Rublee v. Carrier Corp.
| Decision Date | 26 June 2017 |
| Docket Number | No. 75009-7-I,75009-7-I |
| Citation | 199 Wash.App. 364,398 P.3d 1247 |
| Court | Washington Court of Appeals |
| Parties | Margaret RUBLEE, individually and as personal representative of the Estate of Vernon D. Rublee, Petitioner, v. CARRIER CORPORATION; Air & Liquid Systems Corporation, as successor by merger to Buffalo Pumps, Inc.; 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; Elliott Company; General Electric Company; IMO Industries, Inc., individually and as successor in interest to De Laval Turbine, Inc.; Ingersoll-Rand Company; Lone Star Industries, Inc., individually and as successor in interest to Pioner Sand & Company; Metropolitan Life Insurance Company; Saberhagen Holdings, Inc.; Union Carbide Corporation; and Warren Pumps, LLC, individually and as successor in interest to Quimby Pump Company, Defendants, Pfizer, Inc., Respondent. |
Matthew Phineas Bergman, Chandler H. Udo, Colin Mieling, Bergman Draper Oslund, PLLC, 821 2nd Ave., Ste. 2100, Seattle, WA, 98104-1516, for Appellant.
Howard Terry Hall, Zackary Adam Paal, Foley & Mansfield, 999 3rd Ave., Ste. 3760, Seattle, WA, 98104-4009, Marissa Alkhazov, Betts Patterson & Mines, P.S., 701 Pike St., Ste. 1400, Seattle, WA, 98101-3927, Jenny Anne Durkan, Quinn Emanuel, 600 University St., Ste. 2800, Seattle, WA, 98101-4123, Sheila Birnbaum, Hayden Coleman, Quinn Emanuel Urquhart, 51 Madison Ave., 22nd Floor, New York, NY, 10010, for Respondent.
Leach, J.¶1 Margaret Rublee appeals the summary judgment dismissal of her wrongful death action against Pfizer Inc. She seeks to impose liability on Pfizer as an "apparent manufacturer" under Restatement (Second) of Torts § 400 (Am. Law Inst. 1965), claiming that Pfizer represented itself as a manufacturer of products that caused her husband's mesothelioma
. Because Rublee's evidence does not create a genuine issue of material fact about Pfizer's status as an apparent manufacturer, we affirm.
FACTS
¶2 Vernon Rublee died of mesothelioma
in 2015. His wife, appellant Margaret Rublee, survives him.
¶3 Vernon1 was a machinist at Puget Sound Naval Shipyard (PSNS) from 1965 to 1980. He worked on steam turbines that were insulated with asbestos "lagging." Other workers periodically replaced this lagging. To do this, they tore off the existing insulation and then "re-lagged" the turbine. To prepare the lagging, they poured bags of insulation cement, or refractories, "in a trough or a bucket and mix[ed] it up."2 This created dust that would linger at the worksite, exposing those working there to asbestos.
¶4 The workers at PSNS used two refractory products, Insulag and Panelag. Vernon and other PSNS workers testified to seeing "Pfizer" on the product bags.
¶5 Quigley Company Inc. actually manufactured Panelag and Insulag. Quigley trademarked Insulag in 1936 and Panelag in 1945. Both contained asbestos until the early 1970s when, faced with growing health concerns, Quigley replaced them with asbestos-free versions.
¶6 Pfizer acquired Quigley as a wholly owned subsidiary in 1968. According to Pfizer officers, Quigley continued to operate as a separate corporation, continued to manufacture both products, continued to own the plant where it made them, and continued to buy the raw materials used in them. Pfizer also submitted evidence that Quigley continued to handle sales and distribution of these products by maintaining its own sales employees and receiving and filling customers' orders. Quigley sales employees continued to communicate with purchasers and distributors on Quigley stationery and sign letters on behalf of Quigley. The stationery stated that Quigley was a "Subsidiary of PFIZER, INC." and included a Pfizer logo in the upper-left corner. Quigley invoices included the same information. Purchasers and distributors continued to send orders and letters to "Quigley Company, Inc." And the product distributors advertised themselves as distributors for "Quigley Co." The labels on bags of Insulag and Panelag identified Quigley as the product manufacturer and stated that it was a subsidiary of Pfizer. Quigley continued to submit forms and distribute safety and promotional materials that identified Insulag and Panelag as Quigley products.
¶7 Quigley filed for bankruptcy in 2004.3 By then, over 160,000 workers had sued the company for injuries caused by asbestos.4 In 2013, the United States District Court for the Southern District of New York approved a reorganization plan that created an asbestos injury trust to compensate claimants.5 The court enjoined all parties from suing Quigley for asbestos-related injuries. This "channeling injunction" also prevents asbestos-related injury claims against Pfizer based on its ownership, management, or control of Quigley, including claims based on "piercing the corporate veil" or successor liability theories.6 But the channeling injunction does not bar claimants from alleging that Pfizer is liable as an apparent manufacturer.7
¶8 Rublee sued Pfizer and several other companies for damages.8 The trial court dismissed the claims against Pfizer by summary judgment. This court granted discretionary review on the issue of Pfizer's alleged apparent manufacturer liability.9
¶9 At least two plaintiffs have brought apparent manufacturer claims against Pfizer in the United States District Court for the Western District of Washington. In Turner v. Lockheed Shipbuilding Co. 10 and Sprague v. Pfizer. Inc. ,11 that court dismissed the claims at summary judgment. The Ninth Circuit stayed an appeal in Sprague pending this appeal.
STANDARD OF REVIEW
¶10 We review an order granting summary judgment de novo, making the same inquiry as the trial court.12 We affirm summary judgment when no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law.13 We view the facts and all reasonable inferences from them in the light most favorable to the nonmoving party.14 A genuine issue of material fact exists if reasonable minds could differ about the facts controlling the outcome of the lawsuit.15 The nonmoving party "must set forth specific facts showing a genuine issue" and "may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value."16
ANALYSIS
¶11 Rublee relies on section 400 of Restatement (Second) to establish Pfizer's liability. Section 400 states that "[o]ne who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer." The legal community commonly calls this "apparent manufacturer liability."
¶12 Apparent manufacturer liability predates the doctrine of strict liability for harms caused by unreasonably dangerous goods.17 Some courts have concluded that since both doctrines aim to remedy the same harms, strict product liability has in effect "absorbed" the apparent manufacturer doctrine.18 Others have expanded the apparent manufacturer doctrine to include actors that would not be strictly liable because they are outside the good's chain of distribution, such as trademark licensors.19 The Washington legislature incorporated both the apparent manufacturer doctrine and strict product liability in the 1981 Washington product liability act (WPLA), chapter 7.72 RCW.20 Preexisting law governs claims that, like Rublee's, arose before the effective date of this act, July 26, 1981.21
¶13 First, we must decide whether § 400 applies to claims that arose before the WPLA took effect. No Washington appellate court has adopted § 400. Our Supreme Court has adopted similar sections of Restatement (Second) .22 This court cited § 400 in a 1975 decision but did not adopt it.23 And the majority of jurisdictions to consider § 400 have adopted it.24 From this history, the United States District Court for the Western District of Washington has twice concluded that the Washington Supreme Court would adopt § 400.25 We agree. For purposes of this appeal, we assume that the Washington Supreme Court would apply § 400 when presented with the appropriate case.
¶14 Because no Washington court has addressed apparent manufacturer liability under § 400, this case presents an issue of first impression. For persuasive authority, we look to other courts' applications of § 400.
¶15 Courts generally have applied one of three tests for apparent manufacturer liability: objective reliance, actual reliance, and "enterprise liability."26 We do not need to decide which of these tests, if any, our Supreme Court would adopt because Rublee has not identified evidence sufficient to satisfy any of them.
¶16 The majority of courts to adopt apparent manufacturer liability have applied the objective reliance test.27 This test asks "whether a reasonable consumer would have relied upon a label or advertising materials of a product in purchasing it."28 A court can answer this question "from the vantage point of an ordinary, reasonable consumer or from the perspective of a reasonable purchaser, in the position of the actual purchaser."29 Pfizer contends that we should apply the test from the viewpoint of the agents who actually purchased Insulag and Panelag for steel mills, power plants, and shipyards like PSNS. Rublee asserts that we should instead ask whether an ordinary user of Insulag and Panelag would think Pfizer manufactured them.
¶17 We agree with Pfizer. Courts applying the objective reliance test appear to have done so uniformly from the viewpoint of the "purchasing public." In the classic apparent manufacturer case, where a consumer sues the retailer or distributor that sold a harmful good to the consumer, the purchaser would also be an "ordinary user."30 But in cases where a sophisticated industrial entity purchased the product, courts have applied the test from the viewpoint of a "reasonable purchaser" in that position.31
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Rublee v. Carrier Corp.
...evidence did not create a genuine issue of material fact about Pfizer’s status as an apparent manufacturer. Rublee v. Carrier Corp. , 199 Wash. App. 364, 383, 398 P.3d 1247 (2017). The panel initially considered whether § 400 applies in Washington and decided to "assume that the Washington ......