Welch v. Brand Insulations, Inc.
| Docket Number | 83745-1-I |
| Decision Date | 20 June 2023 |
| Parties | David J. WELCH and Linda Welch, husband and wife, Appellants, v. BRAND INSULATIONS, INC. and Haskell Corporation, Respondents, and Air & Liquid Systems Corporation, as Successor by Merger to Buffalo Pumps, Inc.; Atlantic Richfield Company (ARCO); BP America, Inc. ; BP Corporation of North America, Inc., as successor in interest to Amoco, Inc. and American Oil Company; BP Products North Amerca Inc., as successor in interest to Amoco, Inc. and American Oil Company; BW/IP, Inc., f/k/a Borg-Warner Industrial Products, successor-in-interest to Byron Jackson Pumps; Carrier Corporation; Cooper Industries, Inc., f/k/a the Cooper-Bessemer Corporation; Electrolux Home Products, Inc., as successor-in-interest to Copes-Vulcan, Inc.; Flowserve US Inc., solely as successor-in-interest to Edward Valves, Inc.; Foster Wheeler LLC; General Electric Company; Goulds Pumps (IPG), LLC ; IMO Industries, Inc., individually and as successor-in-interest to De Laval Turbine, Inc. and liable for C.H. Wheeler; ITT LLC, as successor-in-interest to Foster Valves; Metalclad Insulation LLC; Metropolitan Life Insurance Company; North Coast Electric Company ; Pfizer, Inc.; P-G Industries, Inc., as successor-in-interest to Pryor Giggey Co., Inc.; Spirax Sarco, Inc.; Tate Andale, LLC ; the Nash Engineering Company; Union Carbide Corporation ; Velan Valve Corporation; Viacomcbs, Inc.; TWC the Valve Company, L.L.C.; Warren Pumps, LLC., Individually and as successor in interest to Quimby Pump Company; Weir Valve & Controls USA Inc., Individually and as successor-in-interest to Atwood & Morrill Co., Inc.; Westinghouse Electric Corporation, as successor-in-interest to B.F. Strutevant Company; the William Powell Company; A.W. Chesterton Company; Caterpillar, Inc.; and Crown Cork & Seal Company, Inc., Defendants. |
| Court | Washington Court of Appeals |
Matthew Phineas Bergman, Vanessa Jane Firnhab Oslund, Justin Olson, Bergman Oslund Udo Little PLLC, 520 Pike St. Ste. 1125, Seattle, WA, 98101-4058, for Appellants.
David Albert Shaw, Williams Kastner & Gibbs, 601 Union St. Ste. 4100, Seattle, WA, 98101-2380, Tyler J. Hermsen, Williams Kastner, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, J. Scott Wood, Virginia Leeper, Gordon Rees Scully Mansukhani LLP, Zackary Adam Paal, Gordon Rees Scully Mansukhani, 701 5th Ave., Ste. 2100, Seattle, WA, 98104-7084, Diane Catherine Babbitt, Lane Powell, P.O. Box 91302, Seattle, WA, 98111, for Respondents.
PUBLISHED OPINION
In Condit v. Lewis Refrigeration Co., 101 Wash.2d 106, 676 P.2d 466 (1984), our Supreme Court adopted a test to determine whether a claim is barred under the construction statute of repose because it arises from the defendant's construction, alteration, or repair of an improvement upon real property. As relevant here, the statute applies only to activities that contribute to the construction of either (1) a structural improvement to real estate or (2) a system that is integrally a normal part of the kind of improvement in question and required for it to function as intended. Id. at 110-11, 676 P.2d 466.
Former welder and pipefitter David Welch and his wife Linda brought this lawsuit against Brand Insulations, Inc. (Brand) and Haskell Corporation (Haskell) for damages arising from Welch's1 alleged exposure to asbestos-containing pipe insulation while working at the Atlantic Richfield Company (ARCO) "Cherry Point" refinery in the 1980s. The trial court granted summary judgment motions by both Brand and Haskell based on the statute of repose.
Applying Condit, we determine that neither defendant presented competent evidence to show that its insulation installation (in Brand's case) or insulation removal (in Haskell's case) contributed to the construction of either (1) a structural improvement in the refinery or (2) a system that is integrally a normal part of a refinery and required for the refinery to function as intended. Accordingly, because Brand and Haskell failed to satisfy their initial burdens on summary judgment, we reverse the trial court's summary dismissal of the Welches’ claims against them and remand for further proceedings consistent with this opinion.
In June 2021, the Welches sued Brand, Haskell, and several other defendants2 for damages arising from Welch's alleged exposure to asbestos from the 1960s into the 1990s. Although the Welches alleged that Welch's exposure occurred at various industrial sites, their claims against Brand and Haskell were based solely on Welch's work at the ARCO Cherry Point petroleum refinery. The Cherry Point refinery was originally built in the early 1970s, and Brand was the subcontractor retained by the general contractor, The Ralph M. Parsons Company (Parsons), to install thermal insulation "in various refinery units." Haskell was a contractor later retained by ARCO to perform various projects at the refinery.
The Welches allege that in the 1980s, Welch was exposed to asbestos-containing pipe insulation while working at the refinery on "turnarounds," which entailed repairing sections of the refinery. Welch testified that he worked on up to two turnarounds each year—one in the fall and one in the spring—and each would take "close to a month, maybe a little longer," for a total of about six times. He recalled working in several different areas of the refinery, including on the "fin-fans" of the "coker section," the "hydrocracker," the "sulfur unit," and the "smelter."
According to Welch, Haskell personnel regularly worked at the Cherry Point refinery when he was there, and he "typically worked in close range to Haskell," whose personnel he could distinguish from other workers because they wore differently colored hats. In his deposition, Welch said that Haskell personnel "did a lot of pipe work" and "fabricated a lot of pipe." He also recalled that Haskell workers were "changing out the insulation" on the pipes. The Welches claimed among other things that Haskell "removed or otherwise disturbed asbestos-containing insulation without adopting safety precautions or following government regulations that it knew or should have known about to reduce or eliminate harm to bystanders." For purposes of this appeal, it is undisputed that Brand installed the insulation at issue during the initial construction of the refinery.
Brand and Haskell each moved for summary judgment, arguing that the Welches’ claims were barred by the construction statute of repose. The trial court agreed. In doing so, it relied on Maxwell v. Atlantic Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), rev. denied, 197 Wash.2d 1005, 483 P.3d 779 (2021), in which Division Two of this court concluded that Brand's activities related to the initial construction of the same refinery at issue here—the Cherry Point refinery—were covered by the statute of repose. The trial court granted Brand's and Haskell's motions and dismissed the Welches’ claims with prejudice.
The Welches appeal.
"Summary judgment is appropriate only if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Rublee v. Carrier Corp., 192 Wash.2d 190, 198, 428 P.3d 1207 (2018). Put another way, summary judgment "should be granted only if, from all the evidence, a reasonable person could reach only one conclusion." Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998) ; cf. Keck v. Collins, 184 Wash.2d 358, 362, 357 P.3d 1080 (2015) ().
"Summary judgment ‘is subject to a burden-shifting scheme.’ " Bucci v. Nw. Tr. Servs., Inc., 197 Wash. App. 318, 326, 387 P.3d 1139 (2016) (quoting Ranger Ins. Co. v. Pierce County, 164 Wash.2d 545, 552, 192 P.3d 886 (2008) ). The moving party bears the initial burden "to prove by uncontroverted facts that there is no genuine issue of material fact." Jacobsen v. State, 89 Wash.2d 104, 108, 569 P.2d 1152 (1977).
If the moving party satisfies its burden, then the burden shifts to the nonmoving party to "set forth specific facts evidencing a genuine issue of material fact for trial." Schaaf v. Highfield, 127 Wash.2d 17, 21, 896 P.2d 665 (1995). If, however, the moving party does not satisfy its initial burden of proof, "summary judgment should not be granted, regardless of whether the nonmoving party has submitted affidavits or other evidence in opposition to the motion." Hash v. Children's Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915, 757 P.2d 507 (1988) ; see also Klossner v. San Juan County, 21 Wash. App. 689, 693, 586 P.2d 899 (1978) ().
We review orders on summary judgment de novo, engaging in the same inquiry as the trial court. Kim v. Lakeside Adult Family Home, 185 Wash.2d 532, 547, 374 P.3d 121 (2016). We consider the evidence and all reasonable inferences therefrom in a light most favorable to the nonmoving party. Schaaf, 127 Wash.2d at 21, 896 P.2d 665. But we consider only the evidence and issues called to the trial court's attention. RAP 9.12.
"A statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred." Wash. State Major League Baseball Stadium Pub. Facs. Dist. v. Huber, Hunt & Nichols-Kiewit Constr. Co., 176 Wash.2d 502, 511, 296 P.3d 821 (2013). Washington's construction statute of repose, RCW 4.16.300, et seq. , first explains the types of claims to which it applies:
RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying,...
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