Gary G. WALSTON and Donna Walston, husband and wife, Respondents, v. The BOEING COMPANY; and Saberhagen Holding, Inc., as successor to Tacoma Asbestos Company and The Brower Company, Appellants.
-- January 29, 2013
William Brendan Murphy, Attorney at Law, Bruce Duplan Campbell, Katherine Carlson Wax, Eric David Miller, Perkins Coie LLP, Seattle, WA, for Appellants.Timothy Kost Thorson, Carney Badley & Spellman, Seattle, WA, for Defendants.Matthew Phineas Bergman, Glenn S. Draper, Brian F. Ladenburg, Anna D. Knudson, Bergman Draper Ladenburg, PLLC, John Wentworth Phillips, John Matthew Geyman, Phillips Law Group PLLC, Seattle, WA, for Respondents.Kristopher Ian Tefft, Association of Washington Business, Olympia, WA, Amicus Curiae on behalf of Assoc of WA Business and WA Self.Philip Albert Talmadge, Talmadge/Fitzpatrick, Tukwila, WA, Amicus Curiae on behalf of Wa State Labor Counsel.
¶ 1 The Boeing Company appeals the trial court's denial of its motion for summary judgment under RCW 51.04.010 and RCW 51.24.020, which provide that workers' compensation is the exclusive remedy for injured employees subject to the industrial insurance act (IIA), title 51 RCW, absent an employer's deliberate intention to cause such injury. Because Boeing met its burden to show that no disputed material facts exist here, the burden shifted to Walston to raise a material factual dispute about whether Boeing had actual knowledge that the complained—of asbestos exposure was certain to cause injury and that Boeing willfully disregarded that knowledge. Walston failed to meet that burden; thus, we reverse the trial court's order and remand for entry of an order granting summary judgment to Boeing.
¶ 2 Gary Walston worked in Boeing's hammer shop at plant 2 in Seattle from 1956 to 1992. Hammer shop workers fabricated a variety of metal airplane parts. Walston asserts that “[d]uring his employment at Boeing, he worked with and around asbestos containing products from various sources and inhaled asbestos fibers into his lungs.” Clerk's Papers (CP) at 13. Walston claims that the asbestos exposure at issue occurred when he worked around other employees who were repairing pipe insulation that contained asbestos .1
¶ 3 The hammer shop had asbestos-insulated pipes running the length of the shop ceiling and from the ceiling to the hammer machines. In January 1985, Boeing assigned maintenance workers to repair the pipe insulation because a white powdery substance determined to be asbestos was flaking and falling from the overhead pipes. The maintenance workers re-wrapped the overhead pipes to contain the flaking asbestos insulation.
¶ 4 While performing this work, the maintenance workers used ventilators and were fully enclosed in protective clothing that the hammer shop workers referred to as “moon suits.” CP at 2014. Walston and the other hammer shop workers continued to work during the repairs without protective clothing or respirators.
¶ 5 The 1985 repairs created visible asbestos dust and debris that fell on Walston and the other hammer shop workers. Walston covered his tool box with plastic to stop the dust from accumulating in it. Hammer shop workers, including Walston and John Stewart, asked their supervisor whether they could leave their workstations or wear protective gear during the pipe repair. The supervisor told them to “go back to work” but recommended that the workers avoid working directly under the overhead repairs.2 CP at 1655. Walston said that the repairs lasted approximately one month, but Stewart recalled that the repairs were finished in only a few days.
¶ 6 There is no dispute that Boeing was aware that asbestos was a hazardous material well before the 1985 “moon suit incident” in the hammer shop. Walston's evidence shows that Boeing was aware of the dangers associated with asbestos exposure, including manifestation of asbestos-related diseases decades after initial exposure.3 The record includes memoranda from Boeing industrial hygiene engineers discussing the risks associated with asbestos exposure, surveys and investigations conducted at Boeing to determine levels of exposure, and procedures and recommendations for reducing worker exposure to asbestos.4
¶ 7 Between October 1978 and 1986, Boeing received at least three workers' compensation claims based on asbestos-related injuries at Boeing facilities in Renton and Auburn. Also, in 1981, another hammer shop employee, who worked there from 1957 to 1975, sued an asbestos manufacturer based on his developing cancer from asbestos exposure in Boeing's hammer shop.5 In the late 1980s, Boeing received similar workers' compensations claims alleging asbestos related injuries, including mesothelioma, which is cancer in the lung lining.
¶ 8 Walston's experts, Dr. Arnold Brody, a cellular biologist; Dr. Richard Lemen, an epidemiologist; and Dr. Carl Brodkin, a physician who examined Walston's medical records; variously opined that exposure to asbestos causes cellular level lung injury that increases the risk of developing an asbestos-related disease.6 But these same experts also admitted that no amount of exposure to asbestos is certain to result in disease.
¶ 9 In 2010, Walston was diagnosed with mesothelioma. Walston sued Boeing, alleging that he contracted mesothelioma as a result of his exposure to asbestos while working at Boeing.7 Boeing moved for summary judgment dismissing Walston's claims because it was entitled to employer immunity under the exclusivity provisions of the IIA. The trial court denied Boeing's motion for summary judgment. We granted Boeing's petition for discretionary review of the trial court's denial of its summary judgment motion.
I. Standard of Review
¶ 10 We review a trial court's denial of a motion for summary judgment de novo. Baker v. Schatz, 80 Wash.App. 775, 782, 912 P.2d 501 (1996). “Summary judgment should only be granted if after considering all the pleadings, affidavits, depositions or admissions and all reasonable inferences drawn therefrom in favor of the nonmoving party, it can be said (1) that there is no genuine issue as to any material fact, (2) that all reasonable persons could reach only one conclusion, and (3) that the moving party is entitled to judgment as a matter of law.” Baker, 80 Wash.App. at 782, 912 P.2d 501.
II. Washington's Industrial Insurance Act
¶ 11 The IIA created a swift and certain no-fault workers' compensation system for injured employees in exchange for granting employers immunity from lawsuits arising from workplace injuries. RCW 51.04.010; Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005). But employers who deliberately injure their employees are not immune from civil suits by employees who are entitled to compensation under the IIA.8 RCW 51.24.020 provides:
If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.
(Emphasis added.) Washington courts have consistently interpreted RCW 51.24.020 to require proof of the employer's specific intent to injure an employee before the employee can maintain a separate cause of action against a covered employer. Vallandigham, 154 Wash.2d at 27, 109 P.3d 805.
¶ 12 Until 1995, our courts applied the “deliberate intention” exception to the workers' compensation statute only where there had been a physical assault by one worker against another. See, e.g., Perry v. Beverage, 121 Wash. 652, 655, 659–60, 209 P. 1102 (1922), 121 Wash. 652, 214 P. 146 (1923) (supervisor struck employee in the face with a water pitcher during an argument); Mason v. Kenyon Zero Storage, 71 Wash.App. 5, 7, 9, 856 P.2d 410 (1993) (forklift driver purposely crushed another worker between two drums). But in 1995, in Birklid v. Boeing Company, our Supreme Court held that “deliberate intention” is not limited to physical assaults but includes incidents where the employer (1 ) has “actual knowledge that an injury is certain to occur ” and (2) “willfully disregard [s ] that knowledge ” 127 Wash.2d 853, 865, 904 P.2d 278 (1995). The Court expressly rejected the more lenient “substantial certainty”9 and “conscious weighing”10 tests used by other states with similar “deliberate intention” statutory provisions. Birklid, 127 Wash.2d at 865, 904 P.2d 278.
III. Cases Applying the Birklid Standard
¶ 13 In Birklid, Boeing “ ‘[e]mployees complained of dizziness, dryness in nose and throat, burning eyes, and upset stomach[s]’ “ during pre-production testing of a new material containing phenol-formaldehyde. 127 Wash.2d at 856, 904 P.2d 278 (quoting Birklid Clerk's Papers at 115). A Boeing supervisor reported the employees' symptoms, advised that the effects would likely worsen as production and temperatures increased, and requested improved ventilation in the work area. Birklid, 127 Wash.2d at 856, 904 P.2d 278. Boeing denied the request. Birklid, 127 Wash.2d at 856, 904 P.2d 278. Boeing proceeded with production of the new material and, as anticipated, its workers became sick. Birklid, 127 Wash.2d at 856, 904 P.2d 278.
¶ 14 When addressing the “deliberate intention” issue raised in the employees' lawsuit subsequently filed against Boeing, our Supreme Court distinguished all prior cases decided under the “deliberate intention” exception by explaining that in this instance Boeing knew in advance its workers would become ill. Birklid, 127 Wash.2d at 863, 904 P.2d 278. It held that in earlier cases, employers may have been aware that they were exposing workers to unsafe conditions, but workers were not being injured until accidents occurred. Birklid, 127 Wash.2d at 860–61, 863, 904 P.2d 278 (citing Foster v. Allsop Automatic, Inc., 86 Wash.2d 579, 580, 547 P.2d 856 (1976); Biggs v. Donovan–Corkery Logging Co., 185 Wash. 284, 285–86, 54 P.2d 235 (1936); Delthony v. Standard Furniture Co., 119 Wash. 298, 299–300, 205 P. 379 (1922); Nielson v. Wolfkill Corp., 47 Wash.App. 352, 354, 734 P.2d 961 (1987); Peterick v. State, 22 Wash.App. 163, 166–67, 189, 589 P.2d 250 (1977), overruled on other grounds by Stenberg v. Pac. Power & Light Co., 104 Wn.2d 710, 719–20, 709 P.2d 739 (1985)); Higley v. Weyerhaeuser Co., 13 Wash.App. 269, 270, 534 P.2d 596 (1975); Winterroth v. Meats, Inc., 10 Wash.App. 7, 8, 516 P.2d 522 (1973). It further held that the Boeing employees presented sufficient evidence to justify a trier of fact's finding that Boeing deliberately intended to injure them. Birklid, 127 Wash.2d at 865–66, 904 P.2d 278.
¶ 15 Following Birklid 's articulation of the proper standard to apply when employees covered by the workers' compensation system allege a deliberate intent to injure, two cases—Hope v. Larry's Markets, 108 Wash.App. 185, 193–94, 29 P.3d 1268 (2001), overruled by Vallandigham, 154 Wash.2d at 35, 109 P.3d 805, and Baker, 80 Wash.App. at 777–79, 912 P.2d 501—addressed employment situations involving employees who were repeatedly exposed to chemicals that made them visibly sick and who complained of illness and injury at the time of exposure. The employees in Hope and Baker satisfied the “actual knowledge” prong of the deliberate injury test by providing evidence that the employer knew that employees were suffering injuries from chemical exposure and that they would continue to do so until the exposure stopped. Hope, 108 Wash.App. at 194, 29 P.3d 1268; Baker, 80 Wash.App. at 783–84, 912 P.2d 501. The employees in both cases also presented evidence relevant to the employers' “willful disregard” of that knowledge.11 Hope, 108 Wash.App. at 194–95, 29 P.3d 1268; Baker, 80 Wash.App. at 783–84, 912 P.2d 501. These cases held that the employees' evidence was sufficient to justify a trier of fact finding deliberate intention to injure and the employees were entitled to have a jury determine whether the employer deliberately intended to injure them, thus, precluding summary judgment in favor of the employer. Hope, 108 Wash.App. at 195, 29 P.3d 1268; Baker, 80 Wash.App. at 784, 912 P.2d 501.
¶ 16 In Shellenbarger v. Longview Fibre Company—an asbestos exposure case—Division One of this court affirmed summary judgment for the employer, holding that a fact finder could not reasonably conclude that Longview Fibre had actual knowledge of certain injury. 125 Wash.App. 41, 43, 103 P.3d 807 (2004). Shellenbarger developed asbestosis and lung disease allegedly as a result of asbestos exposure during his employment at Longview Fibre Company. Shellenbarger, 125 Wash.App. at 43–45, 103 P.3d 807. The court reasoned that although the employer became aware of the dangers of asbestos, evidenced by the employer's warning employees in its “Special Hazards Manual” that asbestos could lead to asbestosis and advising employees to wear a respirator when around asbestos dust, knowledge of risk of injury is not knowledge of certain injury. Shellenbarger, 125 Wash.App. at 44–45, 48–49, 103 P.3d 807. The court held that “the relevant injury is not whether the employer knew it was performing a dangerous activity, but rather whether the employer knew of certain injury.” Shellenbarger, 125 Wash.App. at 49, 103 P.3d 807. The Shellenbarger court reiterated that under Birklid, “known risk of harm or carelessness is not enough to establish certain injury, even when the risk is substantial.” Shellenbarger, 125 Wash.App. at 47, 103 P.3d 807.
¶ 17 Ten years after Birklid, in Vallandigham, our Supreme Court further elaborated on the Birklid standard. 154 Wash.2d at 29, 109 P.3d 805. In Vallandigham, school district employees sued to recover for injuries caused by a severely disabled special education student. 154 Wash.2d at 17, 109 P.3d 805. Although the student had allegedly injured staff members and students 96 times during one school year, our Supreme Court held that “the behavior of a child with special needs is far from predictable”; thus, the school district could not know that the child would continue to injure employees; and, thus, the school district could not be sued by employees for intentionally causing them injuries. Vallandigham, 154 Wash.2d at 33–34, 109 P.3d 805. In distinguishing Birklid, the Court recognized that the impact of exposure to a chemical is predictable in a way that the behavior of a special education student is not. Vallandigham, 154 Wash.2d at 24, 33–34, 109 P.3d 805. The Court emphasized that “[d]isregard of a risk of injury is not sufficient to meet the first Birklid prong; certainty of actual harm must be known and ignored.” Vallandigham, 154 Wash.2d at 28, 109 P.3d 805.
IV. Walston's Claim Does Not Satisfy the Birklid Standard
¶ 18 Walston claims that he presented evidence raising a material factual dispute about whether Boeing had (1) actual knowledge that he was certain to be injured and (2) that Boeing willfully disregarded such knowledge. Walston argues that he—like the employees in Birklid, Hope, and Baker—was injured as a result of being exposed to a substance at work that his employer knew was certain to injure him.
¶ 19 But the facts in Birklid, Hope, and Baker differ from this case in an important way. When exposed to the injurious chemical, the Birklid, Hope, and Baker employees became visibly sick—exhibiting symptoms such as passing out, dizziness, burning eyes, upset stomach, difficulty breathing, nausea, headaches, and skin rashes and blisters—and complained to their employers about the effect of the chemical exposure. Birklid, 127 Wash.2d at 856, 904 P.2d 278; Hope, 108 Wash.App. at 189–91, 194, 29 P.3d 1268; Baker, 80 Wn.App. 778–79, 783–84. These employees' visible injuries and complaints created a reasonable inference that the employers had actual knowledge of certain injury to its employees. Birklid, 127 Wash.2d at 856, 863, 865–66, 904 P.2d 278; Hope, 108 Wash.App. at 194, 29 P.3d 1268; Baker, 80 Wn.App. 783–84. In Vallandigham, our Supreme Court also acknowledged that “in cases involving chemical exposure, repeated, continuous injury and the observation of the injury by the employer can satisfy the first prong of the Birklid test.” 154 Wash.2d at 30–31, 109 P.3d 805 (citing Hope, 108 Wash.App. at 193–94, 29 P.3d 1268).
¶ 20 Here, unlike in Birklid, Hope, and Baker, where the injury to the employees was immediate and obvious, Walston and his co-workers were not immediately or visibly injured by the exposure to asbestos. Nor did they complain of injuries caused from their exposure to asbestos. Walston was not diagnosed with an asbestos related disease until 25 years after the “moon suit incident” in the hammer shop. The immediate visible effects of chemical exposure present in Birklid, Hope, and Baker provided the requisite material issue of fact relating to the employer's actual knowledge of certain injury. Birklid, 127 Wash.2d at 856, 863, 865–66, 904 P.2d 278; Hope, 108 Wash.App. at 194, 29 P.3d 1268; Baker, 80 Wn.App. 783–84. But here, there is no material factual dispute relating to Walston's injury and Boeing's alleged actual knowledge that injury was certain to occur.
¶ 21 Walston argues that Washington has adopted a more liberal standard of proof in asbestos injury cases that allows his case to survive summary judgment. He relies on Lockwood v. AC & S, Inc., 109 Wash.2d 235, 248–49, 744 P.2d 605 (1987); Berry v. Crown Cork & Seal Co., 103 Wash.App. 312, 324–25, 14 P.3d 789 (2000); and Mavroudis v. Pittsburgh–Corning Corp., 86 Wash.App. 22, 32, 935 P.2d 684 (1997) to support this argument. Lockwood, Berry, and Mavroudis recognize that the peculiar nature of asbestos products and development of asbestos-related disease make it difficult to prove causation. Lockwood, 109 Wash.2d at 248–49, 744 P.2d 605; Berry, 103 Wash.App. at 323–25, 14 P.3d 789; Mavroudis, 86 Wash.App. at 31–33, 935 P.2d 684. For purposes of summary judgment and this appeal, Boeing does not deny that Walston produced evidence showing that his mesothelioma.was caused by his exposure to asbestos while he was an employee at Boeing. Thus, the relaxed proof standard related to causation does not apply here, where the issue is whether Walston has provided evidence showing that Boeing had actual knowledge that its employees were certain to contract an asbestos-related disease. That issue requires wholly separate evidence.
¶ 22 Walston first attempts to bridge the gap between his injury and Boeing's alleged actual knowledge that injury was certain to occur by showing that even though its workers were not suffering immediate visible injuries, Boeing knew that diseases caused by asbestos exposure have long latency periods and that they materialize at some later date. He points to at least three workers' compensation claims against Boeing alleging asbestos-related injuries between 1978 and 1986, and a 1981 lawsuit by a Boeing employee against a third-party asbestos manufacturer that alleged asbestos-caused cancer.
¶ 23 But the record here does not support a holding that Boeing's awareness that some workers developed asbestos-related diseases raised a material issue of fact about whether Boeing knew that exposing employees to asbestos during the pipe repair in 1985 was certain to injure them. As Division One recognized in Shellenbarger, not everyone exposed to asbestos develops an asbestos related disease. 125 Wash.App. at 49, 103 P.3d 807. Even Walston's experts conceded that there is no known threshold of exposure to asbestos that results in certain asbestos related disease.
¶ 24 Walston secondarily argues that certainty of injury can be shown through expert testimony that a cellular injury occurs when a person is exposed to asbestos and that the relevant injury is the cellular injury, not the disease contracted following a long latency period. Walston's experts described a subclinical12 cellular inflammation caused by asbestos fibers that may result in abnormal cell division that increases the chance of a genetic defect in the division of cells, leading to cancer. We are mindful of the narrow exception the legislature provided and the strict standard announced by our Supreme Court in Birklid that preclude holding that Walston has shown that Boeing had actual knowledge of certain injury in the absence of clinical symptoms and based only on asbestos-caused cellular inflammation and irregular cell division increasing the risk of an asbestos related disease. See Vallandigham, 154 Wash.2d at 28, 109 P.3d 805.
¶ 25 Walston also points to various internal Boeing documents discussing the risk of asbestos exposure and its potential to cause injury years after exposure. This evidence does show that Boeing knew that exposure to asbestos was dangerous to its employees because it increased the risk that an asbestos-related disease could materialize. Nevertheless, “the relevant inquiry is not whether the employer knew it was performing a dangerous activity, but rather whether the employer knew of certain injury.” Shellenbarger, 125 Wash.App. at 49, 103 P.3d 807. In Birklid, our Supreme Court acknowledged that the deliberate intent exception was very narrow. 127 Wash.2d at 865, 904 P.2d 278. Risk of injury, even risk amounting to substantial certainty of injury, is not certain injury mandated under the Birklid test. 127 Wash.2d at 865, 904 P.2d 278; Vallandigham, 154 Wash.2d at 28, 109 P.3d 805.
¶ 26 Walston has not directed us to any evidence in the record demonstrating that a material factual dispute about whether Boeing had actual knowledge in 1985 that asbestos exposure was certain to cause injury; nor did our independent search of the record uncover such evidence. Here, as in Shellenbarger, a reasonable fact finder could not conclude that the employer knew with certainty that any employee would be injured by asbestos exposure in the workplace. See 125 Wash.App. at 49, 103 P.3d 807. Under these facts (no actual knowledge of certain injury), we need not reach the second prong of the Birklid deliberate intent test, which considers whether the employer willfully disregarded actual knowledge of certain injury.13
¶ 27 In sum, Boeing met its burden to show that there is no dispute of material fact that Boeing knew in 1985 that the pipe repairs in the hammer shop were certain to cause injury to its employees. After Boeing met its burden, the burden shifted to Walston to raise a genuine issue of material fact about Boeing's knowledge of certainty of injury to the Boeing employees in the hammer shop in 1985. See Vallandigham, 154 Wash.2d at 35, 109 P.3d 805. This he failed to do.
¶ 28 Because Walston has failed to carry his burden to demonstrate that there remains a material question of fact about Boeing's actual knowledge of certain injury as required by RCW 51.24 .020, Boeing is immune from Walston's suit for workplace injury under RCW 51.04.10. Accordingly, Boeing is entitled to summary judgment as a matter of law. Vallandigham, 154 Wash.2d at 35, 109 P.3d 805.
¶ 29 We reverse the trial court's denial of Boeing's summary judgment order and remand to the trial court for entry of an order granting summary judgment to Boeing on Walston's claims.14
VAN DEREN, J.
We concur: HUNT, and QUINN–BRINTNALL, JJ.