Abbay v. Aurora Pump Co.
| Decision Date | 08 August 2011 |
| Docket Number | No. 62399-1-I,62399-1-I |
| Court | Court of Appeals of Washington |
| Parties | GEORGE ABBAY and LYNNE ABBAY, husband and wife, Appellants v. AURORA PUMP COMPANY; CAMERON INTERNATIONAL CORPORATION f/k/a COOPER CAMERON CORPORATION, (sued individually and as successor-in-interest to JOY MANUFACTURING COMPANY); CLEAVER-BROOKS, INC. f/k/a AQUA- CHEM, INC., d/b/a CLEAVER-BROOKS DIVISION; COLTEC INDUSTRIES, INC. (sued individually and as successor-in-interest to FAIRBANKS MORSE ENGINE); CRANE CO. (sued individually and as successor-in-interest to COCHRANE CORPORATION and CHAPMAN VALVE CO.); ELLIOTT TURBO MACHINERY COMPANY a/k/a ELLIOTT COMPANY; FAIRBANKS MORSE PUMP CORPORATION; FMC CORPORATION (sued individually and as successor-in-interest to PEERLESS PUMP COMPANY and CHICAGO PUMP COMPANY); FOSTER WHEELER ENERGY CORPORATION; GENERAL MOTORS CORPORATION (sued individually and as successor-in-interest to DELPHI HARRISON THERMAL SYSTEM and HARRISON RADIATOR); IMO INDUSTRIES, INC. (sued individually and as successor-in-interest to DELAVAL TURBINE, INC., and C.H. WHEELER); LESLIE CONTROLS, INC.; MCWANE INC. (sued individually and as successor-in-interest to KENNEDY VALVE MANUFACTURING COMPANY, KENNEDY VALVE, INC., and KENNEDY VALVE COMPANY); SABERHAGEN HOLDINGS, INC.; STERLING FLUID SYSTEMS, INC. f/k/a PEERLESS PUMP COMPANY; VIKING PUMP, INC.; WARREN PUMPS, LLC (sued individually and as successor-in-interest to QUIMBY PUMP COMPANY); YARWAY CORPORATION (individually and as successor-in-interest to GIMPEL CORPORATION), Respondents, AFTON PUMPS, INC.; ALFA LAVAL, INC. (sued individually and as successor-in-interest to THE DELAVAL SEPARATOR COMPANY and SHARPLES CORPORATION); ALLIS CHALMERS CORPORATION PRODUCT LIABILITY TRUST (as successor-in-interest to ALLIS-CHALMERS CORPORATION); AMERICAN STANDARD, INC., d/b/a AMERICAN STANDARD PRODUCTS, INC. (sued individually and as successor-in-interest to AMERICAN BLOWER CORPORATION); ARMSTRONG INTERNATIONAL, INC.; ASCO VALVE, INC.; BUFFALO PUMPS, INC. (sued individually and as successor-in-interest to BUFFALO FORGE COMPANY); CARVER PUMP COMPANY; CBS CORPORATION f/k/a VIACOM, INC. (sued as successor-by-merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION and also as successor-in-interest to BF STURTEVANT); CLA-VAL CO. COEN COMPANY, INC. (sued individually and as successor-in-interest to COEN MANUFACTURING CORP.); CRANE ENVIRONMENTAL, INC. (sued individually and as successor-in-interest to COCHRANE CORPORATION); CROSBY VALVE, INC.; CROWN CORK & SEAL CO., INC. (sued individually and as successor-in-interest to MUNDET CORK COMPANY); CYCLOTHERM CORPORATION; DURABLA MANUFACTURING COMPANY; EATON HYDRAULICS, INC. (sued individually and as successor-in- interest to VICKERS INC); FLOWSERVE US INC. (as successor-in-interest to PACIFIC PUMPS and BYRON JACKSON PUMP COMPANY); FRYER-KNOWLES, INC.; FRYER-KNOWLES, INC., A WASHINGTON CORPORATION; GARDNER DENVER, INC. (sued individually and as successor-in-interest to JOY MANUFACTURING COMPANY); GARDNER DENVER NASH, L.L.C. f/k/a THE NASH ENGINEERING COMPANY; GARLOCK SEALING TECHNOLOGIES, LLC (sued individually and as successor-in-interest to GARLOCK, INC.); THE GOODYEAR TIRE & RUBBER COMPANY; THE GORMAN-RUPP COMPANY; GOULDS PUMPS, INC.; HARDIE-TYNES, LLC (sued individually and as successor-in-interest to HARDIE-TYNES MANUFACTURING COMPANY); INTERSOLL RAND COMPANY (sued individually and as successor-in-interest to TERRY STEAM TURBINE COMPANY); ITT INDUSTRIES, INC. (sued individually and as successor-in-interest to KENNEDY VALVE MANUFACTURING CO., KENNEDY VALVE, INC., and KENNEDY VALVE CO.); J.T. THORPE & SON, INC.; JOHN CRANE, INC.; M. SLAYEN AND ASSOCIATES, INC.; METALCLAD INSULATION CORPORATION; METROPOLITAN LIFE INSURANCE COMPANY; MUELLER COMPANY; THE NASH ENGINEERING COMPANY; THE NORTHROP GRUMMAN FOUNDATION (sued individually and as successor-in-interest to LITTON INDUSTRIES); PARKER-HANNIFIN CORPORATION (sued individually and as successor-in-interest to SACOMO SIERRA and SACOMO MANUFACTURING CO.); PEERLESS INDUSTRIES INC.; RAPID-AMERICAN CORPORATION (sued individually and as successor-in-interest to PHILIP CAREY MANUFACTURING CORPORATION); SB DECKING, INC. f/k/a SELBY BATTERSBY & CO.; SPIRAX SARCO, INC.; SYD CARPENTER, MARINE CONTRACTOR, INC.; TACO, INC.; TWC THE VALVE COMPANY, L.L.C. (sued individually and as successor-in-interest to THE WALWORTH COMPANY); VELAN VALVE CORPORATION; VIAD CORPORATION f/k/a THE DIAL CORPORATION (sued individually and as successor-in-interest to GRISCOM-RUSSELL COMPANY); WEIL PUMP COMPANY, INC.; WEIR VALVES & CONTROLS USA, INC. f/k/a ATWOOD & MORRILL, Defendants. |
GEORGE ABBAY and LYNNE ABBAY, husband and wife, Appellants
v.
AURORA PUMP COMPANY; CAMERON INTERNATIONAL CORPORATION f/k/a COOPER CAMERON CORPORATION,
(sued individually and as successor-in-interest to JOY MANUFACTURING COMPANY);
CLEAVER-BROOKS, INC. f/k/a AQUA- CHEM, INC.,
d/b/a CLEAVER-BROOKS DIVISION; COLTEC INDUSTRIES, INC.
(sued individually and as successor-in-interest to FAIRBANKS MORSE ENGINE);
CRANE CO. (sued individually and as successor-in-interest to COCHRANE CORPORATION
and CHAPMAN VALVE CO.); ELLIOTT TURBO MACHINERY COMPANY a/k/a ELLIOTT COMPANY;
FAIRBANKS MORSE PUMP CORPORATION; FMC CORPORATION (sued individually
and as successor-in-interest to PEERLESS PUMP COMPANY
and CHICAGO PUMP COMPANY); FOSTER WHEELER
ENERGY CORPORATION; GENERAL MOTORS CORPORATION (sued individually
and as successor-in-interest to DELPHI HARRISON THERMAL SYSTEM and
HARRISON RADIATOR); IMO INDUSTRIES, INC. (sued individually
and as successor-in-interest to DELAVAL TURBINE, INC.,
and C.H. WHEELER); LESLIE CONTROLS, INC.;
MCWANE INC. (sued individually and as successor-in-interest to KENNEDY VALVE MANUFACTURING COMPANY,
KENNEDY VALVE, INC., and KENNEDY VALVE COMPANY); SABERHAGEN HOLDINGS, INC.;
STERLING FLUID SYSTEMS, INC. f/k/a PEERLESS PUMP COMPANY;
VIKING PUMP, INC.; WARREN PUMPS, LLC
(sued individually and as successor-in-interest to QUIMBY PUMP COMPANY);
YARWAY CORPORATION (individually and as successor-in-interest to GIMPEL CORPORATION), Respondents,
AFTON PUMPS, INC.; ALFA LAVAL, INC. (sued individually and
as successor-in-interest to THE DELAVAL SEPARATOR COMPANY and
SHARPLES CORPORATION); ALLIS CHALMERS CORPORATION PRODUCT LIABILITY TRUST
(as successor-in-interest to ALLIS-CHALMERS CORPORATION);
AMERICAN STANDARD, INC., d/b/a AMERICAN STANDARD PRODUCTS,
INC. (sued individually and as successor-in-interest to AMERICAN BLOWER CORPORATION);
ARMSTRONG INTERNATIONAL, INC.; ASCO VALVE, INC.; BUFFALO
PUMPS, INC. (sued individually and as successor-in-interest to BUFFALO FORGE COMPANY);
CARVER PUMP COMPANY; CBS CORPORATION f/k/a VIACOM, INC.
(sued as successor-by-merger to CBS CORPORATION f/k/a WESTINGHOUSE ELECTRIC CORPORATION
and also as successor-in-interest to BF STURTEVANT); CLA-VAL CO.
COEN COMPANY, INC. (sued individually
and as successor-in-interest to COEN MANUFACTURING CORP.);
CRANE ENVIRONMENTAL, INC. (sued individually and
as successor-in-interest to COCHRANE CORPORATION);
CROSBY VALVE, INC.; CROWN CORK & SEAL CO., INC. (sued individually and
as successor-in-interest to MUNDET CORK COMPANY);
CYCLOTHERM CORPORATION; DURABLA MANUFACTURING COMPANY;
EATON HYDRAULICS, INC. (sued individually
and as successor-in- interest to VICKERS INC); FLOWSERVE US INC.
(as successor-in-interest to PACIFIC PUMPS and BYRON JACKSON PUMP COMPANY);
FRYER-KNOWLES, INC.; FRYER-KNOWLES, INC., A WASHINGTON CORPORATION;
GARDNER DENVER, INC. (sued individually and as successor-in-interest to JOY MANUFACTURING COMPANY);
GARDNER DENVER NASH, L.L.C. f/k/a THE NASH ENGINEERING COMPANY;
GARLOCK SEALING TECHNOLOGIES, LLC (sued individually
and as successor-in-interest to GARLOCK, INC.); THE
GOODYEAR TIRE & RUBBER COMPANY;
THE GORMAN-RUPP COMPANY; GOULDS PUMPS, INC.;
HARDIE-TYNES, LLC (sued individually
and as successor-in-interest to HARDIE-TYNES MANUFACTURING COMPANY);
INTERSOLL RAND COMPANY (sued individually
and as successor-in-interest to TERRY STEAM TURBINE COMPANY);
ITT INDUSTRIES, INC. (sued individually and
as successor-in-interest to KENNEDY VALVE MANUFACTURING CO.,
KENNEDY VALVE, INC., and KENNEDY VALVE CO.); J.T. THORPE & SON, INC.;
JOHN CRANE, INC.; M. SLAYEN AND ASSOCIATES, INC.;
METALCLAD INSULATION CORPORATION;
METROPOLITAN LIFE INSURANCE COMPANY; MUELLER COMPANY;
THE NASH ENGINEERING COMPANY; THE NORTHROP GRUMMAN FOUNDATION
(sued individually and as successor-in-interest to LITTON INDUSTRIES);
PARKER-HANNIFIN CORPORATION
(sued individually and as successor-in-interest to SACOMO SIERRA
and SACOMO MANUFACTURING CO.); PEERLESS INDUSTRIES INC.;
RAPID-AMERICAN CORPORATION (sued individually and
as successor-in-interest to PHILIP CAREY MANUFACTURING CORPORATION);
SB DECKING, INC. f/k/a SELBY BATTERSBY & CO.; SPIRAX SARCO, INC.;
SYD CARPENTER, MARINE CONTRACTOR, INC.; TACO, INC.;
TWC THE VALVE COMPANY, L.L.C. (sued individually and
as successor-in-interest to THE WALWORTH COMPANY); VELAN VALVE
CORPORATION; VIAD CORPORATION f/k/a THE DIAL CORPORATION
(sued individually and as successor-in-interest to GRISCOM-RUSSELL COMPANY);
WEIL PUMP COMPANY, INC.; WEIR VALVES & CONTROLS USA, INC.
f/k/a ATWOOD & MORRILL, Defendants.
No. 62399-1-I
COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
FILED: August 8, 2011
Page 5
Schindler J. — George Abbay and his spouse Lynne Abbay (Abbay) appeal summary judgment dismissal of his personal injury lawsuit against manufacturers and suppliers of asbestos-containing products or equipment used on United States Navy vessels at the Puget Sound Naval Shipyard (PSNS).1 In an effort to prevent the respondents from seeking removal to federal court, Abbay disclaimed "any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave, which expressly excludes U.S. Navy vessels." In the briefs submitted in opposition to summary judgment, Abbay clarified that the disclaimer excludes his causes of action under state law for exposure to asbestos while working on U.S. Navy vessels at PSNS. On reconsideration, the trial court applied the rules of grammar in ruling that Abbay disclaimed all state law causes of action that occurred at PSNS, including causes of action from exposure to asbestos on Navy ships. We conclude that grammatical rules do not require interpreting the relative clause, "which expressly excludes U.S. Navy vessels," as only applying to the antecedent noun, "federal enclave," and the meaning of the disclaimer is ambiguous. As clarified in the
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briefs, the disclaimer does not exclude Abbay's state law causes of action from exposure to asbestos while working on U.S. Navy vessels. Accordingly, we need not address whether the trial court erred in ruling that as a matter of law, PSNS in its entirety, is a federal enclave.2 We reverse dismissal of Abbay's lawsuit and remand.3
George Abbay worked for approximately 26 years as a ship rigger on United States Navy vessels that were in dry dock or moored to piers at PSNS. In August 2007, Abbay was diagnosed with malignant pleural mesothelioma, a form of cancer caused by exposure to asbestos. On November 16, 2007, Abbay filed a personal injury lawsuit in state court against a number of manufacturers and suppliers alleging state law negligence and product liability causes of action from exposure to asbestos-containing products used on U.S. Navy vessels.
In an attempt to prevent the respondents from removing the lawsuit to federal
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court and transferring the case to the asbestos multidistrict litigation (MDL) proceedings in the U.S. District Court for the Eastern District of Pennsylvania, Abbay included a disclaimer in the complaint for all causes of action resulting from exposure to asbestos dust in a federal enclave, except state law causes of action from exposure to asbestos while working on U.S. Navy vessels. The disclaimer provides, in pertinent part:
Plaintiffs hereby disclaim any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave, which expressly excludes U.S. Navy vessels.4
The respondents did not seek to remove the case to federal court.
After engaging in discovery, the respondents filed motions for summary judgment dismissal. The respondents pointed to the part of the disclaimer that waives "any cause of action or recovery for any injuries caused by any exposure to asbestos dust that occurred in a federal enclave" to assert they were entitled to dismissal because PSNS, in its entirety, is a federal enclave.5 To establish PSNS was a federal enclave, the respondents relied on federal and state laws governing the federal government's authority to acquire property for PSNS, and numerous exhibits for various parcels of the property comprising PSNS and the dates on which the federal government acquired title to the properties.
In the briefs filed in opposition to the motions for summary judgment, Abbay clarified the meaning of the disclaimer and in particular, the meaning of the language in the disclaimer excluding his state law claims for exposure to asbestos that occurred on
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the Navy ships at PSNS, and states that he "did not disclaim all exposures that occurred within" PSNS.
Abbay explained that the purpose of the disclaimer was to avoid removal to federal court and an effort to "preempt the delays associated with the removal and remand procedures." Abbay conceded he disclaimed "any recovery for exposures to asbestos that took place on land that was a federal enclave and not a ship," but asserts that the disclaimer clearly "does not include exposures that took place aboard navy ships." However, Abbay argued that if the meaning of the disclaimer was ambiguous, he was entitled to clarify the intent and meaning of the disclaimer as a matter of law. In clarifying, Abbay asserts he did not disclaim his state law negligence and products liability claims from asbestos exposure that occurred aboard U.S. Navy ships, regardless of whether PSNS is a federal enclave.
First, plaintiffs did not disclaim all exposures that occurred within Puget Sound Naval Shipyard. Plaintiffs willingly concede that they disclaimed any recovery for exposures to asbestos that took place on...
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