Walston v. Boeing Co.

• Decision Date: 29 January 2013
• Docket Number: No. 42543–2–II.,42543–2–II.
• Citation: 294 P.3d 759
• Court: Washington Court of Appeals
• Parties: Gary G. WALSTON and Donna Walston, husband and wife, Respondents, v. The BOEING COMPANY; and Saberhagen Holding, Inc., as successor to Tacoma Asbestos Company and The Brower Company, Appellants.

294 P.3d 759

Gary G. WALSTON and Donna Walston, husband and wife, Respondents,

v.The BOEING COMPANY; and Saberhagen Holding, Inc., as successor to Tacoma Asbestos Company and The Brower Company, Appellants.

No. 42543–2–II.

Court of Appeals of Washington, Division 2.

Jan. 29, 2013.

William Brendan Murphy, Attorney at Law, Bruce Duplan Campbell, Katherine Carlson Wax, Eric David Miller, Perkins Coie LLP, Seattle, WA, for Appellants.

Timothy Kost Thorson, Carney Badley & Spellman, Seattle, WA, for Defendants.

Matthew Phineas Bergman, Glenn S. Draper, Brian F. Ladenburg, Anna D. Knudson, Bergman Draper Ladenburg, PLLC, John Wentworth Phillips, John Matthew Geyman, Phillips Law Group PLLC, Seattle, WA, for Respondents.

Kristopher Ian Tefft, Association of Washington Business, Olympia, WA, Amicus Curiae on behalf of Assoc. of WA Business and WA Self.

Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, WA, Amicus Curiae on behalf of WA State Labor Counsel.

VAN DEREN, J.

¶ 1 The Boeing Company appeals the trial court's denial of its motion for summary judgment under RCW 51.04.010 and RCW 51.24.020, which provide that workers' compensation is the exclusive remedy for injured employees subject to the industrial insurance act (IIA), title 51 RCW, absent an employer's deliberate intention to cause such injury. Because Boeing met its burden to show that no disputed material facts exist here, the burden shifted to Walston to raise a material factual dispute about whether Boeing had actual knowledge that the complained—of asbestos exposure was certain to cause injury and that Boeing willfully disregarded that knowledge. Walston failed to meet that burden; thus, we reverse the trial court's order and remand for entry of an order granting summary judgment to Boeing.

FACTS

¶ 2 Gary Walston worked in Boeing's hammer shop at plant 2 in Seattle from 1956 to 1992. Hammer shop workers fabricated a variety of metal airplane parts. Walston asserts that “[d]uring his employment at Boeing, he worked with and around asbestos containing products from various sources and inhaled asbestos fibers into his lungs.” Clerk's Papers (CP) at 13. Walston claims that the asbestos exposure at issue occurred when he worked around other employees who were repairing pipe insulation that contained asbestos.¹

¶ 3 The hammer shop had asbestos-insulated pipes running the length of the shop ceiling and from the ceiling to the hammer machines. In January 1985, Boeing assigned maintenance workers to repair the pipe insulation because a white powdery substance determined to be asbestos was flaking and falling from the overhead pipes. The maintenance workers re-wrapped the overhead pipes to contain the flaking asbestos insulation.

¶ 4 While performing this work, the maintenance workers used ventilators and were fully enclosed in protective clothing that the hammer shop workers referred to as “moon suits.” CP at 2014. Walston and the other hammer shop workers continued to work during the repairs without protective clothing or respirators.

¶ 5 The 1985 repairs created visible asbestos dust and debris that fell on Walston and the other hammer shop workers. Walston covered his tool box with plastic to stop the dust from accumulating in it. Hammer shop workers, including Walston and John Stewart, asked their supervisor whether they could leave their workstations or wear protective gear during the pipe repair. The supervisor told them to “go back to work” but recommended that the workers avoid working directly under the overhead repairs.² CP at 1655. Walston said that the repairs lasted approximately one month, but Stewart recalled that the repairs were finished in only a few days.

¶ 6 There is no dispute that Boeing was aware that asbestos was a hazardous material well before the 1985 “moon suit incident” in the hammer shop. Walston's evidence shows that Boeing was aware of the dangers associated with asbestos exposure, including manifestation of asbestos-related diseases decades after initial exposure.³ The record includes memoranda from Boeing industrial hygiene engineers discussing the risks associated with asbestos exposure, surveys and investigations conducted at Boeing to determine levels of exposure, and procedures and recommendations for reducing worker exposure to asbestos.⁴

¶ 7 Between October 1978 and 1986, Boeing received at least three workers' compensation claims based on asbestos-related injuries at Boeing facilities in Renton and Auburn. Also, in 1981, another hammer shop employee, who worked there from 1957 to 1975, sued an asbestos manufacturer based on his developing cancer from asbestos exposure in Boeing's hammer shop.⁵ In the late 1980s, Boeing received similar workers' compensations claims alleging asbestos related injuries, including mesothelioma, which is cancer in the lung lining.

¶ 8 Walston's experts, Dr. Arnold Brody, a cellular biologist; Dr. Richard Lemen, an epidemiologist; and Dr. Carl Brodkin, a physician who examined Walston's medical records; variously opined that exposure to asbestos causes cellular level lung injury that increases the risk of developing an asbestos-related disease.⁶ But these same experts also admitted that no amount of exposure to asbestos is certain to result in disease.

¶ 9 In 2010, Walston was diagnosed with mesothelioma. Walston sued Boeing, alleging that he contracted mesothelioma as a result of his exposure to asbestos while working at Boeing.⁷ Boeing moved for summary judgment dismissing Walston's claims because it was entitled to employer immunity under the exclusivity provisions of the IIA. The trial court denied Boeing's motion for summary judgment. We granted Boeing's petition for discretionary review of the trial court's denial of its summary judgment motion.

ANALYSIS

I. Standard of Review

¶ 10 We review a trial court's denial of a motion for summary judgment de novo. Baker v. Schatz, 80 Wash.App. 775, 782, 912 P.2d 501 (1996). “Summary judgment should only be granted if after considering all the pleadings, affidavits, depositions or admissions and all reasonable inferences drawn therefrom in favor of the nonmoving party, it can be said (1) that there is no genuine issue as to any material fact, (2) that all reasonable persons could reach only one conclusion, and (3) that the moving party is entitled to judgment as a matter of law.” Baker, 80 Wash.App. at 782, 912 P.2d 501.

II. Washington's Industrial Insurance Act

¶ 11 The IIA created a swift and certain no-fault workers' compensation system for injured employees in exchange for granting employers immunity from lawsuits arising from workplace injuries. RCW 51.04.010; Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005). But employers who deliberately injure their employees are not immune from civil suits by employees who are entitled to compensation under the IIA.⁸RCW 51.24.020 provides:

If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.

(Emphasis added.) Washington courts have consistently interpreted RCW 51.24.020 to require proof of the employer's specific intent to injure an employee before the employee can maintain a separate cause of action against a covered employer. Vallandigham, 154 Wash.2d at 27, 109 P.3d 805.

¶ 12 Until 1995, our courts applied the “deliberate intention” exception to the workers' compensation statute only where there had been a physical assault by one worker against another. See, e.g., Perry v. Beverage, 121 Wash. 652, 655, 659–60, 209 P. 1102 (1922), 214 P. 146 (1923) (supervisor struck employee in the face with a water pitcher during an argument); Mason v. Kenyon Zero Storage, 71 Wash.App. 5, 7, 9, 856 P.2d 410 (1993) (forklift driver purposely crushed another worker between two drums). But in 1995, in Birklid v. Boeing Company, our Supreme Court held that “deliberate intention” is not limited to physical assaults but includes incidents where the employer ( 1 ) has “ actual knowledge that an injury is certain to occur ” and (2) “ willfully disregard [ s ] that knowledge ” 127 Wash.2d 853, 865, 904 P.2d 278 (1995). The Court expressly rejected the more lenient “substantial certainty” ⁹ and “conscious weighing” ¹⁰ tests used by other states with similar “deliberate intention” statutory provisions. Birklid, 127 Wash.2d at 865, 904 P.2d 278.

III. Cases Applying the Birklid Standard

¶ 13 In Birklid, Boeing “ ‘[e]mployees complained of dizziness, dryness in nose and throat, burning eyes, and upset stomach[s]’ ” during pre-production testing of a new material containing phenol-formaldehyde. 127 Wash.2d at 856, 904 P.2d 278 (quoting Birklid Clerk's Papers at 115). A Boeing supervisor reported the employees' symptoms, advised that the effects would likely worsen as production and temperatures increased, and requested improved ventilation in the work area. Birklid, 127 Wash.2d at 856, 904 P.2d 278. Boeing denied the request. Birklid, 127 Wash.2d at 856, 904 P.2d 278. Boeing proceeded with production of the new material and, as anticipated, its workers became sick. Birklid, 127 Wash.2d at 856, 904 P.2d 278.

¶ 14 When addressing the “deliberate intention” issue raised in the employees' lawsuit subsequently filed against Boeing, our Supreme Court distinguished all prior cases decided under the “deliberate intention” exception by explaining that in this instance Boeing knew in advance its workers would become ill. Birklid, 127 Wash.2d at 863, 904 P.2d 278. It held that in earlier cases, employers may have been aware that they were exposing workers to unsafe conditions, but workers were not being injured until accidents occurred. Birklid, 127 Wash.2d at 860–61,...