Rice v. Dow Chemical Co.

• Citation: 875 P.2d 1213,124 Wn.2d 205
• Decision Date: 07 July 1994
• Docket Number: No. 60969-1,60969-1
• Parties: , Prod.Liab.Rep. (CCH) P 14,025 Howard W. RICE and Patricia L. Rice, husband and wife, Appellants, v. DOW CHEMICAL COMPANY and Defendants A Through Z, Respondents.
• Court: United States State Supreme Court of Washington

Page 205

124 Wn.2d 205

875 P.2d 1213, Prod.Liab.Rep. (CCH) P 14,025

Howard W. RICE and Patricia L. Rice, husband and wife, Appellants, v. DOW CHEMICAL COMPANY and Defendants A Through Z, Respondents.

No. 60969-1.

Supreme Court of Washington En Banc.

July 7, 1994.

Stritmatter, Kessler & McCauley, Paul L. Stritmatter, Hoquiam, Richard B. Levenson, Tacoma, for appellants.

Stafford, Frey, Cooper, Ronald S. Bemis, Marcus B. Nash, Seattle, for respondents.

Gregg L. Tinker, Seattle, Bryan P. Harnetiaux, Spokane, amicus curiae for appellants on Behalf of Washington State Trial Lawyers Ass'n.

BRACHTENBACH, Judge.

Plaintiffs appeal from two summary judgment orders, ultimately dismissing their personal injury claims against Defendant, Dow Chemical Company (Dow). The trial court granted the separate summary judgment motions on the grounds that: (1) the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. § 136 et seq., preempts state law tort claims to the extent that they are based on failure to warn; and (2) Oregon law applies to this action and under the applicable Oregon statutes of limitation and repose, Plaintiffs' entire action is barred or extinguished. We hold that Plaintiffs' claims were properly dismissed under Oregon law and, therefore, do not reach the federal preemption issue.

Plaintiff, Howard W. Rice, was a United States Forest Service employee from 1957 to 1985. Plaintiff alleges he was extensively and routinely exposed to herbicides, specifically 2,4-Dichlorophenoxyacetic acid (2,4-D) and 2,4,5-Trichlorophenoxyacetic acid (2,4,5-T), manufactured and sold by Dow, while working in Hebo, Oregon, during the years 1959 through 1963. The herbicides were delivered to Plaintiff's forest service location in Oregon bearing the Dow trademark.

Plaintiff moved with his family to Washington in 1967, and has lived here continuously since. His only claimed contact with a Dow chemical in Washington occurred when he was splashed with a herbicide while testing equipment at the ranger station in Mineral, Washington, in the late 1960's.

In July 1985, Plaintiff learned from his physician that he had chronic lymphocytic leukemia and was informed of the possible connection between his illness and the exposure to Dow's chemicals. Plaintiff filed this lawsuit on June 8, 1988, alleging that his exposure to the herbicides proximately caused him to develop leukemia. Plaintiff sought relief on a number of grounds, including failure to warn of risks associated with use of the products and failure to provide adequate instructions for safe use of the products.

In October 1991, Pierce County Superior Court entered an order granting the Defendant's motion for summary judgment and dismissing Plaintiff's claims to the extent they were based on failure to warn, concluding that such claims were preempted by FIFRA. In March 1992, the court granted Defendant's summary judgment motion, which raised Oregon law for the first time. The court determined that Oregon had the most significant relationship with the action, and that under the applicable statutes of repose and limitation, the action was barred or extinguished. Under the Oregon product liability statute of repose, a "product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption." Or.Rev.Stat. § 30.905(1). It has been in the neighborhood of 30 years since the chemicals were purchased for use or consumption. Further, the Oregon limitation period for product liability actions is 2 years. Or.Rev.Stat. § 30.905(2). Plaintiff discovered that he had leukemia, and the possible link between the disease and the exposure to Dow's products, in July 1985. He commenced this action in June 1988, almost 3 years after discovering his injury. Plaintiff appealed both orders and we accepted certification from the Court of Appeals.

In review of summary judgment, this court engages in the same inquiry as the trial court. Syrovy v. Alpine Resources, Inc., 122 Wash.2d 544, 548 n. 3, 859 P.2d 51 (1993). All facts and reasonable inferences therefrom are to be determined in favor of the nonmoving party. Our Lady of Lourdes Hosp. v. Franklin Cy., 120 Wash.2d 439, 451, 842 P.2d 956 (1993). Contrary to Plaintiff's assertions, issues of law are not resolved in either party's favor, but are reviewed de novo. Caritas Servs., Inc. v. Department of Social & Health Servs., 123 Wash.2d 391, 402, 869 P.2d 28 (1994).

Plaintiff argues that Dow's reliance on Oregon law for the first time on a summary judgment motion was improper as "outside its pleadings and barred by CR 9(k)(1), CR 44.1(a) and RCW 5.24.040". Opening Br. of Appellants, at 6. Plaintiff's assertions are not well taken. There is no requirement in Washington that a party must specifically plead foreign law. CR 9(k)(1) provides:

A party who intends to raise an issue concerning the law of a state, territory, or other jurisdiction of the United States shall set forth in his pleading facts which show that the law of another United States jurisdiction may be applicable, or shall state in his pleading or serve other reasonable written notice that the law of another United States jurisdiction may be relied upon.

CR 44.1 states that a party raising an issue of other state law shall give notice in accordance with CR 9(k). Thus, there are three acceptable methods under which a party may assert possible reliance on sister-state law, one of which is providing "reasonable written notice" that the party may rely upon sister-state law.

The present case offers a good example of why a party need not plead sister-state law, but may provide other written notification of reliance on another state's law. In the complaint there is no reference to Oregon or, indeed, a reference to any state except for Washington. It would be illogical to then require that Defendant plead Oregon law in its answer to the complaint, without any basis for alleging that Oregon law applies. Such an answer might violate CR 11. The Defendant is required, however, to serve reasonable written notice of its reliance on sister-state law. Plaintiff knew from the commencement of the action that the exposure to the chemicals occurred in Oregon; Defendant did not. What is reasonable notice should be determined in light of those facts.

Although Plaintiff's answers to interrogatories in 1988 indicated that there was extensive exposure to the herbicides in Oregon, Plaintiff also claimed exposure in Washington. Not until the first deposition was taken in November 1991 did it become clear that the contact with the chemicals occurred almost entirely in Oregon. Once Defendant learned the facts relevant to this case, Defendant filed the summary judgment motion, pleading Oregon law. Knowing the details of the location of the chemical exposure, it should have come as no surprise to Plaintiff that Defendant would raise an issue of Oregon law.

In Erickson v. Sentry Life Ins. Co., 43 Wash.App. 651, 719 P.2d 160, review denied, 106 Wash.2d 1008 (1986), the court upheld as proper the assertion of sister-state law for the first time in a response to a summary judgment motion. We agree with Erickson and hold that it is reasonable notice under CR 9(k) to raise sister-state law in a summary judgment motion, after learning the facts which indicate that another state's law arguably applies.

Having resolved that proper notice of reliance on Oregon law was given, we turn to the choice of law analysis. To engage in a choice of law determination, there must first be an actual conflict between the laws or interests of Washington and the laws or interests of another state. Burnside v. Simpson Paper Co., 123 Wash.2d 93, 100-01, 864 P.2d 937 (1994). Where there is no conflict between the laws or interests of two states, the presumptive local law is applied. Burnside, at 101, 864 P.2d 937. The conflicting law identified by the parties here are the differences between the Washington and Oregon statutes of limitations and repose.

Although the Oregon limitation period of 2 years, Or.Rev.Stat. § 30.905(2), and the Washington limitation period of 3 years, RCW 7.72.060(3), do meaningfully differ, variations in limitation periods are not subject to conflict of laws methodology. Washington adopted the Uniform Conflict of Laws-Limitations Act (Act) in 1983. Under this Act, the "borrowing statute", RCW 4.18.020, indicates that there is first a determination of which state's substantive law applies before there is any consideration of which state's statute of limitation applies. RCW 4.18.020 states that:

Except as provided by RCW 4.18.040, if a claim is substantively based:

(a) Upon the law of one other state, the limitation period of that state applies; or

(b) Upon the law of more than one state, the limitation period of one of those states, chosen by the law of conflict of laws of this state, applies.

(2) The limitation period of this state applies to all other claims.

After the forum chooses the substantive law of another state, then that state's limitation period will apply. See 15 Lewis H. Orland & Karl B. Tegland, Wash.Prac., Trial Practice § 433, at 145 (1986). As stated by the comment to the Act relating to this provision, limitation periods are "to be governed by the limitations law of a state whose law governs other substantive issues inherent in the claim." Unif.Conflict of Law-Limitations Act § 2 cmt., 12 U.L.A. 63 (Supp.1994).

Plaintiff cites to Tomlin v. Boeing Co., 650 F.2d 1065 (9th Cir.1981) (applying Washington law) in arguing that a court should apply conflict of law analysis to the statutes of limitation issue. However, Tomlin was decided before the Act was adopted. Under the Act, there is no independent choice of law determination of the statutes of limitation issue. See Philip A. Trautman, Choice of Law in Washington--The Evolution Continues, 63 Wash.L.Rev. 69, 97 n. 97 (1988). Further, the...