Rublee v. Carrier Corp.
| Decision Date | 01 November 2018 |
| Docket Number | NO. 94732-5,94732-5 |
| Citation | 428 P.3d 1207 |
| Court | Washington Supreme Court |
| 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 Pioneer Sand & Gravel 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 Miel, Justin Olson, Bergman Draper Oslund, PLLC, 821 2nd Avenue, Suite 2100, Seattle, WA 98104-1516, Leonard J. Feldman, Peterson Wampold Rosato Feldman Luna, 1501 4th Avenue, Suite 2800, Seattle, WA 98101-3677, for Petitioner.
Howard Terry Hall, Zackary Adam Paal, Foley & Mansfield, 999 3rd Avenue, Suite 3760, Seattle, WA 98104-4009, Marissa Alkhazov, Betts Patterson & Mines, P.S., 701 Pike Street, Suite 1400, Seattle, WA 98101-3927, Jenny Anne Durkan, City of Seattle, 600 4th Avenue, 7th Floor, P.O. Box 94749, Seattle, WA 98124-4749, Sheila Birnbaum, Hayden Coleman, Quinn Emanuel Urquhart, 51 Madison Avenue, 22nd Floor, New York, NY 10010, for Respondents.
Jeffrey Lowell Needle, Attorney at Law, 705 2nd Ave. Ste. 1050, Seattle, WA 98104-1759, Robert S. Peck, Center for Constitutional Litigation PC, 50 Riverside Blvd. Suite 12A, New York, NY 10069, for Amicus Curiae on behalf of American Association for Justice.
Michael Akira Yoshida, Jonathan M. Hoffman, MB Law Group LLP, 117 SW Taylor Street, Suite 200, Portland, OR 97204-3029, James A. Henderson, Jr., 1403 Old Winter Beach Road, Vero Beach, FL 32963, for Amicus Curiae on behalf of Product Liability Advisory Council. Inc.
Brian D. Weinstein, Weinstein Couture PLLC, 601 Union Street, Suite 2420, Seattle, WA 98101, Ted W. Pelletier, Michael T. Stewart, Kazan McClain Satterley & Greenwood, 55 Harrison Street, Suite 400, Oakland, CA 94607, for Amicus Curiae on behalf of The Asbestos Disease Awareness Organization.
Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, for Amicus Curiae on behalf of Washington State Association for Justice Foundation.
Philip Albert Talmadge, Talmadge/Fitzpatrick/Tribe, 2775 Harbor Ave. SW, Third Floor, Suite C, Seattle, WA 98126-2138, for Amicus Curiae on behalf of Washington State Labor Council.
¶ 1 This case presents a question of first impression: whether Washington should adopt the so-called "apparent manufacturer" doctrine for common law product liability claims predating the 1981 product liability and tort reform act (WPLA), ch. 7.72 RCW. As set forth in the Restatement (Second) of Torts § 400 (Am. Law Inst. 1965), this doctrine provides 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." Today, we join the clear majority of states that have formally adopted the apparent manufacturer doctrine. Applying the doctrine to the facts of this case, we hold that genuine issues of material fact exist as to whether a reasonable consumer could believe that Pfizer was a manufacturer of the asbestos products that caused Vernon Rublee’s illness and death. We reverse the Court of Appeals.
¶ 2 Margaret Rublee is the surviving spouse of Vernon Rublee and the personal representative of Vernon’s estate.1 Vernon died of mesothelioma
in 2015. Vernon was exposed to asbestos products while working as a machinist at Puget Sound Naval Shipyard (PSNS) between 1966 and 1980. As a machinist, Vernon worked on steam turbines that were insulated with asbestos "lagging." Clerk’s Papers (CP) at 866. PSNS workers periodically "de-lagged" the turbines, removing the existing insulation and replacing it with new insulation cement. Id. The de-lagging process involved pouring bags of insulation cement (commonly called refractories) into buckets or troughs, mixing in water, and stirring the insulation cement mixture with a trowel or hoe. This process created dust that lingered around the workplace, both when the cement was poured from the bag and when it was mixed, exposing PSNS workers to asbestos. Id. at 867.
¶ 3 In the 1960s and early 1970s, PSNS workers used two insulation cement products on the steam turbines—Insulag and Panelag. Vernon, as well as other PSNS workers, observed the name "Pfizer" printed on the product bags. Id. at 869-70. In fact, Quigley—not Pfizer—actually manufactured, sold, and distributed the products. Founded in 1916, Quigley made and sold refractory products for use in steel plants, power plants, and refineries. Quigley trademarked Insulag in 1936 and Panelag in 1945. Id. at 87, 89. Insulag and Panelag contained asbestos until 1974, when Quigley discontinued the sale of both products and replaced them with asbestos-free alternatives. Id. at 97.
¶ 4 Pfizer was founded in 1849 as a manufacturer of pharmaceutical products. Over the next century, Pfizer expanded its product line to chemicals, as well as agricultural and industrial products. In 1968, seeking to "establish[ ] a position in refractory specialties," Pfizer acquired all of Quigley’s capital shares and Quigley became a wholly owned subsidiary of Pfizer. Id. at 950.
¶ 5 According to Pfizer, following the acquisition, Quigley continued to do business as it had always done (until the asbestos products were discontinued in 1974). Resp’t Pfizer Inc.’s Suppl. Br. at 4. Quigley operated the facility where Insulag and Panelag were manufactured and purchased the raw materials for both products from distributors. Quigley continued to handle sales and distribution of Insulag and Panelag by maintaining its own sales employees and receiving and filling customer orders. And, Quigley sales employees communicated with purchasers and distributors on Quigley stationery and signed letters on behalf of Quigley.
¶ 6 There was, however, one undeniable change following Pfizer’s acquisition of Quigley. Following the acquisition, marketing and packaging materials for Insulag and Panelag were reconfigured to include reference to Pfizer. For example, on advertising fliers and other promotional materials, the Pfizer and Quigley logos appeared side by side, with the plural "Manufacturers of Refractories" printed below. CP at 952, 1028. Quigley sales employees distributed pocket calendars to customers that included both the Pfizer and Quigley logos. Id. at 965-66. Quigley’s stationery stated that Quigley was a "Subsidiary of PFIZER, INC." and included a Pfizer logo in the upper left comer. Id. at 963. Pfizer’s logo also appeared in the top left comer of Quigley’s invoices for Insulag and Panelag, and the technical data sheets for both products were changed to include the Pfizer logo above "Quigley Company Inc.," "A Subsidiary of PFIZER INC." Id. at 977, 975, 1686; see also id. at 975 (). Notably, as Vernon and fellow workers at PSNS observed, the bag labels on Insulag and Panelag referenced Pfizer. Post-1968, the bags identified Quigley as the manufacturer and Pfizer as the parent company. Id. at 567, 1821, 1824.
¶ 7 After the hazardous effects of asbestos became widely known, more than 160,000 plaintiffs filed asbestos-related suits against Quigley. Many of these suits also named Pfizer as a defendant. Quigley filed for Chapter 11 bankruptcy in 2004. In 2013, the United States District Court for the Southern District of New York approved Quigley’s reorganization plan creating an asbestos injury trust under section 524(g) of the bankruptcy code to compensate asbestos claimants. Id. at 185. To protect the trust and ensure the equitable distribution of relief, the district court issued a "channeling injunction." Id. at 49-51. The channeling injunction requires asbestos claimants to seek relief solely from the trust and enjoins claimants from suing Quigley for asbestos-related injuries. The injunction also bars asbestos-related claims against Pfizer, if based on Pfizer’s prior ownership, management, or control of Quigley, including claims based on piercing the corporate veil or successor liability. The channeling injunction does not, however, bar claimants from alleging that Pfizer is liable as an "apparent manufacturer" under Restatement (Second) § 400. Id. at 50-51; see In re Quigley Co ., 676 F.3d 45, 59-62 (2d Cir. 2012) ().
¶ 8 In September 2014, Vernon filed a personal injury action in King County Superior Court against Pfizer and several other companies for damages relating to asbestos exposure throughout his employment at PSNS.2 CP at 1-4. As permitted by the channeling injunction, the suit sought to impose liability on Pfizer as an apparent manufacturer under § 400 of the Restatement (Second), asserting that Pfizer represented itself as a manufacturer of the Insulag and Panelag products that caused Vernon’s mesothelioma
. After limited discovery, Pfizer moved for summary judgment on the ground that Rublee could not establish apparent manufacturer liability. Id. at 660.
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