Reichelt v. Johns-Manville Corp.
| Decision Date | 05 March 1987 |
| Docket Number | No. 52528-5,JOHNS-MANVILLE,52528-5 |
| Court | Washington Supreme Court |
| Parties | , 55 USLW 2511, Prod.Liab.Rep. (CCH) P 11,321 Edward H. REICHELT and Lois Reichelt, Petitioners, v.CORPORATION; Unarco Industries, Inc.; Fibreboard Corp.; The Celotex Corp.; Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corp.; Combustion Engineering, Inc.; Keene Corp.; Armstrong Cork Co.; Armstrong Contracting and Supply Co. a/k/a Armstrong Contracting and Supply, Inc.; H.K. Porter Co., Inc.; Amatex Corp.; Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corp.; Philip Carey Corp.; Standard Asbestos Manufacturing & Insulating Co.; Crown Cork & Seal Co., Inc.; Nicolet, Inc., individually and as successor by merger to Keasbey-Mattison Co., a Pennsylvania corporation; Baldwin-Ehret-Hill, Inc.; J.B. Stevens & Co., Inc.; Southern Asbestos Co., a/k/a-d/b/a Southern Textile Co.; Asarco, Inc.; Gaf Corp.; Ruberoid Co.; the Flintkote Co.; Owens-Illinois, Inc., a/k/a Owens-Illinois Glass Co.; Forty-Eight Insulations, Inc.; Garlock, Inc., Respondents. |
Schroeter, Goldmark & Bender, William Rutzick, Seattle, for petitioners.
Garvey, Schubert, Adams & Barer by Donald P. Swisher, Karr, Tuttle, Koch, Campbell, Mawer & Morrow by Philip A. Talmadge, Seattle, for respondents.
Randall W. Ebberson, Michael C. Walter, Seattle, amicus curiae for respondents Washington Ass'n of Defense Counsel.
At issue in this appeal is whether the trial court erred by dismissing plaintiffs' negligence and loss of consortium claims. On October 20, 1980, Edward and Lois Reichelt sued 28 asbestos manufacturers and distributors for injuries sustained as a result of Edward Reichelt's exposure to asbestos. From 1953 to 1974, Reichelt was an asbestos worker for insulation contractors and distributors in the Puget Sound area. He charged that because of this exposure to asbestos he developed asbestosis and pulmonary disease, which were diagnosed in October 1980.
Reichelt first heard of asbestosis in 1957, when a friend and coworker was diagnosed as having the disease. When Reichelt asked what asbestosis was, his friend replied, Reichelt was concerned and began taking precautions at work. By the mid-1960's Reichelt realized that asbestos was a dangerous product.
On September 28, 1971, after being examined as part of a medical surveillance program sponsored by his union, Reichelt received a letter informing him that he had "mild asbestosis". Reichelt realized that this condition was caused by his exposure to asbestos products. The letter advised Reichelt to file a workman's compensation claim within a year to protect his rights. Reichelt also was informed that "[a]t this stage, the disease is not necessarily disabling or progressing". Reichelt thereupon filed a workman's compensation claim with the State.
After learning he had asbestosis, Reichelt began taking "evasive measures" such as using a respirator to avoid dust. In 1974, he took the "ultimate special care" of quitting his job. As explained in a deposition:
I became aware there was a potential hazard for myself as well as other people, and that was one of the reasons I wanted to get out of the trade.... By then, we were Reichelt was hired by the U.S. Department of Labor as an Occupational Safety and Health Act (OSHA) investigator in 1974. During training seminars in 1974 and 1976 he learned that "asbestos was considered a dangerous material in certain concentrations" and that asbestos "was a hazardous material". During those seminars, Reichelt was trained in OSHA asbestos standards.
aware of the fact that asbestos doesn't diminish after you've been exposed to it. 1
In 1976, the State Department of Labor and Industries closed Reichelt's claim. He protested that action by a November 1, 1976 letter which stated in part:
[My claim] is for the condition of Asbestosis caused by continual exposure to insulation materials containing this substance for the twenty years while I was employed as an asbestos worker. This disease is permanent in nature and the condition does not improve even though a person is no longer exposed to the hazard.
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In July of 1974, I left the asbestos workers trade to avoid further exposure to asbestos dust.
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This is a permanent respiratory impairment detectable by X-ray and other clinical symptoms that has this past year caused me additional breathing difficulty, particularly when climbing stairs, lifting heavy objects and has severely limited my ability to enjoy certain recreational activities.
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... I not only insist my claim remain open but would like your office to consider this letter as a formal claim for compensatory damages for Asbestosis. 2
In a deposition, Reichelt explained that an industrial hygienist helped write the letter and overstated Reichelt's case to keep the claim open. Reichelt said that he did not suffer from the conditions described in the letter when he signed it. One condition he did acknowledge at that time, After the Reichelts filed suit in 1980, defendants jointly moved for summary judgment on the ground that the claims based on products liability, negligence, misrepresentation and loss of consortium were barred by this state's 3-year statute of limitations, RCW 4.16.080(2). Reichelt filed an affidavit in opposition to the motion stating that as of January 1, 1979, he did not know that the defendants might have committed wrongful acts, been negligent, or breached legal duties which proximately caused his asbestos-related condition, and that he did not then know that he might have a claim for damages against the defendants. Lois Reichelt stated in a declaration that "I did not believe on October 20, 1977 that my husband's condition was functionally limiting." The Reichelts also filed an affidavit from an attorney familiar with the development of asbestos-related claims; he stated that attorneys did not become aware of facts showing that asbestos manufacturers were negligent until after October 20, 1977.
however, was a clubbing of his fingers which he knew was caused by asbestosis.
The trial court granted the defendants' motion for summary judgment, finding that Reichelt's products liability claim accrued no later than November of 1976 and was therefore barred by the statute of limitations. The court also ruled that any cause of action based on negligence, misrepresentation or loss of consortium would likewise be time barred.
The Court of Appeals affirmed the trial court's dismissal of the products liability and loss of consortium claims, and dismissed the negligence and misrepresentation claims on the ground that they were inadequately pleaded. 3
The Reichelts only sought review of the Court of Appeals' treatment of their negligence and loss of consortium claims. We granted review thereof pursuant to RAP 13.4(b).
Three issues are presented in this court.
ISSUE ONE. Did the Court of Appeals err in dismissing the negligence claim on the ground that it was inadequately pleaded?
ISSUE TWO. Was the negligence claim properly dismissed, in any event, because barred by the statute of limitations?
ISSUE THREE. Did the Court of Appeals err in ruling, as a matter of law, that Lois Reichelt's loss of consortium claim accrued when Edward Reichelt's products liability claim accrued?
ISSUE ONE.
CONCLUSION. Since the negligence claim was argued by both parties and ruled on by the trial court, it should have been treated as if raised in the pleadings; 4 hence the negligence claim should not have been dismissed on the ground that it was inadequately pleaded.
The starting point for consideration of this issue is CR 15(b):
Amended and Supplemental Pleadings
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(b) Amendments to Conform to the Evidence. When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues.
CR 15(b) is designed to avoid "the tyranny of formalism" that characterized former practice. 5 Where evidence raising issues beyond the scope of the pleadings is admitted without objection, the pleadings will be deemed amended to conform to the proof. 6
The Court of Appeals ruled that even under Washington's liberal rules of pleading, the Reichelts' complaint did not contain direct allegations sufficient to give the defendants notice of the nature of the negligence claim. 7 The Reichelts do not now contend that their complaint gave adequate notice of Edward Reichelt's negligence claim. Rather, they argue that because the issue was argued and ruled upon at the trial court level, it should have been deemed part of the pleadings. We agree.
The record contains a number of references to Reichelt's negligence claim. The affidavits filed in opposition to the motion for summary judgment expressly referred to the defendants' alleged negligence. In a reply to the plaintiffs' memorandum opposing summary judgment, one defendant addressed the negligence claim. Interrogatories filed by the defendants asked the plaintiffs to "[s]tate with specificity your basis for each and every allegation of negligence against each defendant ..." The plaintiffs responded with a detailed answer. Both sides addressed the negligence claim in oral argument, and the trial court ruled that its decision regarding the products liability claim "would also prohibit any cause of action based on negligence." The written order entered by the trial court referred several times to plaintiffs' causes of action.
A somewhat similar situation was presented in Shaffer v. Victoria Station, Inc.,...
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