Heather Isringhausen Gvillo Dec. 12, 2014, 12:30pm

SEATTLE (Legal Newsline) – A Washington appeals court has ruled against an asbestos claimant attempting to overcome the Washington Product Liability Act by lumping all asbestos exposure together rather than focusing on exposures attributable to each defendant.

The Washington Court of Appeals, Division One, did not agree with the claimant’s approach.

“[The claimant’s] contention that we take into account all of his exposure to asbestos from any source to determine when his claim arise is untenable,” the court stated.

Judge Michael S. Spearman delivered the Dec. 8 opinion affirming dismissal for defendant Pacific Water Works Supply, Inc., but reversing dismissal for CSK Auto, Inc. Judges James Verellen and Ronald E. Cox concurred.  

Plaintiff Ronald Fagg alleges he was exposed to asbestos as a construction worker, naval machinist mate and heavy equipment operator from 1963 through the late 1970s; personal automotive repair jobs using asbestos-containing parts between the 1950s and 1980s; and vacationing in the vicinity of the Libby, Mont., superfund site form the early 1980s to the 1990s before he moved there from 2001 to 2007.

Fagg was diagnosed with asbestosis and asbestos-related pleural disease in October 2009.

Both defendants moved for summary judgment on the grounds that Fagg’s common law claims against them were barred by the Washington Product Liability Act. They claimed they are immune from liability by the Act and that Fagg failed to establish that exposure to their products was a substantial factor in causing his injury.

The trial court agreed and dismissed the claims against both defendants.

Spearman explained that the Act immunizes product sellers from product liability claims except under certain enumerated circumstances.

In cases, such as this one, where the claimant’s exposure is prolonged or continuous, Washington courts consider when “substantially all” of the exposure occurred in determining when the claim arises.

The Act applies unless substantially all of the exposure occurred before July 26, 1981, when it was enacted. There is also no dispute that if the Act applies, the respondents are immune from suit and Fagg’s claims against them were properly dismissed.

Fagg argues that the court should consider all of his asbestos exposures and then determine whether substantially all of his exposures occurred before July 26, 1981. If so, and a defendant’s product was a part of that exposure, then Fagg urges the court to conclude that the Act does not apply.

“Fagg argues that just as a plaintiff need not ‘prove that a particular defendant’s product was the sole cause of the injury, only that it was present in the work environment when the exposure occurred,’ neither should a plaintiff have to prove that substantially all of his or her exposure to asbestos before July 26, 1981 was attributable to a particular defendant, but only that the defendant’s product made up a part of that exposure,” the opinion states.

However, the defendants argue that the court should measure a plaintiff’s exposure to a specific defendant’s products. Only if substantially all of a plaintiff’s exposure to that defendant’s products occurred before the appropriate time period can the court conclude that the Act does not apply, they argued. The appeals court agrees.

“Whether the respondents owe Fagg a duty at all, the breach of which gives rise to his claim, depends on the products alleged to have caused Fagg’s injuries and whether those products were in the respondents’ chain of distribution,” Spearman wrote.

In regards to Pacific Water Works, Fagg alleges he was exposed to asbestos while working for C&D Enterprises for six months from 1979 to 1980 installing transite water mains and hydrants. Then from 1980 to 1985 he worked for Lake Washington Sewer and Water as a backhoe operator and repaired transite pipes. Finally from 1985 to 1990, he worked as a backhoe operator for the City of Kirkland.

The court held that considering the plaintiff’s work history with transite, it is evident that less than 25 percent of the exposures occurred before July 16, 1981.

Therefore, Fagg’s claims against the defendant fall under the Act, and the trial court properly concluded that the claims should be dismissed.

As for CSK, Fagg used auto parts sold by Al’s Auto Supply and Schuck’s Auto Supply, which are subsidiaries of CSK, when performing brake, clutch and gasket repair work on vehicles from the 1950s to the 1980s.

Fagg always bought new Bendix brakes and Victor gaskets at either Al’s or Schuck’s, the opinion states.

When performing his work, Fagg never removed any Bendix or Victor parts that he had previously installed. He also never grinded any of the parts after purchasing them.

The only asbestos dust noted in the opinion included the few times he would sand a small “bump” on a brake part “once in a blue moon,” which would produce a small amount of dust. However, he also used compressed air to blow away dust left from previously installed products, which produced dust clouds.

However, Fagg noted 14 separate occasions where he was exposed to asbestos-containing auto parts purchased from CSK, 13 of which occurred before July 26, 1981.

As a result, the court concluded that because substantially all of the plaintiff’s exposures to CSK products occurred before the necessary date, meaning the Act does not apply for the defendant.

Therefore, the trial court erred when it granted summary judgment for CSK, the opinion says. The appeals court reversed the decision with respect to CSK and remanded the claims for further proceedings.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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