Wright v. 3M Co.
| Decision Date | 13 December 2021 |
| Docket Number | 81289-1-I |
| Court | Court of Appeals of Washington |
| Parties | WAYNE WRIGHT, individually and as personal representative for the estate of WARREN WRIGHT, deceased, Respondent, v. 3M COMPANY, f/k/a MINNESOTA MINING & MANUFACTURING COMPANY; E.J. BARTELLS SETTLEMENT TRUST; SHELL OIL COMPANY; TEXACO, INC.; U.S. OIL & REFINING COMPANY, Defendants, EXXONMOBIL OIL COMPANY, Appellant. |
UNPUBLISHED OPINION
Wright sued ExxonMobil and others for his father's wrongful death from mesothelioma as a result of asbestos exposure in oil refineries while working for an independent contractor Northwestern Industrial Maintenance. The other companies settled, but Mobil proceeded to trial. Mobil raises several issues on appeal pertaining to jury instructions, evidentiary issues, jury selection, and the reasonableness of settlement agreements. We affirm the jury verdict, but vacate the judgment and remand for a new reasonableness hearing.
From the mid 1950's until 1988, Mobil[1] operated a refinery in Ferndale, Washington. In 1979, Northwestern Industrial Maintenance (NWIM) was contracting with Mobil, to perform maintenance jobs at the Mobil refinery in Ferndale. NWIM employed Warren Wright as a working foreman on a crew at the Ferndale facility. Wright was involved in a NWIM job that entailed demolition of insulation from the pipes, pumps, and other equipment in an out of service unit of the refinery. The NWIM workers were informed that the old insulation contained asbestos. During the demolition, the employees took precautions including the use of respirators and wet methods to minimize airborne particles. That job lasted three months.
Wright continued working for NWIM at various refineries until 1988. Wright died in September 2015. An autopsy performed on his lungs revealed that Wright had suffered from mesothelioma.
In January 2018, Wright's son, Wayne Wright, filed a wrongful death suit individually and on behalf of Wright's estate.[2] The lawsuit named defendants Mobil, Shell Oil Company, Texaco Inc., and U.S. Oil and Refining Company who owned the refineries where Wright had worked while employed by NWIM. Wright also included 3M Company, the manufacturer of the face mask worn by Wright and his coworkers, as a defendant.
Shell Texaco, U.S. Oil, and 3M all entered settlement agreements with Wright. Mobil proceeded to trial. The jury returned a $4 million verdict for Wright. The trial court held a reasonableness hearing and determined the settlement agreements with Shell, Texaco, U.S. Oil, and 3M were reasonable. The court then calculated the set-off for the amounts of the settlement and entered a judgment of $2, 270 000.00 plus attorney fees and costs and postjudgment interest. The court denied Mobil's posttrial motions for a judgment as a matter of law and for a new trial. Mobil appeals.
Mobil argues the trial court erred by omitting several jury instructions. Generally, the decision to give a particular jury instruction is within the trial court's discretion. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743 767, 389 P.3d 517 (2017). "Where substantial evidence supports a party's theory of the case, the trial courts are required to instruct the jury on the theory." Id. An appellate court reviews a trial court's decision to give a jury instruction de novo if based on a matter of law or for abuse of discretion if based on an issue of fact. Id.
"Jury instructions (1) cannot be misleading, (2) must allow counsel to argue their theory of the case, and (3) must properly inform the jury of the applicable law, when read as a whole." Spencer v. Badgley Mullins Turner, PLLC, 6 Wn.App. 2d 762, 787, 432 P.3d 821 (2018). An instruction is erroneous if it fails to satisfy these criteria. Id. An erroneous instruction is not reversible unless it is prejudicial. Id.
Prejudice is assumed if the instruction is a clear misstatement of the law, but must be demonstrated if the instruction is merely misleading. Id. at 787-88.
Wright based his negligence claim for asbestos exposure on two discrete theories: (1) Mobil retained control over NWIM and failed to exercise ordinary care in overseeing its work; and (2) Mobil failed to use ordinary care for Wright's safety as an invitee onto its property. The jury returned a verdict for Wright on both theories. As a result, reversal is necessary only if the court's actions rose to the level of prejudicial error for instructions related to both theories.
The parties do not dispute that Wright was an employee of independent contractor NWIM, rather than an employee of Mobil. Instead, Wright argues that Mobil had liability for his asbestos exposure because it retained control of the workplace. The trial court instructed the jury on Wright's proposed instruction for the theory of retained control:
An owner and/or operator of a refinery "retains control" over the work of a contractor when it either (1) retains the right to direct the means and manner in which a contractor works or (2) retains the right to require use of safety precautions or otherwise assumes responsibility for worker safety.
Mobil argues this instruction was erroneous because it permitted the jury to find for Wright "based solely on Mobil's contractual requirement that NWIM follow prevailing safety laws."
"The scope of an employer's liability depends on whether the worker is an independent contractor or an employee." Kamla v. Space Needle Corp., 147 Wn.2d 114, 119, 52 P.3d 472 (2002). Employers are not liable for injuries incurred by independent contractors because the employers cannot control the manner in which independent contractors work. Id.
As an exception to this rule, an employer may be liable to an independent contractor where it has retained the right to direct the manner in which work is performed. Id. Hymas v. UAP Distrib., Inc., 167 Wn.App. 136, 154, 272 P.3d 889 (2012) (citation omitted) (quoting Phillips v. Kaiser Aluminum & Chem. Corp., 74 Wn.App. 741, 750, 875 P.2d 1228 (1994)).
The case law establishes the proper inquiry for whether the employer retains control as "whether there is a retention of the right to direct the manner in which work is performed." Kamla, 147 Wn.2d at 121. The first part of the jury instruction properly reflects the Kamla test. However, the second part of the instruction that allows for a finding of retained control if Mobil "retains the right to require use of safety precautions or otherwise assumes responsibility for worker safety," stems from Kelley v. Howard S. Wright Constr. Co., 90 Wn.2d 323, 330-31, 582 P.2d 500 (1978).
Kelley involved a lawsuit against a general contractor by an injured employee of a subcontractor. Id. at 326. In its contract with the owner of the project, the general contractor "assumed sole responsibility for supervising and coordinating all aspects of the work." Id. at 327. The general contractor agreed to be responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the work." Id. It "had general supervisory and coordinating authority under its contract with the owner, not only for the work itself, but also for compliance with safety standards." Id. at 331.
The court's determination of retained control in Kelley arose because of the general contractor's contractual responsibility for establishing and maintaining safety precautions for the project. See also Straw v. Esteem Constr. Co., 45 Wn.App. 869, 875, 728 P.2d 1052 (1986) (). The significance of actual involvement in a safety measure is confirmed by subsequent cases: "It is one thing to retain a right to oversee compliance with contract provisions and a different matter to so involve oneself in the performance of the work as to undertake responsibility for the safety of the independent contractor's employees." Hennig v. Crosby Grp., Inc., 116 Wn.2d 131, 134, 802 P.2d 790 (1991) (emphasis omitted). The employer must actively involve itself with the operation of safety measures to retain control. Id. Contract language that provides for inspections to ensure compliance with relevant laws and regulations is not enough to constitute retained control. Cano-Garcia v. King County, 168 Wn.App. 223, 237, 277 P.3d 34 (2012).
In this case, the jury instruction allowed the jury to conclude that Mobil retained control because it required NWIM employees to comply with its general safety rules and Occupational Safety and Health Administration (OSHA) regulations. This is far below the contractual obligation for undertaking safety procedures that Kelley identified as the reason for retained control. Moreover, it is directly contrary to the case law establishing that the right to ensure compliance with relevant laws and regulations does not constitute retained control. See Cano-Garcia, 168 Wn.App. at 237. As a result, the retained control jury instruction is a clear misstatement of the law. Such an error is presumed prejudicial and requires reversal. See Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 281, 428 P.3d 1197 (2018).
Mobil argues the trial court also provided an incorrect jury instruction...
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