Louisiana-Pacific Corp. v. ASARCO Inc.

• Decision Date: 13 January 1994
• Docket Number: 92-35148,LOUISIANA-PACIFIC,92-35144,92-35149 and 92-35152,Nos. 92-35061,92-35145,s. 92-35061
• Citation: 13 F.3d 1378
• Parties: CORPORATION; Port of Tacoma, Plaintiffs-Appellees, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellant. v. William FJETLAND; B & L Trucking and Construction Co., Inc.; Industrial Mineral Products, Inc.; Murray Pacific Corporation; Portac, Inc.; Cascade Timber Company; Executive Bark Inc.; Wasser & Winters Company; Eagle Trucking, Inc., Third-Party-Defendants-Appellees.CORPORATION, Plaintiff, v. CASCADE TIMBER COMPANY, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland; B & L Trucking and Construction Co., Inc.; Industrial Mineral Products, Inc.; Murray Pacific Corporation; Portac, Inc., Third-Party Defendants.CORPORATION; Port of Tacoma, Plaintiffs, Portac, INC., Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff/Appellee, William Fjetland, et al., Third-Party Defendants.CORPORATION; Plaintiff, v. MURRAY PACIFIC CORPORATION, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland; B & L Trucking and Construction Co., Inc.; Industrial Mineral Products, Inc., Third-Party Defendants.CORPORATION; Port of Tacoma, Plaintiffs, Wasser & Winters Company, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland, et al., Third-Party Defendants.CORPORATION, Plaintiff, and Port of Tacoma, Plaintiff-Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1378

13 F.3d 1378

LOUISIANA-PACIFIC CORPORATION; Port of Tacoma, Plaintiffs-Appellees, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellant. v. William FJETLAND; B & L Trucking and Construction Co.,

Inc.; Industrial Mineral Products, Inc.; Murray Pacific

Corporation; Portac, Inc.; Cascade Timber Company;

Executive Bark Inc.; Wasser & Winters Company; Eagle

Trucking, Inc., Third-Party-Defendants-Appellees.

LOUISIANA-PACIFIC CORPORATION, Plaintiff, v. CASCADE TIMBER COMPANY, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland; B & L Trucking and Construction Co.,

Inc.; Industrial Mineral Products, Inc.; Murray

Pacific Corporation; Portac, Inc.,

Third-Party Defendants.

LOUISIANA-PACIFIC CORPORATION; Port of Tacoma, Plaintiffs, Portac, INC., Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant-Third-Party Plaintiff/Appellee, William Fjetland, et al., Third-Party Defendants.

LOUISIANA-PACIFIC CORPORATION; Plaintiff, v. MURRAY PACIFIC CORPORATION, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland; B & L Trucking and Construction Co.,

Inc.; Industrial Mineral Products, Inc.,

Third-Party Defendants.

LOUISIANA-PACIFIC CORPORATION; Port of Tacoma, Plaintiffs, Wasser & Winters Company, Third-Party Defendant/Counter-Claimant/Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee, William Fjetland, et al., Third-Party Defendants.

LOUISIANA-PACIFIC CORPORATION, Plaintiff, and Port of Tacoma, Plaintiff-Appellant, v. ASARCO INCORPORATED, Defendant/Third-Party Plaintiff/Appellee.

Nos. 92-35061, 92-35144, 92-35145, 92-35148, 92-35149 and 92-35152.

United States Court of Appeals Ninth Circuit.

Jan. 13, 1994.

Before: WRIGHT, THOMPSON and KLEINFELD, Circuit Judges.

ORDER

The opinion filed September 23, 1993, and published at 6 F.3d 1332 (9th Cir.1993), is amended as follows:

1. At page 1335, the last paragraph on the page which begins "We have jurisdiction under" is amended by deleting the fourth sentence of that paragraph (which sentence begins "Because the remaining WPLA damages") and inserting in its place the sentence: "We remand to the district court the question of when the statute of limitations began to run on the plaintiffs' WPLA claims."

2. At page 1345, subpart B of part III entitled "Remaining Damages Under the WPLA" is deleted and the following subpart B is inserted in its place:

B. Remaining Damages Under the WPLA

Except for the damages awarded to Portac for loss of use of the Portac site, all damages awarded under the WPLA are subsumed within the CERCLA award which we have upheld. Nevertheless, we must determine whether the WPLA damage awards were proper, because the district court awarded the plaintiffs prejudgment interest on these awards at the state law rate, which is greater than the federal rate.

ASARCO challenges the WPLA damage awards on the ground that the WPLA claims are barred by the applicable three-year statute of limitations.

The first lawsuit against ASARCO was filed by Louisiana-Pacific on May 11, 1988. The district court determined that the WPLA causes of action did not accrue until 1986, when the Washington Department of Energy ("WDOE") notified the various plaintiffs that they had to clean up their properties. The district court concluded the WPLA claims were not barred by the statute of limitations.

ASARCO argues the statute of limitations began to run when the plaintiffs first discovered, or should have discovered, their properties were damaged by ASARCO's slag. There was evidence the plaintiffs had meetings with, and calls and letters from, the WDOE concerning the contamination of their properties from slag as early as 1981.

We look to Washington state law to determine when the statute of limitations began to run on the WPLA claims. In North Coast Air Serv., Ltd. v. Grumman Corp., 111 Wash.2d 315, 759 P.2d 405 (1988), the Washington Supreme Court held that in products liability actions, a cause of action accrues when a claimant discovers, "or in the exercise of due diligence should have discovered, a factual causal relationship of the product to the harm." Id. at 319, 759 P.2d at 407. Stated differently, the statute of limitations begins to run when a claimant first learns, or should have learned, of the essential elements of the possible cause of action. Rose v. A.C. & S., Inc., 796 F.2d 294, 296 (9th Cir.1986); Ohler v. Tacoma General Hosp., 92 Wash.2d 507, 511, 598 P.2d 1358, 1360 (1979). Where a claimant "has notice of facts sufficient to prompt a person of average prudence to inquire," the claimant "is deemed to have notice of all facts which reasonable inquiry would disclose." Vigil v. Spokane County, 42 Wash.App. 796, 800, 714 P.2d 692, 695 (1986). Just when a claimant knows or should know the elements of its cause of action is a question of fact. North Coast Air, 111 Wash.2d at 319, 759 P.2d at 407.

The essential elements of a products liability claim under Washington law are duty, breach of duty, causation, and damage or injury. Rose, 796 F.2d at 296; Hibbard v. Gordon, Thomas, Honeywell, Malanca, Peterson and O'Hern, 118 Wash.2d 737, 747, 826 P.2d 690, 695 (1992); Ohler, 92 Wash.2d at 511, 598 P.2d at 1360. Here, the district court held that the statute of limitations began to run when the WDOE ordered the plaintiffs to clean up their properties, not when they first learned their properties were contaminated by ASARCO's slag. The district court reasoned that until the plaintiffs were required to incur response costs, they were unaware of the damages they had suffered under the WPLA and of the injury to their properties. We disagree.

In assessing the damage element, the statute of limitations begins to run when the claimant first discovers, or should have discovered, some damage, not necessarily the full extent of the damage:

"Where an injury, although slight, is sustained in consequence of the wrongful act of another, and the law affords a remedy therefor, the statute of limitations attaches at once. It is not material that all the damages resulting from the act shall have been sustained at that time, and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date." [citations omitted]

Steele v. Organon, Inc., 43 Wash.App. 230, 234, 716 P.2d 920, 922 (1986). See also Zaleck v. Everett Clinic, 60 Wash.App. 107, 802 P.2d 826 (1991).

The full extent of damage or loss need not be known, so long as the claimant is aware of some injury; "it is uncertainty as to the fact of damage, rather than its amount, which negatives the existence of a cause of action. Moreover, neither the speculative nor uncertain character of damages nor the difficulty of proof will toll the period of limitation." Steele, 43 Wash.App. at 235, ...