Simonetta v. Viad Corp.

151 P.3d 1019

137 Wn. App. 15

Joseph A. SIMONETTA and Janet E. Simonetta, a married couple, Appellants, v. VIAD CORPORATION f/k/a The Dial Corporation individually and as successor to Griscom Russell Company, Respondents, and Saberhagen Holdings, Inc., as successor to Tacoma Asbestos Company and The Brower Company; Bartells Asbestos Settlement Trust; Aqua-Chem, Inc., individually and as successor to Cleaver-Brooks Company; Foster Wheeler Energy Corporation; General Electric Company; General Refractories Company; Imo Industries, Inc., individually and as successor-in-interest to De Laval Turbine, Inc.; Ingersoll-Rand Company; Viacom Inc., individually and as successor by merger to CBS Corporation, f/k/a Westinghouse Electric Corporation; Warren Pumps, Inc.; Dial Corporation, Individually and as successor to Griscom Rusell Company; Elliott Company, a/k/a Elliott Turbomachinery Co., Inc.; Carrier Corporation, Individually and as successor-in-interest to Bryant Heating & Manufacturing Co.; J.T. Thorpe & Son, Inc. a/k/a J.T. Thorpe Company; Allis-Chalmers Corporation, Individually and as successor to The Buda Company; and Quimby Equipment Co., Inc., Defendants.

No. 56614-8-I.

No. 57011-1-I.

Court of Appeals of Washington, Division 1.

January 29, 2007.

Matthew Phineas Bergman, David S. Frockt, Ari Y. Brown, Brian F. Ladenburg, Glenn S. Draper, Bergman & Frockt PLLC, Seattle, WA, Leann McDonald, Welches, OR, Ladd R. Gibke, Charles S. Siegel, Waters & Kraus LLP, Dallas, TX, for Appellants.

Ronald Clayton Gardner, David D. Mordekhov, Gardner Bond Trabolsi, Barry Neal Mesher, Brian David Zeringer, Michael Barr King, Brett Anderson, Lane Powell PC, Kenneth Emil Petty, William Kastner & Gibbs, Margaret A. Sundberg, Williams Kastner & Gibbs PLLC, James Edward Horne, Michael Edward Ricketts, Robert H. Fulton, Kingman, Peabody, Fitzharris, & Ringer P, Katherine M. Steele, J. William Ashbaugh, Stafford Frey Cooper, Karen L. Cobb, Seattle, WA, Robert L. Byer, Nicholas P. Vari, Kirkpatrick, Lockhart, Nicholson, Graham, Pittsburgh, PA, for Respondents.

Mark Bradley Tuvim, Corr Cronin Michelson Baumgardner & Pree, Seattle, WA, Amicus Curiae on behalf of Ingersoll-rand.

Mark Bradley Tuvim, Corr Cronin Michelson Baumgardner & Pree, Seattle, WA, Amicus Curiae on behalf of Leslie Controls.

APPELWICK, C.J.

¶ 1 Joseph Simonetta (Simonetta) brought a product liability law suit against Viad Corp. (Viad) sounding in both negligence and strict liability based on exposure to asbestos causing subsequent lung cancer. The exposure was to insulation manufactured by another corporation, but necessarily used to encapsulate a Viad¹ evaporator installed aboard a Navy ship. The trial court granted summary judgment for Viad on the basis that the corporation owed no duty to warn Simonetta of the potential hazards of asbestos, because the exposure did not stem from the evaporator itself. We hold that Viad did have a duty to warn once it knew that the asbestos necessarily used with its product posed a health risk to those servicing its equipment. We reverse and remand for further proceedings.

FACTS

¶ 2 Joseph Simonetta was diagnosed with lung cancer and underlying "asbestos related pleural disease" in 2000 and 2002. Appellant's expert testified as to a causal link between the lung cancer and asbestos exposure. Simonetta's exposure to asbestos appears to stem from his tenure as a Navy machinist mate.

¶ 3 Simonetta worked for the Navy between 1954 and 1974. He served as machinist mate from 1958-59, during which time his duties included maintaining and servicing a Griscom Russell evaporator (also called a distiller) which converted sea water into fresh water for use aboard the USS Saufley. At one point during his tenure, Simonetta had to open the evaporator in order to examine and repair some of the internal tubing of the equipment. To open the evaporator, Simonetta removed block insulation, asbestos mud and asbestos cloth using a hammer. After completing the repairs, he had to reinsulate the unit with the same materials.

¶ 4 The evaporator was shipped from Griscom Russell without asbestos insulation. The asbestos exposure came from a product that was not manufactured, provided or installed by the respondent. Simonetta was not aware of the company who manufactured or installed the insulation.

¶ 5 Simonetta brought both negligence and strict liability claims against Viad for failure to warn of the danger posed by asbestos insulation. The asbestos exposure at issue occurred in 1958-59, and therefore is governed by pre-Washington Product Liability Act (WPLA) product liability law. Mavroudis v. Pittsburgh-Corning Corp., 86 Wash. App. 22, 33-34, 935 P.2d 684 (1997). The issue at the heart of the summary judgment is whether Viad had a duty under either theory to warn of dangers resulting from exposure to asbestos from another manufacturer's insulation used with the Griscom Russell evaporator. The trial court granted summary judgment for defendant on both the negligence and strict liability claims based on the lack of any duty owed to the plaintiff. The trial court judge determined that no duty existed because "[a]lthough the product manufacturer knew or reasonably should have known that its product would be insulated with asbestos-containing material, the product itself did not produce the injury."

ANALYSIS

¶ 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. Seattle Police Officers 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. Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). A material fact is one upon which the outcome of the litigation depends. Seattle Police, 151 Wash.2d at 830, 92 P.3d 243. Facts and all reasonable inferences must be construed in favor of the non-moving party. Id. Based on this standard, facts and inferences should be viewed in the light most favorable to appellant Simonetta.

1. Negligence

¶ 7 Plaintiff alleges negligence for Viad's failure to warn of the potential for asbestos exposure from use of its evaporator. A product liability negligence claim focuses on the manufacturer's conduct. Young, 130 Wash.2d 160, 178, 922 P.2d 59 (1996). As an element of a negligence claim under products liability, as in any negligence case, the plaintiff must demonstrate a duty owed by the defendant. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992). The existence of a duty is a threshold question determined as a matter of law. Briggs v. Pacificorp, 120 Wash.App. 319, 322, 85 P.3d 369 (2003). Once a duty is found, the jury determines the scope of that duty based on the foreseeable range of danger. Bernethy v. Walt Failor's Inc., 97 Wash.2d 929, 933, 653 P.2d 280 (1982). Under negligence law, a defendant has a duty to exercise ordinary care, and "[a] manufacturer's duty of ordinary care is a duty to warn of hazards involved in the use of a product which are or should be known to the manufacturer." Reichelt v. Johns-Manville Corp., 107 Wash.2d 761, 772, 733 P.2d 530 (1987). This manufacturer's duty to warn attaches when a reasonable person using the product would want to be informed of the risk and requires the use of ordinary care to test, analyze and inspect products and keep abreast of scientific knowledge in its product field. Koker v. Armstrong Cork Inc., 60 Wash.App. 466, 477-79, 804 P.2d 659 (1991).

¶ 8 Viad contends no duty was owed to Simonetta because the Griscom Russell evaporator itself was not hazardous. However, "[a] manufacturer can also be found negligent for failure to give adequate warning of the hazards involved in the use of the product which are known, or in the exercise of reasonable care should have been known, to the manufacturer." Novak v. Piggly Wiggly Puget Sound Co., 22 Wash.App. 407, 412, 591 P.2d 791 (1979), see also Restatement (Second) of Torts § 388 (1965); Callahan v. Keystone Fireworks Mfg. Co., 72 Wash.2d 823, 435 P.2d 626 (1967); Little v. PPG Indus., Inc., 92 Wash.2d 118, 594 P.2d 911 (1979). A duty to warn exists toward users of the product who may encounter a known hazard. Accordingly, because Simonetta was a repairman engaged in the operation and maintenance of an evaporator, Griscom Russell owed him a duty of reasonable care to warn of the known hazards involved in the use of the product.

¶ 9 Viad contends that it is not liable because it must only warn of the dangers "inherent in its product." Asbestos was not a Griscom Russell product. But, the danger of asbestos exposure is "inherent" in the use of its product, because the evaporators were built with the knowledge that insulation would be needed for the units to operate properly and that workers would need to invade the insulation to service the units. Griscom Russell also knew that the Navy used asbestos for thermal insulation. A product designed so that use requires the invasion of asbestos insulation has a known inherent danger because the particles become respirable which exposes people nearby to their toxic nature.

¶ 10 The undisputed evidence presented by Simonetta demonstrates Griscom Russell's (Viad's) awareness of the necessary requirements for the use of the evaporator, both operations and maintenance. Marine engineering expert Charles Cushing testified that "somebody who designs a piece of equipment for shipboard use that involves the use of steam and that is hot would understand that the unit is going to be insulated." He also agreed that during the time frame of Simonetta's employment the high temperature thermal insulation use by the Navy contained asbestos. Although asbestos was not the required material, Griscom Russell knew it was used by the navy for thermal insulation. Jerry...