Lunsford v. Saberhagen Holdings, Inc.

• Decision Date: 04 June 2009
• Docket Number: No. 80728-1.,80728-1.
• Citation: 208 P.3d 1092,166 Wn.2d 264
• Parties: Ronald LUNSFORD and Esther Lunsford, Respondents, v. SABERHAGEN HOLDINGS, INC., and First Doe through One Hundreth DOE, Petitioners.
• Court: Washington Supreme Court

208 P.3d 1092

166 Wn.2d 264

Ronald LUNSFORD and Esther Lunsford, Respondents, v. SABERHAGEN HOLDINGS, INC., and First Doe through One Hundreth DOE, Petitioners.

No. 80728-1.

Supreme Court of Washington, En Banc.

Argued October 30, 2008.

Decided June 4, 2009.

Timothy Kost Thorson, Jason Wayne Anderson, Carney Bradley & Spellman, Seattle, for Petitioner.

Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, Cameron O. Carter, Brayton Purcell, LLP, Portland, OR, for Respondent.

James Otis Neet, Jr., Kansas City, MO, Paul Kalish, Crowell & Moring, LLP, Washington, DC, Karen Harned, Elizabeth Milito, N.F.I.B.L.F., Washington, DC, Robin S.

Conrad, Amar Sarwal, Washington, DC, Lynda Mounts, Kenneth Stoller, American Ins. Ass'n, Washington, DC, Mark Behrens, Shook, Hardy & Bacon, LLP, Washington, DC, George W. Keely, Keely, Kuenn & Reid, Chicago, IL, Ann Spragens, Sean McMurrough, Property Casualty Insurers, Des Plaines, IL, Gregg Dykstra, National Ass'n of Mutual Ins. Co., Indianapolis, IN, for amicus curiae on behalf of American Insurance Association.

William Joel Ritzick, Janet L. Rice, Schroeter & Bender, Seattle, for amicus curiae on behalf of Schroeter, Goldmark & Bender.

Bryan Patrick Harnetiaux, Spokane, WA, Tim M. Higgins, Winston & Cashatt, Spokane, WA, for amici curiae on behalf of Washington State Ass'n for Justice Foundation.

FAIRHURST, J.

¶ 1 This case requires us to decide whether strict product liability applies retroactively to a claim arising out of asbestos exposure occurring prior to our adoption of strict product liability. "`Ordinarily, a decision of a court of last resort overruling a former decision is retrospective as well as prospective in its operation, unless specifically declared by the opinion to have prospective effect only.'" State ex rel. Wash. State Fin. Comm. v. Martin, 62 Wash.2d 645, 671, 384 P.2d 833 (1963) (quoting Fla. Forest & Park Serv. v. Strickland, 154 Fla. 472, 476, 18 So.2d 251 (1944)). An exception to this general rule is selective prospectivity, which allows a court to apply a new rule of law to the litigants in the case announcing the new rule and to all litigants whose claims arise after that decision. Claims arising prior to the announcement of the new rule of law continue to be governed under the old—now overruled—rule of law.

¶ 2 In Robinson v. City of Seattle, 119 Wash.2d 34, 830 P.2d 318 (1992), we abolished selective prospectivity. Robinson eliminates selective prospectivity by holding "retroactive application of a principle in a case announcing a new rule precludes prospective application of the rule in any subsequently raised suit based upon the new rule." Id. at 77, 830 P.2d 318 (emphasis omitted).

¶ 3 Saberhagen Holdings, Inc., argues we have implicitly overruled Robinson. According to Saberhagen, before Ronald Lunsford's strict product liability claim, filed by Respondents Ronald and Esther Lunsford, can go forward, the court must apply the Chevron Oil test¹ to determine if strict product liability should have selectively prospective application. Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), overruled in part by Harper v. Va. Dep't of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993). We disagree. This court has not overruled Robinson. Under Robinson, because we have already applied strict product liability retroactively, it applies to all claims arising before our adoption of strict product liability as to manufacturers in 1969² and as to product suppliers in 1975.³ This necessarily includes Lunsford's claims against Saberhagen. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Facts

¶ 4 Lunsford suffers from mesothelioma as a result of his exposure to asbestos over a 29 year period, including nonoccupational exposure through his father, Oakley Lunsford, from 1948 to 1965. Oakley Lunsford worked as an insulator at a Texaco refinery in Anacortes, Washington, during the summer of 1958, where he worked with asbestos insulation products supplied by The Brower Company.⁴ Lunsford claims he was exposed to asbestos fibers Oakley Lunsford brought home on his clothing and tools. Lunsford alleges causes of action in negligence and strict product liability against Saberhagen as Brower's successor in interest.

Procedural History

¶ 5 Saberhagen first moved for partial summary judgment on Lunsford's strict product liability claim in King County Superior Court, arguing Saberhagen was not liable as a matter of law because Lunsford was not a "user" under section 402A of the Restatement (Second) of Torts (1965). The trial court granted Sabotage's motion for summary judgment. The Court of Appeals overturned the trial court, holding that a household member was a "user" for purposes of section 402A if his exposure to the product is reasonably foreseeable. Lunsford v. Saberhagen Holdings, Inc., 125 Wash.App. 784, 792, 106 P.3d 808, 812 (2005).

¶ 6 On remand, Saberhagen sought partial summary judgment on Lunsford's strict product liability claims a second time, arguing that strict product liability should not apply retroactively in this case. The trial court agreed and dismissed Lunsford's strict product liability claims. The Court of Appeals reversed, holding Robinson requires retroactive application of strict product liability to Lunsford's action against Saberhagen. Lunsford v. Saberhagen Holdings, Inc., 139 Wash.App. 334, 347, 160 P.3d 1089 (2007).

¶ 7 Saberhagen asks this court to reverse the Court of Appeals. It claims the Court of Appeals opinion conflicts with this court's decisions in State v. Atsbeha, 142 Wash.2d 904, 16 P.3d 626 (2001), In re Detention of Audett, 158 Wash.2d 712, 147 P.3d 982 (2006), and Jain v. State Farm Mutual Automobile Insurance Co., 130 Wash.2d 688, 926 P.2d 923 (1996), all of which Saberhagen claims implicitly overrule Robinson and its bar against selective prospectivity.

II. ISSUES

A. Whether we have overruled Robinson.

B. Whether strict product liability applies retroactively to allow Lunsford's claim.

III. ANALYSIS

Standard of Review

¶ 8 "We review summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and reasonable inferences from those facts in the light most favorable to the nonmoving party." City of Spokane v. County of Spokane, 158 Wash.2d 661, 671, 146 P.3d 893 (2006) (citing Berrocal v. Fernandez, 155 Wash.2d 585, 590, 121 P.3d 82 (2005)). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). Where, as here, only legal questions are before the court, we review those questions of law de novo. Wash. State Farm Bureau Fed'n v. Gregoire, 162 Wash.2d 284, 300, 174 P.3d 1142 (2007) (citing Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9-10, 43 P.3d 4 (2002)).

A. We have not overruled or limited our holding in Robinson

¶ 9 Judicial decisions may have retroactive, prospective, or selectively prospective application. Robinson, 119 Wash.2d at 74, 830 P.2d 318 (citing James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 535, 111 S.Ct. 2439, 115 L.Ed.2d 481 (1991)). Retroactive application, by which a decision is applied both to the litigants before the court and all cases arising prior to and subsequent to the announcing of the new rule, is "`overwhelmingly the norm.'" Id. (emphasis omitted) (quoting Beam Distilling, 501 U.S. at 535, 111 S.Ct. 2439). Prospective application affects only those cases arising after the announcement of the new rule. Id. Selectively prospective decisions are applied to the litigants before the court, but not to those whose causes of action arose before the announcement of the new rule. Id. at 74-75, 830 P.2d 318. In Robinson, we abolished the selectively prospective application of state appellate decisions. Id. at 77, 830 P.2d 318.

¶ 10 "When questions of state law are at issue, state courts generally have the authority to determine the retroactivity of their own decisions."⁵ Am. Trucking Ass'ns v. Smith, 496 U.S. 167, 177, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (citing Great N. Ry. v. Sunburst Oil & Ref. Co., 287 U.S. 358, 364, 53 S.Ct. 145, 77 L.Ed. 360 (1932)). Historically, Washington has followed the general rule that a new decision of law applies retroactively unless expressly stated otherwise in the case announcing the new rule of law. Martin, 62 Wash.2d at 671, 384 P.2d 833 (citing Strickland, 154 Fla. at 476, 18 So.2d 251); Haines v. Anaconda Aluminum Co., 87 Wash.2d 28, 35, 549 P.2d 13 (1976) (citing S.R. Shapiro, Annotation, Prospective or Retroactive Operations of Overruling Decision, 10 A.L.R.3d 1371, 1384 (1964)); Bradbury v. Aetna Cas. & Sur. Co., 91 Wash.2d 504, 507-08, 589 P.2d 785 (1979); Lewis H. Orland & David G. Stebing, Retroactivity in Review: The Federal and Washington Approaches, 16 Gong. L.Rev. 855, 889 (1980-81) ("Although statements may be found to the contrary, the assumption in Washington cases is that a decision of an appellate court in a civil case has both retroactive and prospective effect unless the decision specifies otherwise or the decision is silent on the point and a subsequent decision considering the first decision holds otherwise." (footnote omitted)); see, e.g., Taskett v. KING Broad. Co., 86 Wash.2d 439, 453, 546 P.2d 81 (1976) (Stafford, C.J., dissenting in part).

¶ 11 In Chevron Oil, the United States Supreme Court established a three factor test for determining whether a new rule of federal law should be applied nonretroactively in a civil case. 404 U.S. 97, 92 S.Ct. 349. The Court held where the following three conditions are met, a court may depart from the presumption of retroactivity to give a new decision either prospective or selectively prospective application: (1) the decision established a new rule of law that either overruled clear precedent upon which the parties relied or was not clearly foreshadowed,⁶ (2) retroactive application would...