IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RONALD FAGG,
No. 69719-6-1
Appellant,
DIVISION ONE
v. C3 r- -
rn _.
BARTELLS ASBESTOS SETTLEMENT CO -;.•.•
TRUST; CATERPILLAR, INC., CERTAINTEED
CORPORATION; CNH AMERICA LLC;
o
CSKAUTO, INC..; DUNN LUMBER PUBLISHED OPINION
OS
COMPANY, INC..; E.J. BARTELL'S;
EXXONMOBIL OIL CORPORATION;
H. D. FOWLER COMPANY; MOBIL OIL
CORPORATION PACIFIC WATER WORKS
SUPPLY COMPANY, INC.; and FIFTH DOE
through ONE HUNDREDTH DOE;
Respondents. FILED: December 8. 2014
Spearmanj, C.J. — Over the course of several decades, Ronald Fagg was
exposed to various asbestos-containing products at work sites, during personal
automotive repairs, during time vacationing and living in the Libby, Montana area. He
was later diagnosed with asbestosis and asbestos related pleural disease. In this action,
he seeks damages from a number of seller and manufacturer defendants, who he
alleges are liable for his injuries under common law theories of negligence and strict
liability. Two of the seller defendants, Pacific Water Works Supply, Inc. (PWWS) and
CSK Auto, Inc. (CSK), moved for summary judgment on the grounds that Fagg's
common law claims against them were barred by the Washington Product Liability Act,
ch. 7.72 RCW (WPLA). The trial court agreed and dismissed the claims as to both
No. 69719-6-1/2
defendants. We Affirm the trial court with respect to PWWS, but reverse with respect to
CSK and remand for further proceedings.
FACTS
In October 2009, the appellant, Ronald Fagg, was diagnosed with asbestosis and
asbestos related pleural disease. He initiated this action on January 29, 2010, alleging
common law neg igence and strict liability against a number of defendants who were
allegedly responsible for his exposure to asbestos, including the respondents, PWWS
and CSK.1
Fagg claimed that the defendants were jointly and severally liable for his
asbestos related injuries, which resulted from (1) exposure to various asbestos-
containing products during his employment as a construction worker, naval machinist
mate, and heavy equipment operator from 1963 through the late 1970s; (2) personal
automotive repair jobs using asbestos-containing parts between the 1950s and 1980s;
(3) work with cementitious asbestos-containing pipe (transite) over a period of
approximately ten and a half years, beginning in the late 1970s; and (4) vacationing in
the vicinity of the Libby, Montana superfund site from the early 1980s to 1990s, and
living there from £001 to 2007.
PWWS and CSK each moved for summary judgment, claiming that Fagg's
negligence and strict liability claims were precluded by the WPLA, that they are immune
from liability under the WPLA, and that Fagg failed to establish that exposure to PWWS
1 PWWS was added by amended complaint on September 20, 2010. Bartell Asbestos Settlement
Trust; Certainteed Corporation, Dunn Lumber Company, Inc., E.J. Bartell's, CNH America LLC,
Caterpillar Inc., ExxonMobil Oil Corporation, H.D. Fowler Company, Mobil Oil Corporation and Fifth Doe
through One Hundred Doe are not parties to this appeal.
No. 69719-6-1/3
and CSK product? was a substantial factor in causing his disease. The trial court
granted PWWS's and CSK's motions for summary judgment on the first ground but did
not rule on the second. Fagg appeals.
Faqq's Exposure to Asbestos-Containing Products Sold bv PWWS
For six mopths during 1979-1980, Fagg worked for C&D Enterprises (C&D)
installing transite Water mains and hydrants. From 1980 to 1985 he worked for Lake
Washington Sewer and Water (Lake Washington), as a backhoe operator and repaired
transite pipes. From 1985 to 1990, he worked as a backhoe operator for the City of
Kirkland. Each of these jobs involved cutting twenty foot lengths of transite pipe and
beveling the edges with a power saw. Each cut and bevel created large quantities of
dust. Fagg personally made forty to fifty cuts and bevels of transite pipe during his
employment with C&D. At Lake Washington, he made or watched from a close distance
over one hundred cuts and fifty bevels of transite pipe, about half of which involved
pipes already in the ground and half of which involved new pipes. CP at 427-28, 430-31.
At the City of Kirkland, he made approximately fifteen cuts and ten bevels of transite
pipe.
Fagg testi ied that the new transite pipe he worked with at C&D, Lake
Washington, and City of Kirkland came from two different suppliers, one of which was
PWWS, which began selling transite pipe in 1957 or 1958. In the early to mid-1960s,
PWWS made deliveries of transite pipe to individual customers. In 1967 or 1968,
PWWS sold its only delivery truck and permanently ceased its delivery service. But
customers were still able to purchase transite pipe from PWWS retail outlets and
transport the product themselves. PWWS offered evidence that it stopped selling
No. 69719-6-1/4
transite pipe and |>ther asbestos-containing products in Washington and Oregon in
1984.
Fagg testif ed that, between 1979 and 1980, while he was employed with C&D,
from time to time he would personally pick up transite pipe from PWWS's Woodinville
outlet. He did not visit either of PWWS's other branches in Seattle or Tacoma. Fagg
also testified that trucks would deliver transite pipe to the C&D storage yard. He
understood those trucks, which were operated by C&D's drivers, were carrying transite
from PWWS. Fagg estimated that at least twenty or thirty of the cuts and ten of the
bevels he made while employed by C&D involved transite pipe sourced from PWWS.
PWWS contradicted Fagg's testimony with evidence that its Woodinville location did not
open until 1981 at the earliest and that, before 1981, PWWS only sold transite pipe out
of its Seattle and Tacoma locations.
Fagg also estimated that most of the new transite he worked with at Lake
Washington had borne from PWWS because they "used to give...the best deal" and
because of his conversations at the time of delivery with Lake Washington's truck driver.
Clerk's Papers (CP) at 429-30.
Disputing pWWS's contention that it stopped selling transite in Washington and
Oregon in 1984, ^agg testified that truck drivers employed by Lake Washington and the
City of Kirkland ddelivered transite from PWWS to his work sites during 1984-90.
Fagg's Exposure to Asbestos-Containing Products Sold by CSK
It is undisputed that Fagg used auto parts sold by Al's Auto Supply and Schuck's
Auto Supply—subsidiaries of CSK—in connection with brake, clutch, or gasket repair
work on several Automobiles from the 1950s to the 1980s. The record shows that Fagg
No. 69719-6-1/5
did fourteen repair jobs during that time.2 According to Fagg's unrebutted testimony,
seven jobs occurred before 1981 and one after July 26, 1981. Of the remaining six jobs,
four occurred during the early 1980s and one occurred in the late 1970s or early 1980s.
Fagg was unable to estimate an approximate date for the remaining job.
Fagg always bought new Bendix brakes and Victor gaskets at either Al's or
Schuck's. He never removed any Bendix or Victor parts that he had previously installed.
Nor did he arc or grind any of the new Bendix or Victor parts he had purchased. In
general, he noticed no dust emitting from the new parts. But, "once in a blue moon" he
would take a few minutes to sand a small "bump" on a brake part, which would produce
a miniscule amount of dust. CP at 1026. Fagg also used compressed air to blow away
2 Although the parties disagree on the precise number of repairs Fagg made using CSK parts, the
record from below discloses the following:
1. In the 19ios, he replaced the brakes on his mother's 1949 Ford. CP at 859-60.
2. In the 1950s, he adjusted the clutch on a 1949 Ford pickup. CP at 876-77.
3. In the late^ 1950s, he replaced the brakes on a1953 Ford. CP at 862-63.
4. In the early 1960s, he replaced the brakes and did two exhaust manifold gasket
replacements on a 1957 Ford Ranchero. CP at 871-73.
5. In the earjly to mid-1960s, He replaced the brakes and two exhaust manifold gaskets
on a 1956 Ford pickup. CP at 863-64.
6. In the 1960s, he replaced the brakes on a 1956 Ford pickup. CP at 865-66.
7. In the 19192 P.3d 886 (2008). Summary judgment is
proper if, viewing the facts and inferences in favor of the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. ]d.; CR 56(c). Where liability depends upon a mixed question of fact and law,
and the facts are disputed, a motion for summary judgment should be denied. Rathvon
v. Columbia Pac. Airlines.
30 Wash. App. 193,
633 P.2d 122 (1981).
Applicability of the WPLA
Products liability cases in Washington are governed by the WPLA. The statute
immunizes product sellers from product liability claims except under certain enumerated
circumstances. It provides in relevant part:
(1) Except as provided in subsection (2) of this section, a product seller
other thana manufacturer is liable to the claimant only if the claimant's
harm was proximately caused by:
(a) The negligence of such product seller; or
(b) Bregch of an express warranty made by such product seller; or
(c) The intentional misrepresentation of facts about the product by such
product seller or the intentional concealment of information about the
product by such product seller.
RCW 7.72.040(1). The WPLA supplants common law claims or actions based on harm
caused by a product that arise on or after its effective date, July 26, 1981. Macias v.
Saberhagen Holdings, Inc.,
175 Wash. 2d 402, 408,
282 P.3d 1069 (2012) (citations
omitted). Insofar as a negligence claim is product based, the negligence theory is
subsumed within the WPLA product liability claim. Jd. (Citations omitted).
8
No. 69719-6-1/9
When a plaintiff's alleged exposure to injury-causing products is prolonged or
continuous in nature, as in the present case, Washington courts consider when
"substantially all" pf the exposure occurred in determining when the claim arises.
Macias, 175 Wash. 2d at 408-09; Braaten v. Saberhagen Holdings,
165 Wash. 2d 373, 381 n.
1, 4,
198 P.3d 493 (2008); Koker v. Armstrong,
60 Wash. App. 466, 472 n.4,
804 P.2d 659
(1991). The parties agree the WPLA applies unless "substantially all" of the exposure
occurred before July 26, 1981.4 There is also no dispute that ifthe WPLA applies, the
respondents are irjimune from suit and Fagg's claims against them were properly
dismissed.
Under the l^/lodel Business Corporation Act, the term "substantially all" was
intended to mean "nearly all." See Model Bus. Corp. Act § 12.01 cmt. 1 (1984). Other
jurisdictions have accorded the term similar meaning. See e.g., Ice Service Co., Inc. v.
Comm'r of Internal Revenue,
30 F.2d 230, 230 (2d Cir. 1929) (holding that substantially
all, in the context bf when two corporations are affiliated for tax purposes, means all
except "a negligib e minority" or when a "practically negligible" amount remains); Hook
v. Astrue,
2010 WL 2929562, *4 (N.D. Ohio July 9, 2010) (holding, in the context of
"This approach is consistent with our caselaw. In
Koker, 60 Wash. App. at 472, Viereck, 81 Wn.
App. 579, 584-85, 91
5 P.2d 581 (1996), and Krivanek v. Fibreboard Corp..
72 Wash. App. 632, 635,
865
P.2d 527 (1993), we held the WPLA did not apply because substantially all of the plaintiffs' exposures to
asbestos occurred bqfore enactment of the statute. Likewise, in Braaten, the Supreme Court "noted that
the exposure to asbestos products 'substantially occurred before the enactment' of the WPLA.... [and]
decided the case under common product liability and negligence law."
Macias, 175 Wash. 2d at 408 (citing
Braaten. 165Wn.2d qt383 n.4). In Macias, the Court expressed the test for applicability of the WPLA
somewhat differently, holding that the WPLA barred the claims in that case where substantially all the
plaintiffs exposure to asbestos occurred after enactment of the statute. Macias at 408-09. We do not
perceive this to be a ifneaningful distinction because under the facts of Macias it is evident that, consistent
with the cited precedent, substantially all of the plaintiffs exposure did not occur before the effective date
of the WPLA. Moreover, the Macias Court expressly stated that its holding was "[i]n accord with Koker,
Viereck, and Braaten "Id. at409.
No. 69719-6-1/10
social security disability analysis, that "substantially all means 'essentially all' as
opposed to 'in the main' or 'for the most part'").
In quantifying the term, courts have found "substantially all" to mean 85 percent
or more. Seee.g., Continental Can Co.. Inc. v. Chicago Truck Drivers.
916 F.2d 1154,
1158 (7th Cir. 1990) (assets in a pension fund); Central States Southeast & Southwest
Pension Fund v. Bellmont Trucking. Co..
610 F. Supp. 1505, 1511 (N.D. Ind. 1985)
(employee contributions in a pension fund). Similarly, seventy-five percent and sixty-five
percent have been found not to be the equivalent of "substantially all." See §&, Theurer
v. Bd. of Review, |ndus. Com'n.
725 P.2d 1338 (Utah 1986) (assets acquired by dentist
upon acquisition c-f practice); James v. McCoy Mfg. Co.,
431 So. 2d 1147, 1149 (Ala.
1983) (assets acquired by an employer from a former employer). For purposes of this
case, however, we need not decide whether to define "substantially all" by its plain
meaning or quantitatively because the outcome is the same under either definition.
As a threshold matter, the parties dispute what should be measured in
determining whether substantially all of Fagg's exposure occurred before enactment of
the WPLA. Fagg Argues that we should consider his total exposure to asbestos from
any source and thjen determine whether substantially all of his exposure occurred
before July 26, 1981.5 If so, and a respondent's product was a part of that exposure,
then Fagg urges us to conclude that the WPLA does not apply to that respondent.
5 Specifically he urges the court to consider all exposure during (1) his employment from 1963
through the late 1970s as a construction worker, naval machinist mate, and heavy equipment operator,
which involved exposure to various asbestos-containing products; (2) personal automotive repair jobs
between the 1950s and 1980s using products sold by CSK Auto; (3) work with transite pipe sold by
PWWS over a period of approximately ten and a half years beginning in the late 1970s; and (4) his time
vacationing and living near the Libby, Montana Superfund site from the 1980s to 2007.
10
No. 69719-6-1/11
Fagg analogizes the "substantially all" test for application of the WPLA to the
"substantial factor" causation test applied in toxic exposure cases. He argues that just
as a plaintiff need not "prove that a particular defendant's product was the sole cause of
the injury, only that it was present in the work environment when the exposure
occurred," neither should a plaintiff have to prove that substantially all of his or her
exposure to asbestos before July 26, 1981 was attributable to a particular defendant,
but only that the defendant's product made up a part of that exposure. Brief of Appellant
at 32.
PWWS and CSK argue that we should measure a plaintiff's exposure to a
specific defendant's products and only ifsubstantially all of a plaintiffs exposure to that
defendant's product occurred before July 26, 1981 can we conclude that the WPLA
does not apply.6 We agree with respondents.
In Macias,
175 Wash. 2d 402, the plaintiff sued various sellers of asbestos-
containing products, claiming he was exposed to their products in the naval shipyards
where he worked from 1978 to 2004.7 jd at 405. The Court found that the plaintiff's
claims as to somei of the defendant sellers arose under the WPLA because all or
substantially all of the plaintiff's exposure to those defendants' specific products
6Fagg arguels that the respondents are "judicially estopped" from making this argument because
it contradicts the pos tion they took in the trial court. The claim is without merit for several reasons. First,
PWWS argued for a pefendant-specific approach in its summary judgment motion below. CP at 102-03.
And, although CSK Auto argued for an aggregate approach below, itdid so without the benefit of the
Macias decision, whiph offered guidance on this issue. Lastly, we may affirm a grant of summary
judgment on an issue not decided by the trial court provided that it is supported by the record and is
within the pleadings ind proof. Plein v. Lackey.
149 Wash. 2d 214, 222,
67 P.3d 1061 (2003). To the extent
that the parties argue for a defendant-specific approach on appeal, they do so to provide a basis for this
court to affirm the trial court based on the record in this case. We, therefore, consider the argument.
7The trial court considered this case when deciding PWWS's motion for summary judgment, but
not CSK Auto's.
11
No. 69719-6-1/12
occurred after the effective date of the WPLA. \± at 408-09. The Court applied the
WPLA to the plaintiff's claim even though he was exposed to asbestos-containing
products sold by s^ome of the defendants for at least two years before the effective date
of the statute. The Court specifically addressed the applicability of the WPLA to three of
the defendants, stating:
The record indicates that Macias maintained and cleaned
respirators manufactured by the Mine Safety Appliances Company
and North America Safety Products USA only after June 1981. The
WPLA clearly governs the claims against these defendants. With
respect to American Optical Corporation, the WPLA applies, as
explained, because substantially all of Mr. Macias's exposure to
asbestos occurred after the effective date of the Act.
Ig\ at 409, n.2. In Concluding that the WPLA applied to these defendants, the Court
reiterated the rule that "a 'manufacturer's duty to warn is restricted to warnings based on
the characteristics of the manufacturer's own products'; "[t]he law generally does not
i
require a manufacturer to study and analyze the products of others and warn users of
the risks ofthose products."
Id. at 411, quoting
Braaten, 165 Wash. 2d at 385, citing
American Law of Products Liability 3d §32:9 (John D. Hodson & Richard E. Kay eds.
2004); 63A Am.Jur.2d Products Liability §1127 (1997). Thus, for purposes of
i
determining whether a claim arises under the WPLA as to a specific defendant, the
determinative factor is when all or substantially all of the plaintiff's exposure to that
defendants' particular asbestos-containing products occurred.
Simonetta y-Viad Corp.,
165 Wash. 2d 341,
197 P.3d 127 (2008) and Braaten,
165
Wash. 2d 373, are in accord. In Simonetta. a former navy machinist sued the manufacturer
of an evaporator, jjsed for desalinization ofsea water, alleging that the manufacturer
was liable for the machinist's asbestos related disease; the machinist had been
12
No. 69719-6-1/13
exposed to asbestos insulation, which the navy had used to encapsulate the evaporator
and was manufactured by a third party. In Braaten, a former pipe fitter sued the
manufacturers of various valves and pumps, alleging that they were liable for his
asbestos related disease; the pipe fitter had also been exposed to asbestos insulation,
manufactured by a third party and used by the navy to insulate the defendants'
products. In each sase, the Court focused on the asbestos-containing products that
were alleged to have caused the plaintiffs' injuries and whether those products were
manufactured by the defendants or were in the defendants' chain of distribution.
Concluding they were not, the Court held that the defendants had no duty to warn "of
the dangers of exposure to asbestos in products it did not manufacture and for which
the manufacturer Was not in the chain of distribution." Braaten, at 398.8
In light of Mjcias, Simonetta and Braaten, Fagg's contention that we take into
account all of his Exposure to asbestos from any source to determine when his claim
arose is untenable^. Whether the respondents owe Fagg a duty at all, the breach of
which gives rise to his claim, depends on the products alleged to have caused Fagg's
injuries and whether those products were in the respondents' chain of distribution.
Under the controlling cases, to the extent Fagg's claimed injuries arise from products
outside the respondents' "chain of distribution", no duty can be attributed to them.
Macias, 175 Wash. 2d at 410-11. Thus, we conclude that the proper measure to determine
if Fagg's claims fa Is under the WPLA is whether all or substantially all his exposure to
the asbestos-containing products of each respondent occurred before July 26, 1981.
8 Simonetta and Braaten both involved manufacturer defendants, but the analysis regarding chain
of distribution seems to us equally applicable to seller-defendants who are outside the chain of
distribution of their co+defendants' products.
13
No. 69719-6-1/14
Applying the Analysis to PWWS and CSK
PWWS
Viewing the: evidence in the light most favorable to Fagg, he was exposed to
PWWS's transite beginning with his employment with C&D in 1979 and concluding with
his employment with the City of Kirkland in 1990. Considering only the years of Fagg's
exposure to transite, it is evident that less than twenty-five percent of this time is before
July 26, 1981. Thus, Fagg's pre-WPLA exposure to transite is sold by PWWS
insufficient to constitute "substantially all" of his exposure to that product. By this
measure, Fagg's claim against PWWS falls under the WPLA.
The result does not change when we consider the relative extent of exposure
during each year of employment. Fagg made approximately fifty cuts and bevels during
his time at C&D (1979-1980); seventy-five cuts and bevels to new pipe (the rest
involved pipe already in the ground from unknown sources), an average of fifteen per
year, at Lake Washington (1980-1985); and twenty-five cuts and bevels, an average of
five per year, at City of Kirkland (1980-1990). Of his approximately 150 total cuts and
bevels between 1979 and 1990, an average of fifty-nine cuts and bevels, or thirty-nine
percent, occurred before July 26, 1981. Because this amount cannot be considered
substantially all, the trial court properly concluded that Fagg's claims arose under the
WPLA and did not err in dismissing them.
CSK
Fagg claims he was exposed to asbestos-containing auto parts purchased from
CSK on fourteen occasions beginning in the 1950s through the 1980s. Viewing the
evidence in the light most favorable to him, thirteen of those exposures occurred before
14
No. 69719-6-1/15
July 26, 1981: Fagg testified that seven occurred before 1981, five in the early 1980s,
and one in late 1970 or early 1980. Therefore, we conclude that because substantially
all of Fagg's exposure to CSK's asbestos-containing products occurred before July 26,
1981, the WPLA does not apply with respect to Fagg's claims against CSK. The trial
court erred in entering summary judgment for CSK on this ground.9
Affirm with Respect to PWWS. Reverse with respect to CSK.
WE CONCUR:
9 Although CSK also moved for summary judgment on grounds that Fagg failed to raise a
disputed issue of fact regarding causation, the trial court did not rule on that issue and CSK did not brief
the issue on appeal. Apcordingly, we do not reach that issue in our opinion.
i 15