Reichelt v. Johns-Manville Corp.

• Court: Washington Court of Appeals
• Writing for the Court: WILLIAMS; WEBSTER; RINGOLD
• Citation: Reichelt v. Johns-Manville Corp., 712 P.2d 881, 42 Wn.App. 620 (Wash. App. 1986)
• Decision Date: 15 January 1986
• Docket Number: JOHNS-MANVILLE,No. 14374-3-I
• Parties: , Prod.Liab.Rep. (CCH) P 10,897 Edward H. REICHELT and Jane Doe Reichelt, his wife, Appellants, v.CORPORATION; Unarco Industries, Inc.; Fibreboard Corporation; the Celotex Corporation; Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corporation; Combustion Engineering, Inc.; Keene Corporation; Armstrong Cork Company; Armstrong Contracting and Supply Company, a/k/a Armstrong Contracting and Supply, Inc.; H.K. Porter Company, Inc.; Amatex Corporation; Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corporation; Philip Carey Corporation; Standard Asbestos Manufacturing & Insulating Company; Crown Cork & Seal Company, Inc.; Nicolet, Inc., individually and as successor by merger to Keasbey-Mattison Company, a Pennsylvania corporation; Baldwin-Ehret-Hill, Inc.; J.P. Stevens & Company, Inc.; Southern Asbestos Company, a/k/a-d/b/a Southern Textile Company; Asarco, Inc.; GAF Corporation; Ruberoid Company; the Flintkote Company; Owens-Illinois, Inc., a/k/a Owens-Illinois Glass Company; Forty-Eight Insulations, Inc.; Garlock, Inc., Respondents.

Page 620

42 Wn.App. 620

712 P.2d 881, Prod.Liab.Rep. (CCH) P 10,897

Edward H. REICHELT and Jane Doe Reichelt, his wife, Appellants, v. JOHNS-MANVILLE CORPORATION; Unarco Industries, Inc. Fibreboard Corporation; the Celotex Corporation Eagle-Picher Industries, Inc.; Pittsburgh-Corning Corporation; Combustion Engineering, Inc.; Keene Corporation; Armstrong Cork Company; Armstrong Contracting and Supply Company, a/k/a Armstrong Contracting and Supply Inc.; H.K. Porter Company, Inc.; Amatex Corporation Raybestos-Manhattan, Inc.; Owens-Corning Fiberglas Corporation; Philip Carey Corporation; Standard Asbestos Manufacturing & Insulating Company; Crown Cork & Seal Company, Inc.; Nicolet, Inc., individually and as successor by merger to Keasbey-Mattison Company, a Pennsylvania corporation; Baldwin-Ehret-Hill, Inc.; J.P. Stevens & Company, Inc.; Southern Asbestos Company, a/k/a-d/b/a Southern Textile Company; Asarco, Inc.; GAF Corporation; Ruberoid Company; the Flintkote Company; Owens-Illinois, Inc., a/k/a Owens-Illinois Glass Company; Forty-Eight Insulations, Inc.; Garlock, Inc., Respondents.

No. 14374-3-I.

Court of Appeals of Washington, Division 1.

Jan. 15, 1986.

Schroeter, Goldmark & Bender,

William Rutzick, Seattle, for appellants.

Ogden, Ogden & Murphy, James A. Murphy, Seattle, for Johns-Manville Corp.

William C. McLaughlin, Chicago, for Unarco Industries, Inc.

Moren, Lageschulte & Cornell, Charles V. Moren, Seattle, for Amatex Corp.

Billett, Comfort & Rosenow, Barry Mesher, Tacoma, for Celotex/Philip Carey Corp.

Dalton Law Offices, Paul T. Dalton, Seattle, for Combustion Engineering, Inc.

Merrick, Hofstedt & Lindsey, Megan Graves, Seattle, for J.P. Stevens & Co.

Stafford, Frey & Mertel, Charles W. Mertel, Seattle, for Fibreboard Corp.

Williams, Lanza, Kastner & Gibbs, Paul C. Gibbs, Seattle, for Eagle-Picher Ind., Inc.

Murray, Dunham & Murray, Matt Murray, Seattle, for Forty-Eight Insulations, Inc.

Bogle & Gates, Helen Harvey, Seattle, for Owens-Illinois Glass Co.

Dunlap Law Firm, R. Scott Fallon, Seattle, for Flintkote Co.

Hackett, Beecher, Hart, Branom, & Vavrichek, Art Hart, Seattle, for Armstrong Cork Co.

Lee, Smart, Cook, Martin & Patterson, David L. Martin, Seattle, for Owens-Corning Fiberglass Corp.

Perkins, Coie, Stone, Olsen, & Williams, Steven S. Bell, Seattle, for GAF/Ruberoid Co.

Preston, Thorgrimson, Ellis & Holman, Charles E. Perry, Bergman & Hoerschelmann, John Bergmann, Seattle, for Standard Asbestos.

Bett, Patterson & Mines, Michael Mines, Seattle, for Nicolet, Inc.

Garvey, Schubert, Adams & Barer, John R. Allison, Seattle, for Pittsburgh-Corning Corp.

George, Hull & Porter, Laurie Kohli, Seattle, for AC & S.

Lane, Powell, Moss & Miller, Robert Israel, Seattle, for H.K. Porter and Southern Asbestos.

Carney, Stephenson, Bradley, Smith & Mueller, Palmer Robinson, Seattle, for Keene Corp./BEH.

Davis, Wright, Todd, Reise & Jones, Michael R. Green, Seattle, for Garlock, Inc.

Helsell, Fetterman, Martin, Todd & Hokanson, Thomas W. Huber, Seattle, for Asarco, Inc.

Detels, Draper, Madden & Crockett, David R. Antal, Seattle, for Crown Cork & Seal Co., Inc.

Karr, Tuttle, Koch, Campbell, Mawer & Morrow P.S., John J. Soltys, Seattle, for Raymark, a/k/a Raybestos-Manhattan Inc.

WILLIAMS, Judge.

Edward Reichelt brought this products liability action against 28 asbestos manufacturers and distributors, alleging that he developed asbestosis and pulmonary disease as a result of exposure to defendants' products. ¹ Mrs. Reichelt sought damages for loss of consortium. The trial court granted defendants' motion for summary judgment of dismissal on the ground that the Reichelts' claims were barred by the 3-year statute of limitations, RCW 4.16.080(2). The Reichelts appeal.

Between 1953 and 1974, Edward Reichelt worked in Puget Sound area shipyards installing asbestos insulation. In 1957, he began taking some precautions regarding his work habits after a co-worker was diagnosed as having asbestosis due to exposure to asbestos products at work. In the mid-1960's, Reichelt developed a belief that the asbestos material used in pipe coverings was a "dangerous product." Clerk's Papers, at 108. On September 28, 1971, after being examined as part of a medical surveillance program sponsored by his union, Reichelt received a letter from Dr. Irving Tabershaw which stated:

It is our impression that you have mild asbestosis.

In order to protect your workmen's compensation rights under the laws of the State of Washington, you must file a claim within one year of notification of this knowledge. Filing the form in no way affects your ability to work or your continuation at work. It is simply a notification to the State of Washington of the potential situation.

* * *

Please bear in mind that this examination was aimed at the detection of asbestosis as early as possible. At this stage the disease is not necessarily disabling or progressing.

Clerk's Papers, at 118. Reichelt did file a worker's compensation claim with the State, but, as he stated in his deposition, he thought this diagnosis of asbestosis merely meant "[t]hat they had found some asbestos fibers in my lungs." Clerk's Papers, at 93.

In 1974, Reichelt quit his job installing asbestos insulation because, as he stated in his deposition:

with this medical surveillance program we were voluntarily engaged in, 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. There were others. By then, we were aware of the fact that asbestos doesn't diminish after you've been exposed to it.

Clerk's Papers, at 63. Reichelt also stated in his deposition that in 1974 and 1976 he was informed, as part of his training for his new job as an Occupational Safety and Health Act investigator, that "asbestos was considered a dangerous material in certain concentrations" and asbestos was a "hazardous material." Clerk's Papers, at 114.

In 1976, the State Department of Labor and Industries closed the claim Reichelt had filed in 1971. Reichelt responded by letter dated November 1, 1976, which stated:

[my claim] is for the condition of Asbestosis caused by continual exposure to installation 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.

* * *

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.

Clerk's Papers, at 121-22. Reichelt stated in his deposition that this letter overstated his case and he was not suffering any of these symptoms at that time, although his fingers were clubbing, a condition he knew was caused by asbestosis.

In his affidavit in opposition to the manufacturers' motion for summary judgment, Reichelt stated that as of January 1, 1979 he did not know that asbestos products were "unreasonably dangerous," that before October 20, 1977, he should not reasonably have discovered that asbestos products were "unreasonably dangerous," that before October 20, 1977, he did not believe that his condition was functionally limiting--that he had been damaged by his exposure to asbestos products. Clerk's Papers, at 52. William Bailey, an attorney experienced in asbestos litigation, stated in his affidavit that prior to October 20, 1977, he was not aware that asbestos products were "unreasonably dangerous." Clerk's Papers, at 49. In a supplemental answer to defendants' interrogatories, Reichelt listed 14 asbestos manufacturers and distributors whose products he was exposed to during his work installing asbestos insulation. The Reichelts brought this action on October 20, 1980.

The first issue is whether Edward Reichelt's cause of action had accrued by October 20, 1977. A products liability cause of action accrues when the plaintiff discovers or reasonably ought to have discovered that (1) he suffers physical harm from a product which has a defective condition making it unreasonably dangerous, (2) the defendant seller is engaged in the business of selling such a product, and (3) the product is expected to and does reach plaintiff without substantial change in the condition in which it is sold. Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 552, 663 P.2d 473 (1983). ² Because this is an appeal from an order granting summary judgment, the material submitted to the trial court and all reasonable inferences flowing therefrom must be considered in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982).

The physical harm Reichelt alleges that he suffers from is asbestosis. Reichelt knew that he had asbestosis on September 28, 1971, when he received Dr. Tabershaw's letter, and, at least by 1976, he knew that his disease was caused by exposure to asbestos products in his trade. A product is "unreasonably dangerous," and therefore is defective, when it is unsafe to an extent beyond that which would be reasonably contemplated by an ordinary consumer. Ryder's Estate v. Kelly-Springfield Tire Co., 91 Wash.2d 111, 117, 587 P.2d 160, 16 A.L.R. 4th 129 (1978). An ordinary consumer who had been informed by presumably knowledgable persons that a product is "dangerous" and "hazardous," who knew that it caused clubbing of his fingers and who claimed that it had caused him difficulty in breathing would consider that product unsafe to an extent beyond his reasonable expectations.

Reichelt knew the identities of 14 of the 28 defendants by 1974, when he quit his job installing asbestos insulation. By the exercise of reasonable diligence, he could have ascertained the identities of the other defendant...