OLYMPIA, Wash. (Legal Newsline) – A Washington State appeals court has rejected the arguments of an asbestos defendant that it couldn’t be sued in the state.
On Aug. 19, the Court of Appeals published a previously released decision in the case of the late Donald Noll, finding that Special Electric Company can’t escape liability on jurisdictional grounds.
The case’s first trial judge dismissed the claims against Special Electric but on appeal, the Court of Appeals found the record lacking to reach its own conclusion. When it sent questions back to the trial court, a new judge had taken over for the now-retired first one and ruled the opposite way.
Special Electric argued the new judge exceeded the scope of remand by changing the first’s ruling.
“Because we had an insufficient factual record to affirm the court’s order of dismissal, our only alternative would have been to reverse the order of dismissal in its entirety and allow Special Electric to refile the jurisdictional motion to dismiss on remand,” Judge Cecily Hazelrigg wrote.
“Had we done so, Special Electric would have been reassigned to a new judge and would be in the exact same position it finds itself in now.”
The Court of Appeals asked the second trial judge to answer five questions regarding whether Special Electric knew its asbestos was sold in CertainTeed pipe in Washington.
The new judge found Special Electric was “an active and significant participant” in the market for asbestos, including in Washington, where “a substantial volume of Certain-Teed asbestos-cement pipe containing Special Electric’s asbestos was sold.”
The judge ruled Special Electric knew the CertainTeed pipe was sold in the state.
“The trial court’s findings are reasonable inferences from the evidence and support the conclusion that Special Electric purposefully availed itself of the benefits and protections of Washington law,” the decision says.
Judge James Verellen dissented, however. He took issue with a reliance on findings of fact from the second judge.
“Our prior ruling did not preclude the use of a replacement judge, but, under these circumstances, we are not bound by the replacement judge’s findings,” he wrote.
“I respectfully conclude that this court rather than a replacement judge should make the factual decisions necessary to resolve the question of specific jurisdiction.”
Weinstein Caggiano of Seattle and Simmons Hanly Conroy of Illinois are representing the plaintiff.