Candace Noll v. Special Electric Co

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CANDACE NOLL, Individually and as
Personal Representative of the Estate of No. 77888-9-I
Donald Noll, Deceased,
DIVISION ONE
Appellant,
UNPUBLISHED OPINION
v.
SPECIAL ELECTRIC COMPANY, INC.,
Respondent,
and
AMERICAN BILTRITE, INC.;
AMETEK INC.;
BIRD INCORPORATED;
BORGWARNER MORSE TEC INC. as
successor-by-merger to BORG-
WARNER CORPORATION;
CBS CORPORATION, a Delaware
Corporation, f/k/a VIACOM INC.,
successor by merger to CBS
CORPORATION, a Pennsylvania
Corporation, f/k/a WESTINGHOUSE
ELECTRIC CORPORATION;
CERTAIN TEED CORPORATION;
CONWED CORPORATION;
DOMCO PRODUCTS TEXAS INC;
FORD MOTOR COMPANY;
GENERAL ELECTRIC COMPANY;
GEORGIA-PACIFIC LLC;
HERCULES INCORPORATED;
HONEWELL INTERNATIONAL INC.;
INDUSTRIAL HOLDINGS
CORPORATION f/k/a THE
CARBORUNDUM COMPANY;
INGERSOLL-RAND COMPANY;
No. 77888-9-I/2
J-M MANUFACTURING COMPANY
INC.; KAISER GYPSUM COMPANY
INC.; KELLY MOORE PAINT
COMPANY INC.,
Defendants.
HAZELRIGG, J. — This case returns following entry of findings of fact on
remand as directed by our opinion in Noll v. Special Electric Company, Inc., 9 Wn.
App. 2d 317, 444 P.3d 33 (2019). We ordered this remand because neither the
trial court’s reasoning nor the underlying facts supporting its decision that it lacked
personal jurisdiction over Special Electric Company could be discerned from the
original record on appeal. We remanded for the trial court to return to the
documentary evidence previously submitted by the parties, determine whether
Special Electric purposefully availed itself of the privilege of doing business in
Washington, and provide us with the record necessary to engage in our analysis
of the issues raised by appellant Noll. We retained jurisdiction for subsequent
review. On remand, a different judge reviewed the record and issued findings of
fact. This trial court’s findings support the conclusion that personal jurisdiction
exists over Special Electric. Accordingly, we reverse the dismissal of Noll’s lawsuit
against Special Electric.
FACTS
The trial court dismissed Donald Noll’s asbestos claims against Special
Electric Company (Special Electric) for lack of personal jurisdiction.1 Noll appealed
and the Washington Supreme Court remanded to the trial court to reconsider its
1 The facts are set forth in detail in this court’s opinion in Noll v. Special Electric Company,
Inc., 9 Wash. App. 2d 317, 444 P.3d 33 (2019). We repeat only those facts necessary to resolve the
issues before us now.
2
No. 77888-9-I/3
ruling in light of State v. LG Electronics, Inc., 186 Wash. 2d 169, 375 P.3d 1035
(2016). Noll v. Am. Biltrite Inc., 188 Wash. 2d 402, 416, 395 P.3d 1021 (2017) (Noll
I). The court concluded that Noll did not allege sufficient facts for Washington to
exercise specific personal jurisdiction over Special Electric. But the court also
indicated that it did not intend to preclude the trial court from making its own finding
of jurisdiction on remand “depending on the allegations that the plaintiff then
raises.” Noll I, 188 Wash. 2d at 406. Because “Noll failed to allege any action taken
by Special to purposefully avail itself of the benefits and protections of the
Washington market,” the court declined to decide “if showing actual knowledge or
awareness is necessary, or sufficient, to finding specific personal jurisdiction in
stream of commerce cases.” Noll I, 188 Wash. 2d at 416.
On remand, Noll presented a new motion to establish specific jurisdiction
with additional evidence. After conducting a preliminary hearing based solely on
documentary evidence, the trial court denied Noll’s motion to establish personal
jurisdiction over Special Electric. The trial court did not enter findings of fact or
conclusions of law, entering only the following order denying the motion:
The evidence presented by Plaintiff is insufficient to establish that
Special [Electric] to [sic] purposely avail[ed] itself of the benefits
and protections of the Washington market, thus conferring specific
jurisdiction in this matter. Special [Electric]’s other unrelated
contacts with two Washington State companies are not relevant to
[the] issue of specific jurisdiction which is the only basis that is
asserted.
Noll appealed. Noll v. Special Elec. Co., 9 Wash. App. 2d 317, 444 P.3d 33
(2019) (Noll II). We held that it was appropriate to apply the “usual standards of
review in Washington,” i.e., de novo for conclusions of law and substantial
3
No. 77888-9-I/4
evidence review for findings of fact. Noll II, 9 Wash. App. 2d at 321. While
acknowledging that case law permits Washington courts to review documentary
evidence de novo, we also recognized our authority to defer to the trial court’s
findings in cases where the evidence was voluminous and complex. Noll II, 9 Wn.
App. 2d at 321 (citing Dolan v. King County, 172 Wash. 2d 299, 310-11, 258 P.3d 20
(2011)). Because the evidence here “involves a number of complex questions,
including the meanings of corporate documents, abbreviations, figures, and
percentages,” we held “it appropriate to defer to the trial court as to the facts in
these circumstances.” Noll II, 9 Wash. App. 2d at 321.
We rejected Special Electric’s invitation to rely on implied findings of fact
based on the trial court’s decision, noting that Special Electric failed to prepare a
formal order or request findings of fact and this court was “not inclined to speculate
on findings beneficial to the party that failed to procure them.” Noll II, 9 Wash. App.
2d at 323. We further acknowledged that “the subject of specific jurisdiction is not
well-settled law,” noting a “significant disagreement” among courts about how to
test evidence of personal jurisdiction. Id.
We then remanded for the trial court to make specific factual findings in
support of its ruling “[b]ecause we cannot discern the reasoning or underlying facts
supporting the decision to deny personal jurisdiction against Special Electric,” and
“[b]ecause we have no reliable indication of the facts as the trial court understood
them.” Noll II, 9 Wash. App. 2d at 319, 323. Specifically, we asked the trial court to
answer the following questions “as well as any other findings of fact that support
its decision”:
4
No. 77888-9-I/5
1. Did Special Electric control a significant share of the United
States market for asbestos?
2. Did Special Electric intend for its asbestos to be incorporated
into products sold across the United States and in
Washington?
3. Was a substantial volume of CertainTeed asbestos-cement
pipe containing Special Electric’s asbestos sold in
Washington as part of the regular flow of commerce?
4. Did Special Electric know that CertainTeed sold asbestos-
cement pipe in Washington?
5. Should Special Electric have known that CertainTeed sold
asbestos-cement pipe in Washington?
Noll II, 9 Wash. App. 2d at 323-24.
The trial judge who made the ruling underlying this appeal retired prior to
our remand and the case was ultimately reassigned to another.6 As we instructed,
the trial court reviewed the evidence, clarifying that “[t]his court’s role is not limited
to finding only facts that support the trial court’s prior decision to dismiss for lack
of jurisdiction,” and “acts as a neutral fact finder – it does not view the facts in a
light favorable to one side or the other, and will only make reasonable inferences
based on the evidence in the record.” The court made extensive findings of fact
and the following findings in answer to our questions on remand:
There is insufficient evidence in the record to determine Special
Electric’s volume share of the total United States market for all types
of asbestos during the relevant time period. However, based on the
findings set forth above, the court finds that, by 1977-79, when Mr.
Noll worked on construction in Washington cutting asbestos-cement
pipe manufactured by CertainTeed, Special Electric controlled a very
substantial share of the United States market for crocidolite (blue)
asbestos, and Special Electric’s volume share of the overall United
States market for asbestos of all types was not insignificant.
6 The superior court denied Special Electric’s request to assign the case to Judge Ramsdell
as a Judge Pro Tempore. This court denied Special Electric’s request to “direct that the assignment
of the remand matter to Judge Scott be withdrawn” and “request Hon. Judge Jeffrey M. Ramsdell
(Ret.) to accept a pro tem assignment in order to complete the remand process.” Respondent’s
Motion For Clarification of Remand Directive, filed September 12, 2019; Order Denying Motion for
Clarification of Remand Directive, filed October 11, 2019.
5
No. 77888-9-I/6
Furthermore, considering facts other than just volume market share,
Special Electric was an active and significant participant in the overall
United States markets for asbestos, and sought to stay well-informed
of and involved in the markets for asbestos.
Based on the findings set forth above, as well as on additional facts
set forth below, the court finds that Special Electric intended for its
asbestos to be incorporated into products sold across the United
States, including in Washington.
Based on the forgoing facts, a substantial volume of CertainTeed
asbestos-cement pipe containing Special Electric’s asbestos was
sold in Washington as part of the regular flow of commerce.
Based on the substantial circumstantial evidence described above,
the court finds that Special Electric knew CertainTeed sold
asbestos-cement pipe in Washington.
Based on the findings set forth above, and a fortiori, Special
Electric should have known that CertainTeed sold asbestos-cement
pipe in Washington.
DISCUSSION
We review factual findings following a preliminary hearing for substantial
evidence and questions of law de novo. Noll II, 9 Wash. App. 2d at 320-21. We
defer to the trial court as the fact finder to weigh the evidence and draw reasonable
inferences therefrom. State v. Perebeynos, 121 Wash. App. 189, 196, 87 P.3d 1216
(2004). As noted above, we held it appropriate to defer to the trial court to make
factual findings rather than act as initial fact finders, due to the complexity of the
factual issues raised in this case. Noll II, 9 Wash. App. 2d at 321.
We remanded for the trial court to enter findings because we did not have
sufficient information to review the court’s ruling on personal jurisdiction. As the
trial court indicated on remand, the task before it was to review the record, find the
facts, and answer the questions set out in our first opinion. The parties agreed
6
No. 77888-9-I/7
that all the evidence to be considered on remand was properly before the court.
Now having before us the relevant findings, our task is to determine whether those
findings support the exercise of personal jurisdiction over Special Electric.
Special Electric contends that the trial court exceeded the scope of remand.
Because the first judge concluded there was no personal jurisdiction over Special
Electric and the second judge concluded the very opposite, Special Electric asks
this court to ignore the court’s findings and affirm the first judge’s order of dismissal.
We decline to do so. Because we had an insufficient factual record to affirm the
court’s order of dismissal, our only alternative would have been to reverse the
order of dismissal in its entirety and allow Special Electric to refile the jurisdictional
motion to dismiss on remand. Had we done so, Special Electric would have been
reassigned to a new judge and would be in the exact same position it finds itself in
now. And we would be reviewing the same trial court’s findings of fact and
conclusions of law as we now undertake in this opinion.
These findings support a conclusion that haling Special Electric into a
Washington court does not violate its due process rights. The due process clause
requires “that individuals have ‘fair warning that a particular activity may subject
[them] to the jurisdiction of a foreign sovereign.’” LG Elecs., 186 Wash. 2d at 176
(alteration in original) (internal quotation marks omitted) (quoting Burger King Corp.
v. Rudzewicz, 471 U.S. 462, 472, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985)).
Washington’s long arm statute, RCW 4.28.185, confers specific personal
jurisdiction over nonresident defendants so long as the exercise of jurisdiction
complies with federal due process. Noll I, 188 Wash. 2d at 411 (citing Shute v.
7
No. 77888-9-I/8
Carnival Cruise Lines, 113 Wash. 2d 763, 766-67, 783 P.2d 78 (1989)). Due process
requires that: (1) purposeful minimum contacts exist between the defendant and
the forum state, (2) the plaintiff’s injuries arise out of or relate to those minimum
contacts, and (3) the exercise of jurisdiction is reasonable, consistent with notions
of fair play and substantial justice. Grange Ins. Ass’n v. State, 110 Wash. 2d 752,
758, 757 P.2d 933 (1988). Here, the focus of the parties’ dispute is whether Noll
established that Special Electric had purposeful minimum contacts with
Washington.
“To establish purposeful minimum contacts, there must be some act by
which the defendant ‘purposefully avails itself of the privilege of conducting
activities within the forum State, thus invoking the benefits and protections of its
laws.’” LG Elecs., 186 Wash. 2d at 177 (quoting Burger King, 471 U.S. at 475). “A
foreign manufacturer or distributor does not purposefully avail itself of a forum
when the sale of its products there is an ‘isolated occurrence’ or when the unilateral
act of a consumer or other third party brings the product into the forum state.” LG
Elecs., 186 Wash. 2d at 177 (quoting World-Wide Volkswagen Corp. v. Woodson,
444 U.S. 286, 295, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980)). But purposeful
availment may be established when a foreign manufacturer seeks to serve the
forum state’s market and places goods into the stream of commerce with intent
that they will be purchased by that state’s consumers. LG Elecs., 186 Wash. 2d at
177-78 (citing J. McIntyre Mach., Ltd., v. Nicastro, 564 U.S. 873, 881-82, 888-89,
131 S. Ct. 2780, 180 L. Ed. 2d 765 (2011); Asahi Metal Indus. Co v. Superior Court,
480 U.S. 102, 109-13, 117-21, 107 S. Ct. 1026, 94 L. Ed. 2d 92 (1987); World-
8
No. 77888-9-I/9
Wide Volkswagen, 444 U.S. at 295-97; Grange Ins. Ass’n, 110 Wash. 2d at 761-62).
Jurisdiction cannot be based on mere foreseeability that a product may end up in
the forum state. Rather, “the defendant’s conduct and connection with the state
must be such that it should reasonably anticipate being haled into court there.” LG
Elecs., 186 Wash. 2d at 178.
In LG Electronics, the court held that the State’s complaint against
companies who manufactured cathode ray tubes (CRTs) was sufficient to establish
a prima facie case of purposeful minimum contacts where the State alleged that
the defendant companies: (1) dominated the global market, (2) sold CRTs into
international streams of commerce with the intent that the CRTs would be
incorporated into millions of CRT products sold across the United States and in
large quantities in Washington, and (3) intended for their price-fixing activities to
elevate the price of CRT products purchased by Washington consumers. 186
Wash. 2d at 182. The court agreed with the State that the “presence of millions of
CRTs in Washington was not the result of chance or the random acts of third
parties, but a fundamental attribute of [the Companies’] businesses.” Id.
In so holding, the court cited Justice Breyer’s concurring opinion in J.
McIntyre, as representing the holding of the Court:
Under J. McIntyre, a foreign manufacturer’s sale of products through
an independent nationwide distribution system is not sufficient,
absent something more, for a State to assert personal jurisdiction
over a manufacturer when only one product enters a state and
causes injury. Id. at 888-89, 131 S. Ct. 2780 (Breyer, J., concurring).
J. McIntyre did not foreclose an exercise of personal jurisdiction over
a foreign defendant where a substantial volume of sales took place
in a state as part of the regular flow of commerce.
9
No. 77888-9-I/10
LG Elecs., 186 Wash. 2d at 181. The court concluded that “[a]n exercise of
jurisdiction based on the allegations in the State’s complaint is not foreclosed by
J. McIntyre” and the State made a prima facie showing of purposeful minimum
contacts. LG Elecs., 186 Wash. 2d at 183, 185.
Justice Breyer’s concurrence in J. McIntyre stated that New Jersey courts
could not establish specific jurisdiction based on a “single isolated sale” even if
accompanied by a national sales effort. 564 U.S. at 888. The concurrence noted
the facts showed no regular flow or regular course of sales in the state, “there is
no ‘something more,’ such as special state-related design, advertising, advice,
marketing, or anything else,” and the plaintiff did not introduce a list of potential
New Jersey customers who might have regularly attended trade shows or
otherwise show that the defendant manufacturer delivered its goods in the stream
of commerce with the expectation that they would be purchased by New Jersey
consumers. J. McIntyre, 564 U.S. at 889.
As noted above, in Noll I, the court declined to decide “if showing actual
knowledge or awareness is necessary, or sufficient, to finding specific personal
jurisdiction in stream of commerce cases” because “Noll failed to allege any action
taken by Special to purposefully avail itself of the benefits and protections of the
Washington market.” 188 Wash. 2d at 416. The court noted that “[t]he only
connection to Washington that Noll alleged was the unilateral act of an out-of-state
third party, Certain-Teed,” and Noll did not allege that Special was aware of
CertainTeed’s connection to Washington or that Special was aware that
CertainTeed delivered any of its pipes outside of California. Id.
10
No. 77888-9-I/11
We hold that establishing purposeful availment for the exercise of personal
jurisdiction in stream of commerce cases in Washington State requires a showing
of actual awareness. See LG Elecs., 186 Wash. 2d at 182 (finding purposeful
availment where defendants sold product “with intent” it would be incorporated in
products “sold across the United States and in large quantities in Washington”).
Special Electric contends that Noll failed to establish purposeful availment under
this test. We disagree.
The trial court engaged in an analysis of the evidence on remand and found
that it demonstrated actual awareness. Specifically the court found:
37. There is no direct evidence that Special Electric knew of
specific sales by Certain-Teed in Washington. However,
substantial circumstantial evidence supports that Special
Electric knew CertainTeed sold asbestos-cement pipe
nationwide, including in Washington.
38. CertainTeed’s 1971 Annual Report stated that it acquired its
asbestos-cement pipe business from Keasby & Mattison as
part of its expansion program, and it “operated five asbestos
cement pipe plants coast to coast.” CP 683-84, 688. Special
Electric has admitted that CertainTeed’s annual reports were
materials that it would have reviewed to determine “who are
we dealing with and what are their markets and what [was] the
scope of their sales.” TR 36. Special Electric also
acknowledged that [it] would be reasonable to presume that
Special Electric did its due diligence on CertainTeed and
CertainTeed’s markets. TR 32. A reasonable commercial
actor such as Special Electric would have understood “coast
to coast” to mean “throughout the United States,” including
Washington. The 1971 annual report also conveyed that
CertainTeed was a large industrial manufacturer, with a
“nationwide network of research, production, sales and
distribution facilities,” and over a hundred facilities throughout
the country.
39. CertainTeed’s 1977 Annual Report stated that it “ranks among
the nation’s top 300 industrial companies,” and that it
“distributes piping system components nationwide.” CP 732-
11
No. 77888-9-I/12
34. The 1977 Annual Report reports a 20% increase in
asbestos-cement pipe sales, attributable primarily to sales in
the Southwest and West. CP 735. The 1977 report stated that
demand for pipe system components, including asbestos-
cement pipe, “was strong on the West Coast.”
40. The court takes judicial notice that “the West Coast” is
commonly understood to include Washington. No evidence in
the record before this court suggests that the term “the West
Coast” as used by Special Electric or CertainTeed has any
other meaning. Special Electric’s contention that
CertainTeed’s “West Coast” market was limited to California
and Arizona (Dkt. Sub 388, Defendant’s Proposed Findings at
¶¶ 12, 14, 20), is strained, not supported by any evidence, and
unreasonable. A reasonable commercial actor in Special
Electric’s position would have reasonably known that
CertainTeed’s strong West Coast sales included sales in
Washington.
41. Referring specifically to asbestos-cement pipe, CertainTeed’s
1977 annual report further stated that increased construction
activity “contributed to the recovery of the asbestos - cement
pipe market with particular momentum gained in the West and
Southwest.” CP 735. The “West” is commonly understood to
include Washington, and the Court finds that a reasonable
commercial actor such as Special Electric would have
reasonably understood that CertainTeed’s market for
asbestos-cement pipe in the West included Washington.
42. CertainTeed’s 1978 Annual Report stated that “A/C pipe” was
“used in one out of three municipalities in the United States.”
CP 722-23, 727. Although this reference did not specify which
municipalities were using asbestos-cement pipe made by
CertainTeed (as opposed to other manufacturers), the report
would have further informed Special Electric as to the extent
of the United States market for asbestos-cement pipe, and it
knew that CertainTeed was serving the entire market. Other
information available to Special Electric indicated that as
much as 79% of the communities in Pacific states, specifically
including Washington, used asbestos-cement pipe.
43. Special Electric kept informed as to CertainTeed’s needs and
product specifications. CP 890-95. Mr. Wareham visited
CertainTeed on several occasions. CP 885-89. Mr. Wareham
took executives from CertainTeed on trips to South Africa to
visit the Gefco mine as a means, among other reasons, of
12
No. 77888-9-I/13
learning more about CertainTeed’s needs and business. CP
896-910. This evidence shows a close working relationship
between Special Electric and CertainTeed and supports a
reasonable inference that Special Electric understood the
scope of CertainTeed’s market for asbestos-cement pipe,
which included substantial sales into Washington.
44. CertainTeed’s sales of asbestos-cement pipe into
Washington were regular and substantial during the time
period in question. CP 1428-64, 174-204. See Paragraphs 35
and 36 above. Although there is no evidence that Special
Electric ever reviewed CertainTeed’s actual invoices, the fact
that such sales occurred, and that there were regular and
substantial increases in sales, supports the likelihood that
Special Electric, as an active and informed participant in the
asbestos-cement pipe market, would have been aware that
CertainTeed was selling asbestos-cement pipe in
Washington.
45. Special Electric’s major asbestos-cement pipe industry
customers, including CertainTeed, were – like Special Electric
– members of the AIA. CP 943-78, 981-90. Between 1975 and
1980, Mr. Wareham attended AIA conferences and meetings
a couple times per year.
46. Special Electric was also very involved with the Asbestos-
Cement Pipe Producers Association (“ACPPA”) of which its
major crocidolite customers, including CertainTeed, were
members.
47. One purpose for Special Electric’s involvement in these
organizations and its attending conferences and meetings
was to acquire information to further its business as a supplier
of asbestos.
48. Special Electric’s involvement in these organizations for the
purpose of acquiring information further supports the
reasonable inference that it would have known that
CertainTeed’s market for asbestos-cement pipe was
nationwide, and that its nationwide market included
Washington.
The court further found that Special Electric understood that the asbestos-cement
pipe industry sold products containing its asbestos nationwide and that
13
No. 77888-9-I/14
“Washington was a target market for the industry.”
The trial court’s findings are reasonable inferences from the evidence and
support the conclusion that Special Electric purposefully availed itself of the
benefits and protections of Washington law. Noll showed that Special Electric was
aware of CertainTeed’s connection to Washington and that Special Electric was
aware that CertainTeed delivered many of its pipes outside of California,
allegations the court noted were lacking in Noll I, 188 Wash. 2d at 416. As in LG
Electronics, Noll demonstrated a regular flow of Special Electric’s asbestos into
Washington State and that the presence of its product in Washington “was not the
result of chance or the random acts of third parties, but a fundamental attribute of
[its] businesses.” 186 Wash. 2d at 182. Accordingly, personal jurisdiction exists over
Special Electric.
We reverse.
WE CONCUR:
14
No. 77888-9-I/15
Candance Noll v. Special Electric Co., Inc., No. 77888-9-I
VERELLEN, J. (dissenting) — I respectfully dissent. One of the fundamental
differences between trial courts and appellate courts is the role of the trial court
judge or jury as fact finder. And yet, there are limited circumstances when the role
of the appellate court extends to factual determinations. A long line of cases permit
de novo review of documentary evidence by an appellate court even where a trial
court has made findings of fact.23 Where a case is decided on documentary
evidence and credibility is not an issue, the appellate court may independently
review evidence and make required findings.24 Notably, Noll acknowledges that
this court retains the authority to undertake the resolution of the factual questions
23 Noll v. Special Elec. Co., Inc., 9 Wash. App. 2d at 317, 444 P.3d 33 (2019);
see, e.g., Serv. Emp. Int’l Union Local 925 v. Univ. of Wash., 193 Wash. 2d 860, 866,
447 P.3d 534 (2019) (conducting de novo review of factual questions where a trial
court made no credibility determinations and made findings of fact only on
documentary evidence) (citing Spokane Police Guild v. Liquor Control Bd., 112
Wash. 2d 30, 35-36, 769 P.2d 283 (1989)); State v. Thetford, 109 Wash. 2d 392, 396,
745 P.2d 496 (1987) (“This court is freer to review factual findings based solely on
documentary evidence, as the trial court was in no better position than the
appellate court to make observations of demeanor.”); State ex rel. Pac. Fruit &
Produce Co., Inc. v. Superior Court for King County, 22 Wash. 2d 327, 331-32, 155
P.2d 1005 (1945) (explaining a trial court’s findings of fact from a special
proceeding were “not in any way binding” because the proceeding was decided
solely on documentary evidence without evaluating witness credibility).
2414A W ASHINGTON PRACTICE, CIVIL PROCEDURE § 33.22, at 458-59 (3d ed.
2018) (citing Bryant v. Joseph Tree, Inc., 119 Wash. 2d 210, 829 P.2d 1099 (1992)).
15
No. 77888-9-I/16
governing the application of specific jurisdiction to Special Electric and “may do so
now.”25
The majority relies on the replacement judge’s findings of fact and applies
the traditional substantial evidence standard of review. But, in my view, the
primary purpose of remanding for the entry of findings of fact was to seek the
factual context relied upon by the now-retired trial judge for his conclusion
Washington state lacked specific jurisdiction over Special Electric. When the
retired judge was unavailable, the replacement judge worked diligently to review
the record and make his own findings of fact. Those findings do not align with the
original trial judge’s conclusions. Our prior ruling did not preclude the use of a
replacement judge, but, under these circumstances, we are not bound by the
replacement judge’s findings.26 I respectfully conclude that this court rather than
a replacement judge should make the factual decisions necessary to resolve the
question of specific jurisdiction.
Although voluminous details are presented, all the key facts are grounded
in undisputed declarations and documents. There are no questions of credibility
nor particular topical concerns.27 The complexity of specific jurisdiction
25 Appellant’s Supp. Br. Opp. Resp’t’s Mot. That Trial Court Exceeded Its
Authority on Remand at 12 (citing W.R.P. Lake Union Ltd. P’ship v. Exterior Servs.
Inc., 85 Wash. App. 744, 750, 934 P.2d 722 (1977)).
26 Serv. Emps. Int’l Union Local 925, 193 Wash. 2d at 866.
27For example, some domestic relations cases are not suited to de novo
review of undisputed documents. See In re Marriage of Rideout, 150 Wash. 2d 337,
351, 77 P.3d 1174 (2003) (reviewing a trial court’s domestic relations decision for
abuse of discretion despite all evidence being documentary because “‘local trial
judges decide factual domestic relations questions on a regular basis’ and
consequently stand in a better position than an appellate judge to decide” fact-
16
No. 77888-9-I/17
jurisprudence does not compel deference to factual findings by a judicial officer
with no greater insight into the undisputed evidence than we have.
I agree with the majority that “establishing purposeful availment for the
exercise of personal jurisdiction in stream of commerce cases in Washington state
requires a showing of actual awareness.”28 We must decide whether Special
Electric was actually aware that CertainTeed was distributing concrete pipe
containing Special Electric’s asbestos to Washington state. And this narrow
question is readily resolved by this court reviewing the undisputed declarations and
documents.
As acknowledged by the replacement judge, there is no direct evidence that
Special Electric was aware CertainTeed’s asbestos concrete pipe products were
flowing to Washington state.29 And the documents reviewed by Special Electric
did not indirectly reveal that information. The references in CertainTeed’s 1971
annual report showed it operated five asbestos cement pipe plants “coast to
coast,”30 but this merely reflects the location of some of its asbestos cement pipe
plants on the coasts in California and Georgia. The 1977 annual report refers to
distributing pipe “nationwide” with sales in the Southwest and West and strong
demand on the “west coast,” but these are merely general geographic references
intensive domestic relations issues) (quoting In re Parentage of Jannot, 149 Wash. 2d
123, 126-28, 65 P.3d 664 (2003) (distinguishing domestic relations cases from
other civil cases and declining to apply de novo review where the trial court’s
decision was based solely on documentary evidence)).
28 Majority at 11.
29 Clerk’s Papers (CP) at 687 (finding of fact (FF) 37).
30 CP at 683-84, 688 (FF 38).
17
No. 77888-9-I/18
with no specific reference to Washington state. And mere aspirations for
nationwide distribution are not adequate for specific jurisdiction based upon the
stream of commerce theory.31 The 1978 CertainTeed annual report refers to use
of asbestos concrete pipe by municipalities in “Pacific states” without indicating
CertainTeed’s share of that market or if municipalities in Washington state were
buying pipe from CertainTeed.32 Nor are other documents compelling. Documents
revealing a close working relationship with Mr. Wareham by virtue of his trips to
South Africa do not show Special Electric’s actual knowledge of CertainTeed’s
sales of asbestos concrete pipe in Washington state. Sales of other CertainTeed
products in Washington state also do not establish awareness of CertainTeed
asbestos concrete pipe sales in Washington state. And there is no evidence that
Special Electric ever saw a 1965 CertainTeed bulletin regarding its sales of pipe
in Washington. Arguably, this evidence could show a supplier should have known
CertainTeed used its asbestos to serve consumers in Washington state, but actual
awareness is required for a court to possess specific jurisdiction over Special
Electric.
Under these unusual circumstances, this court should independently review
the undisputed declarations and documents and not defer to the replacement
judge. To establish specific jurisdiction, Noll had to establish Special Electric was
31 Noll v. American Biltrite Inc., 188 Wash. 2d 402, 414, 395 P.3d 402 (2017)
(citing J. McIntyre Machinery, Ltd. v. Nicastro, 564 U.S. 873, 888-89, 131 S. Ct.
2780, 180 L. Ed. 2d 765 (2011) (Breyer, J., concurring)); State v. L.G. Electronics,
Inc., 186 Wash. 2d 169, 181, 375 P.3d 1035 (2016) (citing J. McIntyre, 564 U.S. at
888-89 (Breyer, J., concurring)).
32 CP at 991-92, 998 (FF 42).
18
No. 77888-9-I/19
actually aware that CertainTeed was distributing asbestos concrete pipe in
Washington state. After reviewing the record, the evidence does not show Special
Electric was actually aware its asbestos was being used by CertainTeed to
construct pipe for distribution in Washington state. Because Noll did not meet her
burden, I would affirm the original trial judge’s decision that there is no basis for
specific jurisdiction.
19