as a
38 Elementis relies on another California case, Potlatch Corporation v.
Superior Court of Riverside County, 154 Cal. App. 3d 1144, 1146, 201 Cal. Rotr.
750 (Cal. Ct. App. 1984), to argue a stock purchaser cannot be liable as a result of
the purchase. But Potlatch is factually distinguishable, predates Kaminski, and,
most importantly, the logic of Kaminski is apt and compelling.
39 Martin, 102 Wash. 2d at 614.
4° CP at 989 (finding of fact 7). Findings of fact are supported by
substantial evidence where there is sufficient evidence “‘to persuade a rational,
fair-minded person of the truth of the finding.” Blackburn, 186 Wash. 2d at 256
(quoting Hegwine v. Longview Fibre Co., 162 Wash. 2d 340, 353, 172 P.3d 688
(2007)). When reviewing a jury verdict, we make all inferences in its favor. Klem
v. Wash. Mut. Bank, 176 Wash. 2d 771, 782, 295 P.3d 1179 (2013). Unchallenged
findings of fact are verities on appeal. Robel v. Roundup Corp., 148 Wash. 2d 35, 42,
59 P.3d 611 (2002).
41 RP (Oct. 24, 2017) at 621-22, 677, 680.
11
No. 77870-6-1/12
division.4 HCP also continued to use Benson’s name when distributing goods,
maintained the same office in Seattle, maintained the same phone number for the
Seattle office, maintained many of the same employees, and honored Benson’s
outstanding contracts.4° Further, it is undisputed Benson distributed raw asbestos
before dissolution and HCP continued to distribute raw asbestos under Benson's
name after dissolution.*4
Elementis contends, though, sufficient evidence does not support the
court's conclusion that it sold similar products as Benson because HCP sold only
Union Carbide’s brand of raw asbestos, whereas Benson sold only
Johns-Manville’s brand of raw asbestos before its dissolution.4° Elementis is
correct that the product line doctrine applies to a successor manufacturer where it
continues producing the same product under a similar name,** but the doctrine
does not limit liability to only those particular circumstances. The product line
doctrine requires continued sales of “the same type of product” for a successor
distributor to be held liable; the products do not need to be identical.4” A
42 Id. at 714-16; Ex. 90.
43 Id. at 595-96, 701-02, 712-13, 717, 737.
“4 Id. at 718; see Exs. 270, 281 (Benson-branded invoices showing
post-dissolution sales of raw asbestos in Washington and Oregon).
45 Elementis does not argue that the raw asbestos distributed before and
after the dissolution were different types or grades of asbestos.
46 E.g., Martin, 102 Wash. 2d at 614.
47 See George v. Parke-Davis, 107 Wash. 2d 584, 588, 590, 733 P.2d 507
(1987) (“The product line [doctrine] requires the corporation to manufacture the
same type of product, and not merely stay in the same type of manufacturing
business.”) (emphasis added).
12
No. 77870-6-1/13
distributor's goodwill is necessarily associated with the grade, quality, and price of
the raw materials it provides, regardless of the materials’ brands. On this record,
the Johns-Manville and Union Carbide brands of asbestos were the same type of
product: raw white asbestos.
Benson's goodwill was associated with its ability to deliver raw asbestos
generally, and HCP leveraged that goodwill to continue selling raw asbestos after
it dissolved Benson. HCP benefitted from those sales. Accordingly, the policies,
essential purpose, and requirements of the product line doctrine support holding
Elementis strictly liable.48
Elementis argues Leren’s recovery should be limited to the value of the
corporate assets HCP received from Benson. Elementis relies on Lonsdale v.
Chesterfield*? and Smith v. Sea Ventures, Inc.*° for this proposition. Neither case
is compelling because, unlike the instant case, both involve lawsuits against a
dissolved corporation. In absence of any persuasive authority, we decline
Elementis’s invitation to impose a cap on awards in successor liability cases.
In a related argument, Elementis contends Leren’s claims are time-barred
under the limitations period in RCW 23B.14.340 for a dissolved corporation or its
shareholders. The court denied Elementis’s motion for summary judgment
48 Leren argued additional theories of successor liability. Due to our
reasoning, there is no need to address those theories unsuccessfully advocated at
trial.
48 99 Wash. 2d 353, 662 P.2d 385 (1983).
5° 93 Wash. App. 613, 969 P.2d 1090 (1999).
13
No. 77870-6-1/14
seeking to dismiss this suit as untimely. We review summary judgment orders de
novo.5!
The general rule at common law held that dissolved corporations ceased to
exist and could not be sued, but the enactment of chapter 23B.14 RCW “showed
the legislature’s intent to cut any remaining ties” to that rule.52 RCW 23B.14.340
governs the survival of remedies against a dissolved corporation, its directors, its
officers, or its shareholders. Dissolution does not strip a claimant of the ability to
file a lawsuit.5° For a dissolution with an effective date prior to June 7, 2006,
claims are timely when filed within two years of the date of dissolution.54
Benson was dissolved in 1978, and Leren filed suit in 2015. But Elementis
provides no authority for the proposition that the legislature intended to bar
successor liability claims when it enacted the dissolution statute. Notably, Benson,
the dissolved corporation, is not party to this lawsuit. Nor is Elementis a defendant
in its capacity as successor to a former Benson shareholder. Rather, Elementis is
a defendant because the Estate alleges it is liable as HCP’s successor when HCP
is in turn a successor to Benson. Therefore, RCW 23B.14.340 does not apply.
The court did not err by denying Elementis’s motion for summary judgment.
51 Ballard Square Condo. Owners Ass’n v. Dynasty Const. Co., 158 Wash. 2d
603, 608, 146 P.3d 914 (2006).
52 Id. at 609, 611.
53 RCW 23B.14.050(2)(e)-(f).
54 Ballard Square, 158 Wash. 2d at 616. For dissolutions effective after
June 7, 2006, claims are timely when filed within three years of the effective date
of dissolution. RCW 23B.14.340.
14
No. 77870-6-1/15
Il. Wrongful Death and Survivor Actions
Elementis argues the court erred by denying its motion for judgment as a
matter of law that the Estate lacked the statutory beneficiary required to maintain a
wrongful death claim or receive an award of noneconomic damages under the
survivor statute.
“We review judgments as a matter of law de novo.”®> A motion for judgment
as a matter of law admits the truth of the evidence and reasonable inferences
favoring the nonmoving party.5® Statutory interpretation is also a matter of law
reviewed de novo.°”
In its damages instructions, the court told the jury to consider economic
damages, such as medical costs, and noneconomic damages, such as “pain,
suffering, anxiety, emotional distress, and loss of enjoyment of life experienced,”
when calculating the extent of Leren’s injury.6° The court also told the jury to
“consider what Marvin Leren reasonably would have been expected to contribute
to [stepdaughter] Jo Lefebvre in the way of love, care, companionship, and
guidance.”®° The jury awarded the Estate, on Leren’s behalf, $294,000 in
5§ Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wash. 2d 842, 848, 348
P.3d 389 (2015).
56 Tapio Inv. Co. | v. State ex rel. the Dep’t of Transp., 196 Wash. App. 528,
538, 384 P.3d 600 (2016).
5” In re Est. of Blessing, 174 Wash. 2d 228, 231, 273 P.3d 975 (2012).
58 CP at 1933.
5° CP at 1934.
15
No. 77870-6-I/16
economic damages and $681,000 in noneconomic damages.®° The jury awarded
Lefebvre “$0."6!
At issue here is the interplay between the general survival statute,
RCW 4.20.046, and the wrongful death statute, RCW 4.20.020. The survival
statute allows “[a]ll causes of action by a person” to “survive to the personal
representatives of the [person] ... whether such actions arise on contract or
otherwise.”©? But the survival statute has an exception “[t]hat the personal
representative shall only be entitled to recover damages for pain and
suffering . . . personal to and suffered by a deceased on behalf of those
beneficiaries enumerated in RCW 4.20.020."°° That statute allows wrongful death
actions only “for the benefit of the wife, husband, state registered domestic
partner, child or children, including stepchildren, of the person whose death shall
have been so caused.”°4
Elementis argues the Estate was not entitled to noneconomic damages
under the survival statute because Lefebvre is not a statutory stepchild. Any legal
relationship between Lefebvre and Leren was severed, Elementis contends, when
Leren and Lefebvre’s mother divorced in 1985.
60 CP at 916.
61 Id.
62 RCW 4.20.046(1).
63 Id.
64 RCW 4.20.020 (emphasis added).
16
No. 77870-6-1/17
A statutory stepchild under RCW 4.20.020 is “‘a child of one’s [spouse] by a
former marriage.’’°> The definition does not require “that stepchildren are
necessarily the children of a present spouse by a previous marriage or a former
partner.”®° This is because “‘the relationship by affinity is in fact... . continued
beyond the death of one of the parties to the marriage which created the
relationship, and where the parties continue to maintain the same family ties and
relationships, considering themselves morally bound to care for each other,’”®”
Relationships by “affinity” are formed by marriage rather than blood.®
The Estate relies on In re Estate of Blessing to argue Lefebvre is a statutory
beneficiary.’ In Blessing, our Supreme Court held that the death and remarriage
of a nonbiological parent did not sever the bond between a stepparent and her
stepchildren.”” A woman married her first husband, and they had three children
together.”’ After their divorce, she married her second husband, who had four
children from a previous marriage.’ They raised all seven children together,
65 Blessing, 174 Wash. 2d at 232 (quoting WEBSTER’S THIRD NEW INT’L
DICTIONARY 2237 (2002)).
66 Id.
87 Id. at 234 (quoting In re Estate of Bordeaux, 37 Wash. 2d 561, 579-80, 225
P.2d 433 (1950)).
68 Id. at 233 n.3.
88 174 Wash. 2d 228, 273 P.3d 975 (2012).
70 Id. at 235.
1 Id. at 230.
72 Id.
17
No. 77870-6-1/18
although she never adopted her second husbanda’s children.’? He died after
almost 30 years of marriage.’* The woman married for a third time, and her third
husband died a few years later.’ After the woman died in a car accident, her
estate brought wrongful death claims on behalf of her three biological children and
four stepchildren.” The court reasoned that the stepchildren “[i]ndisputably . . . at
least during the marriage, had legal status as ‘stepchildren.’””” And the “step
relationship” continued even after they had become adults and the marriage
terminated upon their father’s death.” The court rejected the argument “that once
a marriage ends, the step relationship ends,” so the fact of the woman's
remarriage was not germane.”? Accordingly, the stepchildren “retained” their
status under RCW 4.20.020.8°
Similarly, here, Lefebvre indisputably became Leren’s stepdaughter from
age seven through to adulthood. Lefebvre’s mother testified that people regarded
Leren as Lefebvre’s biological father.*' As a child, Lefebvre did not have a
relationship with her biological father, and she has always regarded Leren as her
73 |d.
74 Id.
75 Id.
76 Id.
7 \d. at 231.
78 Id. at 235.
79 Id.
80 Id,
81 RP (Oct. 25, 2017) at 757.
18
No. 77870-6-1/19
father. Leren taught Lefebvre how to tie her shoes, ride a bike, and catch a
fish.88
Further, Lefebvre and Leren “continue[d] to maintain the same family ties
and relationships, considering themselves morally bound to care for each other’”®4
even after the divorce. Leren, Lefebvre, and her mother regularly celebrated
Lefebvre’s birthdays together.®> For the five years Lefebvre lived overseas, she
and Leren spoke by phone every week.®* Leren and Lefebvre regularly went
camping together until she married.2’ At Lefebvre’s wedding, Leren walked her
down the aisle and danced with her for the traditional father/daughter dance.88
Leren attended funerals for Lefebvre’s maternal grandmother and uncle.82 Leren
was present when Lefebvre’s son was born, and Leren “was a strong figure” in her
son’s life.°° After learning of his diagnosis, Lefebvre spent every night at the
hospital with Leren until he died.°' She informed her mother of his death.92 Leren
left a bequest for Lefebvre in his will, which he made in the weeks before his
82 Id. at 757-59, 762.
83 Id. at 814.
84 Blessing, 174 Wash. 2d at 234 (quoting Bordeaux, 37 Wash. 2d at 579-80).
85 RP (Oct. 25, 2017) at 773.
86 Id. at 835.
87 Id. at 772-73.
88 Id. at 774.
89 Id.
90 Id. at 822.
$1 Id. at 803.
% |d. at 776.
19
No. 77870-6-1/20
death. Although Elementis distinguishes Blessing because that marriage
terminated by death rather than divorce, the bonds of affinity between Leren and
Lefebvre indisputably lasted until the end of Leren’s life. The logic of Blessing
controls here and requires a similar result.
Elementis warns that absurd results will flow from ruling in the Estate’s
favor. Specifically, Elementis fears that former spouses will be able to maintain
wrongful death claims. But spouses are not stepchildren. The bonds of affinity
formed by marriage have ceased to exist between spouses who choose to
divorce—hence, the divorce. Divorces do not, in theory, sever the bonds of affinity
between a stepparent and a stepchild any more than between a parent and a
biological child. “Any concerns over the result or regarding which stepchildren
should be entitled to recover in a wrongful death suit are far more appropriately
factored into any damages determination.”*4 Lefebvre was a statutory beneficiary
under RCW 4.20.020, and the Estate was properly allowed to collect noneconomic
damages under RCW 4.20.046. The court did not err by denying Elementis’s
motion for judgment as a matter of law.%
93 Id. at 835-36.
% Blessing, 174 Wash. 2d at 238.
5 We note that the legislature recently enacted amendments to the
wrongful death and survival statutes. Laws oF 2019, ch. 159, §§ 1-4.
Significantly, the amendments remove the requirement that a decedent’s second
tier beneficiaries, which include siblings, must have been dependent on the
decedent to be a statutory beneficiary for a wrongful death action or for receipt of
noneconomic damages in a survivor action. Id. at §§ 2-3. These amendments
apply retroactively to any case pending in any court as of the law's effective date.
Id. at § 6. This could provide an alternative legal theory that retroactively supports
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Ill. Superseding Cause of Injury
Elementis argues the court erred by denying its request for a jury instruction
that Z-Brick’s conduct was a superseding cause of Leren’s injuries.%
We review jury instructions de novo for legal errors.2” But the decision to
provide a jury instruction depends on the facts of the case and is reviewed for
abuse of discretion.°* A court abuses its discretion where its ruling is based on
untenable grounds.°° Jury instructions are generally sufficient if they are
supported by the evidence, allow each party to argue its theories of the case, and,
read together, properly inform the jury of the applicable law.1°°
As a general matter, the superseding cause theory applies to product
liability actions.'°' If an employer's conduct is at issue, failure to protect an
employee from a product that is unreasonably unsafe can be a superseding cause
an award of noneconomic damages regardless of Lefebvre’s status as a statutory
beneficiary because Leren’s brother is the Estate’s personal representative.
%6 Although the court granted a partial motion for summary judgment on this
issue in the Estate’s favor, Elementis does not appeal that order and instead
argues the court should have modified its order during trial and allowed the
instruction.
8” Paetsch, 182 Wash. 2d at 849.
% Fergen v. Sestero, 182 Wash. 2d 794, 802-03, 346 P.3d 708 (2015).
8° Hizey v. Carpenter, 119 Wash. 2d 251, 268, 830 P.2d 646 (1992).
100 Fergen, 182 Wash. 2d at 803.
101 Taylor v. Intuitive Surgical, Inc., 187 Wash. 2d 743, 767-68, 389 P.3d 517
(2017).
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where “the employer had actual, specific knowledge that the product was
unreasonably unsafe and failed to warn or protect.”"°
An industrial hygienist testified that it was widely known by 1964 that direct
and indirect asbestos exposure could cause mesothelioma and that major studies
were published as early as 1949 linking asbestos exposure to lung cancer. '°3
Additional testimony stated that all asbestos would have come with a warning
printed on it beginning in 1972.'°* But no one testified about Z-Brick’s actual,
specific knowledge during the years Leren worked with asbestos.
Elementis relies heavily on testimony from a former employee that beginning
around 1963, workers would say, “Put on your mask. I’m going to add the
asbestos now,” before pouring it into a hopper.'°5 This, according to Elementis,
“shows an awareness of a hazard.”'° But that same employee explained the
masks were just basic dust masks costing around 10 cents apiece.'°” Another
Z-Brick employee testified the masks were for “nuisance dust” only.'°® Elementis’s
102 Campbell v. ITE Imperial Corp., 107 Wash. 2d 807, 817, 733 P.2d 969
(1987) (emphasis added). An employer’s conduct also may constitute a
superseding cause where “(1) the employer's intervening negligence created a
different type of harm; or (2) the employer's intervening negligence operated
independently of the danger created by the manufacturer.” Id. Elementis does not
argue either of these applies.
103 RP (Oct. 23, 2017) at 437-38, 450.
104 RP (Oct. 26, 2017) at 924-25.
105 Appellant's Br. at 15, 37.
108 Id. at 37.
107 Ex, 328 at 16:00-16:30.
108 RP (Oct. 25, 2017) at 769.
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evidence merely proves some workers were generally aware of the hazards from
dust. It is not the same as an employer's knowledge of risks from repeated
exposure to asbestos dust. Given the lack of testimony about Z-Brick’s actual,
specific knowledge, the court did not abuse its discretion.
Therefore, we affirm.
WE CONCUR:
ee /
Law. G. ata z }
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