Lunsford v. Saberhagen Holdings, Inc.

160 P.3d 1089

139 Wn. App. 334

Ronald LUNSFORD and Esther Lunsford, Appellants, v. SABERHAGEN HOLDINGS, INC., First Doe through One Hundredth Doe, Respondents.

No. 57293-8-I.

Court of Appeals of Washington, Division 1.

June 25, 2007.

Zachary B. Herschensohn, James E. Shadduck, Attorney at Law, Portland, OR, for Appellants.

Timothy Kost Thorson, Neal J. Philip, Carney Badley Smith & Spellman, Seattle, WA, for Respondents.

William Joel Rutzick, Schroeter Goldmark & Bender, Janet L. Rice, Attorney at Law, Seattle, WA, for Amicus Curiae on behalf of Goldmark & Bender Schroeter.

APPELWICK, C.J.

¶ 1 At issue is whether strict product liability retroactively applies to claims arising from injuries caused by exposure to asbestos that occurred before Washington's adoption of strict product liability. We conclude because strict product liability was retroactively applied to litigants in previous asbestos exposure cases, it retroactively applies to all subsequent litigants. It cannot be selectively prospectively applied. The trial court erred when it held as a matter of law that Saberhagen cannot be held liable to Lunsford under a strict liability theory. We reverse and remand.

FACTS

¶ 2 Ronald Lunsford suffers from mesothelioma. He and his wife, Esther Lunsford (together, Lunsford) contend that this was caused in part by respirable asbestos released from insulation supplied by the Brower Company/Saberhagen Holdings, Inc. The claims in this appeal concern only household exposure to asbestos in 1958, carried in Lunsford's father's clothing from his employment at the Texaco refinery in Anacortes, Washington.

¶ 3 In its first appearance in the court below, Saberhagen moved for summary judgment, arguing that because Lunsford himself was not a "user or consumer" of a defective product, he was not entitled to strict liability coverage. The trial court agreed and entered partial summary judgment. Lunsford appealed. On appeal, Saberhagen argued that the trial court correctly dismissed Lunsford's strict product liability claims because he failed to show that he was a "user" or "consumer" of Brower-supplied asbestos products within the meaning of Restatement (Second) of Torts § 402A. This court reversed, holding that, "policy rationales support application of strict liability to a household family member of a user of an asbestos-containing product, if it is reasonably foreseeable that household members would be exposed in this manner." Lunsford v. Saberhagen Holdings, Inc., 125 Wash.App. 784, 793, 106 P.3d 808 (2005) (Lunsford I). Whether Lunsford fit into that category was for the jury to decide — it was incorrect for the trial court to conclude as a matter of law that Saberhagen could not reasonably foresee that Lunsford would come into contact with its asbestos.

¶ 4 In that same appeal, Saberhagen, for the first time, also raised the argument that when two Washington appellate cases, Ulmer and Tabert, adopted § 402A strict product liability, it was a new rule that should not be applied retroactively under a three-part test from Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971); see also Seattle-First Nat'l Bank v. Tabert, 86 Wash.2d 145, 148-50, 542 P.2d 774 (1975); Ulmer v. Ford Motor Co., 75 Wash.2d 522, 531-32, 452 P.2d 729 (1969). Because Saberhagen had not presented its retroactivity argument to the trial court below, this court declined to address that issue, leaving it to Saberhagen to raise on remand.

¶ 5 On remand, Saberhagen brought this argument before the court in its second motion for summary judgment. There, Saberhagen contended that "[b]ecause § 402A was not the law of Washington in 1958, and because there was no other applicable theory of strict liability at that time, as a matter of law Saberhagen cannot be held liable to plaintiffs under a strict liability theory." On October 21, 2005, the trial court granted Saberhagen's motion for partial summary judgment. Lunsford appeals.

ANALYSIS

I. Summary Judgment Standard

¶ 6 On review of summary judgment courts engage in the same inquiry as the trial court. Highline Sch. Dist. v. Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 (1976). Summary judgment is appropriate if there is no issue of material fact and the moving party is entitled to judgment as a matter of law. Police Guild v. City of Seattle, 151 Wash.2d 823, 830, 92 P.3d 243 (2004). The moving party bears this burden of proof. Young v. Key Pharm., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). Based on this standard, Saberhagen bears the burden of proof that it was entitled to judgment as a matter of law.

II. Review on Appeal

¶ 7 Saberhagen contends that Lunsford is attempting to raise the retroactivity argument, and should be precluded from doing so because he did not raise this argument below. Generally, failure to raise an issue before the trial court precludes a party from raising it on appeal. Smith v. Shannon, 100 Wash.2d 26, 37, 666 P.2d 351 (1983); RAP 2.5. But if an issue raised for the first time on appeal is "arguably related" to issues raised in the trial court, a court may exercise its discretion to consider newly-articulated theories for the first time on appeal. See State Farm Mut. Auto. Ins. Co. v. Amirpanahi, 50 Wash.App. 869, 751 P.2d 329 (1988).

¶ 8 As noted above, Saberhagen first raised the issue of retroactive application of § 402A in the appeal of Lunsford I. There, Saberhagen argued that

[w]hile § 402A was eventually adopted and applied to manufacturers . . . in the 1969 Ulmer decision, and was applied to product sellers . . . in the 1975 Tabert decision, it would be fundamentally unfair to Saberhagen to retroactively impose upon its business activities and conduct in 1958 duties and liabilities that did not exist yet and would not come into existence for another 17 years.

¶ 9 On remand, Saberhagen argued that "[b]ecause § 402A was not the law of Washington in 1958, and because there was no other applicable theory of strict liability at that time, as a matter of law Saberhagen cannot be held liable to plaintiffs under a strict liability theory." Lunsford, characterizing Saberhagen's argument as a "retroactivity" argument, countered that "[i]n recognition of these long-standing rules, the courts of this State have frequently, without caveat, applied strict liability to asbestos actions in which the plaintiff's exposure occurred prior to the publication of Restatement § 402A." Lunsford goes on to list five cases in which plaintiffs recovered on theories of strict product liability for asbestos exposure occurring at least in part before 1958. Finally, in the summary judgment hearing, Lunsford's counsel argued "[b]ut the fact is those exposures occurred prior to the adoption of either one [Ulmer or Tabert] in '68 or in '75. And by implication, the court of appeals has consistently applied strict liability to those exposures that have occurred prior."

¶ 10 Saberhagen's objection is not well taken. Saberhagen asserts that strict liability should not be applied to exposures occurring before the adoption of § 402A in Ulmer and Tabert. This is a question of prospective versus retroactive application. Lunsford recognized Saberhagen's argument for what it was and responded. The issue of retroactive application of § 402A is properly before us.

III. Adoption of Strict Liability for Product Defects

¶ 11 The Washington Product Liability Act (WPLA) does not govern Lunsford's claim because he was exposed to asbestos before its adoption. Mavroudis v. Pittsburgh-Corning Corp., 86 Wash.App. 22, 33-34, 935 P.2d 684 (1997) (a cause of action "arises" when the plaintiff was exposed to asbestos, not when he discovered his injury); Koker v. Armstrong Cork, Inc., 60 Wash.App. 466, 472, 804 P.2d 659 (1991) (applying the law in effect prior to the WPLA because the plaintiff's claim arose prior to that act).

¶ 12 The parties disagree as to whether Restatement (Second) of Torts § 402A (1965) retroactively applies to Lunsford's claim. Section 402A reads:

Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

¶ 13 In 1969, the Washington Supreme Court, after extensive review of product liability cases beginning in 1913, adopted the strict liability contained in § 402A as the law of this jurisdiction. Ulmer, 75 Wash.2d 522, 531-32, 452 P.2d 729. That decision applied only to the liability of manufacturers.

¶ 14 In 1975, the Washington Supreme Court after further review of product liability cases, extended § 402A strict liability to those in the business of selling or distributing a product. Tabert, 86 Wash.2d 145, 148-49, 542 P.2d 774. Both Ulmer and Tabert were remanded for trial with instructions to apply the strict liability rules announced in the appellate decision. Ulmer, 75 Wash.2d at 532, 452 P.2d 729; Tabert, 86 Wash.2d at 155-56, 542 P.2d 774.

¶ 15 Numerous appellate decisions have applied strict liability to claims arising from exposures to asbestos that occurred before the adoption of § 402A. See e.g. Mavroudis, 86 Wash.App. at 22, 935 P.2d 684 (upholding a jury verdict finding strict liability under pre-WPLA law based on inadequate warnings of exposure occurring between 1957 and 1963); Van Hout v. Celotex Corp., 121 Wash.2d 697, 853 P.2d 908 (...