Macias v. Saberhagen Holdings, Inc.

• Decision Date: 09 August 2012
• Docket Number: No. 85535–8.,85535–8.
• Citation: 282 P.3d 1069
• Court: Washington Supreme Court
• Parties: Leo MACIAS and Patricia Macias, husband and wife, Petitioners, v. SABERHAGEN HOLDINGS, INC., as successor to Tacoma Asbestos Company and The Brower Company; American Optical Corporation; Ametek, Inc.; Mine Safety Appliances Company; North Safety Products, USA, Respondents, Todd Pacific Shipyards Corporation, individually and as successor-in-interest to Todd Shipyards Corporation; Todd Shipyards Corporation, individually and as successor-in-interest to Todd Pacific Shipyards 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; General Electric Company; Goulds Pumps (IPG), Inc.; and Ingersoll–Rand Company, Defendants.

282 P.3d 1069

Leo MACIAS and Patricia Macias, husband and wife, Petitioners,

v. SABERHAGEN HOLDINGS, INC., as successor to Tacoma Asbestos Company and The Brower Company; American Optical Corporation; Ametek, Inc.; Mine Safety Appliances Company; North Safety Products, USA, Respondents,Todd Pacific Shipyards Corporation, individually and as successor-in-interest to Todd Shipyards Corporation; Todd Shipyards Corporation, individually and as successor-in-interest to Todd Pacific Shipyards 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; General Electric Company; Goulds Pumps (IPG), Inc.; and Ingersoll–Rand Company, Defendants.

No. 85535–8.

Supreme Court of Washington, En Banc.

Argued Oct. 20, 2011.

Decided Aug. 9, 2012.

John Wentworth Phillips, John Matthew Geyman, Phillips Law Group PLLC, Matthew Phineas Bergman, Brian F. Ladenburg, Bergman Draper Ladenburg, PLLC, Seattle, WA, for Petitioners.

Paul Joseph Kundtz, Wendy E. Lyon, Daniel Joseph Gunter, Riddell Williams PS, Kevin Carl Baumgardner, Anthony Todaro, Corr Cronin Michelson Baumgardner & Pree, Randy Jarl Aliment, Williams Kastner & Gibbs, Timothy Kost Thorson, Carney Badley & Spellman, Seattle, WA, Timothy Lee Ashcraft, Williams Kastner & Gibbs, Tacoma, WA, Robert Joseph Sexton, Attorney at Law, Toppenish, WA, for Respondents.

Brian Trevor Hodges, Pacific Legal Foundation, Bellevue, WA, Deborah J. La Ferta, Pacific Legal Foundation, Sacramento, CA, amicus counsel for Pacific Legal Foundation.

Bryan Patrick Harnetiaux, Spokane, WA, George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, amicus counsel for Washington State Association.

Mark Bahrens, Cary Silverman, Shook Hardy & Bacon LLP, Quentin Riegel, National Ass'n of Manufacturers, Robin S. Conrad, Kate Comerford Todd, National Chamber Litigation Center, Inc., Lynda Mounts, American Ins. Association, Donald Evans, American Chemistry Council, Washington, DC, James Otis Neet, Jr., Kansas City, MO, Sean Mcmurrough, Prop. Casualty Insurers Assoc. of Am., Des Plaines, IL, amicus counsel for National Association of Manufact., COAlition for Litigation Justice, Chambers of Commerce of the Us O., Property Casualty Insurers Assoc., and American Insurance Association, American Chemistry Council.

MADSEN, C.J.

¶ 1 Plaintiff Leo Macias worked as a tool keeper in a shipyard and his job required that he maintain respirators that other workers wore to filter out dangerous contaminants. Mr. Macias and his wife Patricia Macias brought this suit against the respirator manufacturers, alleging that cleaning and maintaining the respirators exposed Mr. Macias to asbestos, causing him to develop mesothelioma. The plaintiffs claim that the manufacturers owed a duty to warn Mr. Macias of the danger that he could be exposed to harmful asbestos dust when he cleaned and maintained the respirators. The respirator manufacturers moved for summary judgment on the ground that as a matter of law under Simonetta v. Viad Corporation, 165 Wash.2d 341, 197 P.3d 127 (2008), and Braaten v. Saberhagen Holdings, 165 Wash.2d 373, 198 P.3d 493 (2008), they owed no duty to warn. The trial court denied the motion.

¶ 2 The Court of Appeals reversed, holding that under Simonetta and Braaten the defendants did not owe a duty to warn because they did not manufacture the asbestos-containing products that were the source of the asbestos to which Mr. Macias was exposed. We reverse the Court of Appeals.

¶ 3 In Simonetta and Braaten we held that generally a manufacturer does not have a duty to warn of the dangers inherent in a product that it does not manufacture, sell, or supply. However, Simonetta and Braaten do not control the present case because the duty at issue is to warn of the danger of asbestos exposure inherent in the use and maintenance of the defendant manufacturers' own products, the respirators.

FACTS

¶ 4 From 1978 to 2004, Mr. Macias worked as a tool keeper at Todd Shipyards in Seattle. His job was to supply shipyard workers with tools and equipment that they used in their work at the shipyard, among which were respirators manufactured by defendants American Optical Corporation, Mine Safety Appliances Company, and North America Safety Products USA (hereafter manufacturers or respirator manufacturers).

¶ 5 When they completed their shifts, shipyard workers such as pipefitters and welders returned the respirators to the tool room where Mr. Macias worked. These workers wore the respirators to filter various contaminants from the air they breathed, including asbestos, welding fumes, paint fumes, and dust. Different filter cartridges were used for the different contaminants.

¶ 6 Mr. Macias's duties included cleaning the respirators and replacing their filter cartridges. When they were returned to him, he would throw the respirators, many of which had a dusty film on them, into a nearby basket. Sometimes the respirators were bounced off a nearby window, which caused “little poofs of dust.” I Clerk's Papers (CP) at 127. The same thing would occur when the basket was nearly full and another respirator was thrown into it. When the basket was full, Macias would disassemble the respirators, causing “dust, sand, dirt” to “just fly out.” Id. at 128. Macias threw away the dirty filters and then scrubbed the respirators' reusable parts with a nylon brush, rinsed them in a sink, and stacked them in an oven to dry. Mr. Macias handled hundreds of used respirators during busy periods.

¶ 7 In May 2008, Mr. Macias was diagnosed with mesothelioma, a deadly type of cancer associated with asbestos exposure.¹ In June 2008, Mr. and Mrs. Macias filed this personal injury suit against the manufacturers, asserting causes of action in negligence and product liability. Mr. Macias maintained that he did not know he was at risk from exposure to the asbestos dust coating the used respirators and filters and that he never saw a warning to take precautions when handling and maintaining them such as wearing a respirator himself or wetting the respirators before disassembling them. He testified that if he had been warned he would have taken precautions. The plaintiffs presented evidence that the respirator manufacturers knew that inhalation of asbestos was potentially harmful to people and that the respirators would have to be routinely cleaned and the filter cartridges replaced. The plaintiffs pointed out that in an instruction manual one of the defendants specifically warned respirator users that the air-purifying elements had to be replaced in a safe area with uncontaminated, breathable air.

¶ 8 The defendants moved for summary judgment. They pointed out that they did not manufacture the products containing the asbestos to which Mr. Macias was exposed and argued that as a matter of law under Simonetta and Braaten they owed no duty to warn Mr. Macias about the dangers associated with asbestos in another company's product. The trial court denied the motion, finding Simonetta and Braaten distinguishable.

¶ 9 The manufacturers sought interlocutory discretionary review, which the Court of Appeals granted. The Court of Appeals agreed with the manufacturers that our decisions in Simonetta and Braaten foreclose the plaintiffs' failure to warn claims and reversed the trial court's denial of summary judgment. The Court of Appeals determined that because the defendant manufacturers were not in the chain of distribution of the asbestos-containing products that were the source of the asbestos to which Mr. Macias was exposed, they had no duty to warn of the hazards of exposure to asbestos. Macias v. Mine Safety Appliances Co., 158 Wash.App. 931, 244 P.3d 978 (2010). Mr. Macias sought discretionary review of the Court of Appeals' opinion, which we granted.

ANALYSIS

¶ 10 A trial court's denial of summary judgment is reviewed de novo, with the appellate court engaging in the same inquiry as the trial court. Sheikh v. Choe, 156 Wash.2d 441, 447, 128 P.3d 574 (2006); Tiffany Family Trust Corp. v. City of Kent, 155 Wash.2d 225, 230, 119 P.3d 325 (2005). Summary judgment is appropriate if “there is no genuine issue as to any material fact” and “the moving party is entitled to judgment as a matter of law.” CR 56(c).

¶ 11 The plaintiffs asserted failure-to-warn common law product liability and negligence claims and a failure to warn claim under the Washington product liability act (WPLA or Act), chapter 7.72 RCW. The Court of Appeals addressed each of these causes of action in its opinion.

¶ 12 However, Mr. Macias worked as a tool keeper from 1978 to 2004. The WPLA governs all product liability claims arising on or after July 26, 1981. RCW 4.22.920(1). In a case where “substantially all” of the injury-producing events exposing a shipyard worker to asbestos occurred prior to the WPLA's effective date, the Court of Appeals held that the product liability claim did not “arise” after the effective date. Koker v. Armstrong Cork, Inc., 60 Wash.App. 466, 472, 804 P.2d 659 (1991). The same rule was applied in Krivanek v. Fibreboard Corp., 72 Wash.App. 632, 865 P.2d 527 (1993), where substantially all of plaintiff's exposure to asbestos occurred prior to the WPLA's adoption, but he was diagnosed with the injury—mesothelioma—after its adoption. The court held that the WPLA did not apply because the harm resulted from exposure and substantially all of the injury-producing events occurred before the effective date of the Act. Id. at 635, 865 P.2d 527;see also Viereck v. Fibreboard Corp., 81 Wash.App. 579, 584–85, 915 P.2d 581 (1996) (because “substantially all the events producing” mesothelioma from asbestos exposure occurred before 1981, the WPLA was not applicable). Likewise, in Braaten, we noted that the exposure to asbestos products “substantially occurred before the enactment” of the WPLA. Braaten, 165 Wash.2d at 383 n. 4, 198 P.3d 493. We therefore decided ...