Orear v. International Paint Co., 24604-6-I

• Decision Date: 17 September 1990
• Docket Number: No. 24604-6-I,24604-6-I
• Citation: 796 P.2d 759,59 Wn.App. 249
• Court: Washington Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 12,711 Charles OREAR, Appellant, v. INTERNATIONAL PAINT COMPANY, a subsidiary of Courtaulds North America, Inc., an Alabama Corporation; the Sherwin-Williams Co., an Ohio corporation; and Devoe Marine Coating Co., Devoe Prufcoat Division, Devoe & Raynolds Co., divisions and subsidiaries of Grow Group, Inc., a New York corporation, Defendants, and Seaport Chemical/3M Supply Co., Inc., a Washington corporation, Respondent.

Page 249

59 Wn.App. 249

796 P.2d 759, Prod.Liab.Rep. (CCH) P 12,711

Charles OREAR, Appellant, v. INTERNATIONAL PAINT COMPANY, a subsidiary of Courtaulds North America, Inc., an Alabama Corporation; the Sherwin-Williams Co., an Ohio corporation; and Devoe Marine Coating Co., Devoe Prufcoat Division, Devoe & Raynolds Co divisions and subsidiaries of Grow Group, Inc., a New York corporation, Defendants and Seaport Chemical/3M Supply Co., Inc., a Washington corporation, Respondent.

No. 24604-6-I.

Court of Appeals of Washington,

Division 1.

Sept. 17, 1990.

Kristin Houser, Mary Alice Theiler, Seattle, for Charles orear

John F. Magnuson, Ron Gardner, Seattle, for Intern. Paint Co.

Edward S. Winskill, Tacoma, for Sherwin-Williams Co. Seaport Chemical.

Richard C. Tallman, Seattle, for Devoe & Grow Group.

WEBSTER, Judge.

Charles Orear appeals a summary judgment dismissal of his product liability claim against Seaport Chemical/Three M Supply Company. The sole issue is whether a product liability claim can accrue before the plaintiff knows or with reasonable diligence should know who manufactured or supplied the defective product.

FACTS

Charles Orear was exposed to epoxy paints and solvents, which he claims were defective, while employed at Todd Pacific Shipyards Corporation between 1980 and 1985. He filed suit against several manufacturers and distributors, including 3M Company, also known as Minnesota Mining and Manufacturing, on July 31, 1986. Orear named 3M based on his memory of a product label. He remembered the label as being 3 to 4 inches across and having three M's, two side by side and one centered on top.

Todd Shipyards refused to identify the manufacturer or distributor of the allegedly defective products, except in response to formal discovery under federal administrative law. Orear and another employee had federal labor law claims pending against Todd when this action was filed. According to Orear's counsel, who also represented the other employee, there was no right to formal discovery until 1986, when one of the labor law claims was set for a hearing before an administrative law judge of the United States Department of Labor. Orear's counsel served interrogatories in relation to this claim on July 24, 1986, asking Todd Shipyards to identify the paint products used by it, including the names of the products' manufacturers and distributors. Before Todd Shipyards' answers were due, the labor law claim was removed from the hearing calendar and Meanwhile, before this action was filed on July 31, 1986, counsel for Orear searched manufacturer indices and corporate listings. The only "3M company" listed was Minnesota Mining and Manufacturing, a Delaware corporation. The Industrial Finishing Buyer's Guide for August 1986 listed 3M as a manufacturer of epoxy resins. This led counsel to believe 3M was the company whose label Orear remembered. Accordingly, counsel named 3M as a defendant in the July 31, 1986, complaint.

                remanded to a deputy commissioner.   According to Orear's attorney, the effect of the remand was to suspend all discovery until February 1988, when the case was again referred to an administrative law judge for a hearing.   Seaport does not dispute this.   Todd Shipyards providedanswers on July 20, 1988, identifying its suppliers;  however, it refused to do so earlier
                

In October and November 1986, 3M asked for specific information to identify the allegedly defective products. In December 1986, 3M said it was having trouble verifying that it manufactured the specified products. In March and September 1987, 3M said it was still checking on this. In March 1988, 3M informed counsel for Orear that there might be another company operating locally under the same name. An attorney for 3M said she would try to obtain more specific information.

Counsel for Orear telephoned the attorney on September 13, 1988, to find out the status of her investigation. Counsel learned that a local company, now called Seaport, previously operated under the 3M name. The national 3M paid the local one to change its name. Counsel agreed to dismiss the national 3M in exchange for an affidavit to this effect.

Seaport's vice president verified that on September 23, 1983, it changed its name from Three M Supply Company to Seaport Chemicals, Inc./Three M Supply Company, Inc. Seaport registered its new name with the Secretary of State. However, it operated merely as Seaport Chemicals, Inc., and omitted the "Three M" designation from its product labels.

Orear amended his complaint to add Seaport as a defendant, with leave of court, on March 6, 1989. Seaport moved for summary judgment, asserting that Orear's suit was time-barred under the 3-year statute of limitations ofRCW 4.16.080 ¹ and 7.72.060, ² because Orear had not met the requirements for relation back under CR 15(c). ³ Orear responded that CR 15(c) was irrelevant because the statute of limitations had not begun to run until he knew or should have known the identity of the defendant responsible for his injury. Since this occurred some time in 1988, the action was timely on the date of the amended complaint adding Seaport as a defendant. The trial court granted Seaport's motion for summary judgment, resulting in this appeal. We reverse.

DISCUSSION

Orear contends Martin v. Patent Scaffolding, 37 Wash.App. 37, 42-45, 678 P.2d 362 (1984) is directly on point. However, Martin is arguably distinguishable, as implied by the court in the following language Respondent argues that the identity of the particular seller is not an essential element of the cause of action. But it is essential that appellant knew or should have known that there was a seller in the business of selling products against whom he had a cause of action.

(Emphasis added). Martin, at 44, 678 P.2d 362. Orear acknowledges this distinction, i.e., between knowledge that a manufacturer or seller exists and knowledge as to who actually manufactured or supplied the defective product.

However, Orear contends the distinction is resolved by Reichelt v. Johns-Manville Corp., 42 Wash.App. 620, 625, 712 P.2d 881 (1986), aff'd, 107 Wash.2d 761, 771, 733 P.2d 530 (1987). In Reichelt, both this court and our Supreme Court implied that a product liability claim does not accrue until the plaintiff knows or with reasonable diligence should know the identity of the manufacturer or supplier of the defective product. Edward Reichelt knew the identities of 14 of 28 defendant manufacturers of asbestos in 1974, and he could have ascertained the identities of the other defendants in 1977, more than three years before he filed suit. Therefore, his action was time-barred.

Reichelt did not necessarily decide the question presented in the instant case, as it was enough for the court to assume, without deciding, that knowledge of each particular defendant's identity was essential to the accrual of the plaintiff's cause of action against each defendant. Also, as Seaport emphasizes, the court did not consider the effect of CR 15(c). Nevertheless, we believe the analysis in Reichelt applies here.

Seaport places principal reliance on Hill v. Withers, 55 Wash.2d 462, 348 P.2d 218 (1960). However, as Orear notes, Hill is a pre-discovery rule case; it is not a product liability case; and most importantly, the plaintiff in Hill knew or should have known the proper party to sue.

Our Supreme Court adopted the discovery rule for compelling reasons in Ruth v. Dight, 75 Wash.2d 660, 453 P.2d 631 (1969). That case involved a surgical sponge left in the plaintiff's abdomen. In a later case, the discovery rule permitted an action by a person who knew at a very early age that she had been blinded by excessive oxygen at birth, but who did not learn until age 21 that the defendants administered more oxygen than was necessary to save her; i.e., that the administration of oxygen was tortious. See Ohler v. Tacoma General Hospital, 92 Wash.2d 507, 598 P.2d 1358 (1979). Reversing the trial court's grant of summary judgment dismissal, the Supreme Court held that "[t]he outcome-determinative fact here is the timing of appellant's discovery of all the elements of her possible cause of action against Tacoma General." (Emphasis added). Ohler, at 511, 598 P.2d 1358. As to another respondent (the manufacturer of an incubator through which the oxygen was administered), the court applied the discovery rule and declared, "[o]ur review of the record leads us to believe that whether appellant discovered all the elements of her possible cause of action against Air Shields more than 3 years before she filed this lawsuit is a genuine issue of material fact." (Emphasis added). Ohler, at 514, 598 P.2d 1358.

Later, the court explicitly formulated the discovery rule in product liability actions as being defendant-specific:

Under Ohler, the cause of action in a products liability case accrues when the plaintiff discovers or ought to have discovered all the essential elements of his possible cause of action. In an action against the seller of a product based on the Restatement (Second) of Torts § 402A (1965) (adopted in this state in Ulmer v. Ford Motor Co., 75 Wash.2d 522, 452 P.2d 729 (1969)) there are three such essential elements: first, that the plaintiff user or consumer suffers physical harm from a product which has a defective condition making it unreasonably dangerous; second, that the defendant seller is engaged in the business of selling such a product; and third, that the product is expected to and does reach the plaintiff without substantial change in the condition in which it is sold. Under Ohler, the cause of action does not accrue until the plaintiff discovers or ought to have discovered all three of these elements.

(Emphasis added). Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 552, 663 P.2d 473 (1983). The reference to "the defendant seller" in the above quote necessarily means the particular defendant seller against whom the...