Opinion
No. 40015-4-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Pierce County, No. 08-2-11077-5, Kitty-Ann van Doorninck, J., entered November 13, 2009.
Affirmed by unpublished opinion per Worswick, A.C.J., concurred in by Armstrong and Van Deren, JJ.
The Arnolds appeal from the trial court's denial of its CR 60(b) motion to vacate based on newly found evidence. The Arnolds argue that evidence of a statutory duty under the federal Walsh-Healey Act, 41 U.S.C. § 35, should have compelled the trial court to grant its motion. In light of this court's recent holding in Arnold v. Saberhagen Holdings, Inc., 157 Wn. App. 649, 240 P.3d 162 (2010) ( Arnold I) establishing law of the case, we affirm.
FACTS
This case is the second appeal stemming from a suit against Lockheed Shipbuilding Corporation (Lockheed) and a series of other companies, including Saberhagen Holdings, Inc. (Saberhagen) for asbestos-related injury claims. In the first appeal, this court reversed a summary judgment order granted in favor of Lockheed. This appeal arises out of the trial court's denial of a CR 60(b)(3) motion to vacate the trial court's original summary judgment order based on new evidence.
CR 60(b) provides in relevant part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
. . .
(3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b);
. . .
The Arnolds moved to consolidate both of these appeals but we denied the motion.
Reuben Arnold died of mesothelioma in March 2008 and his son Daniel also recently died from it. Reuben worked as an insulator with asbestos and was exposed to asbestos at several sites, including Lockheed Shipyard. The plaintiffs in this case sued Lockheed both for Reuben's exposure directly and Daniel's exposure through his father.
Lockheed moved for summary judgment, which the trial court granted. After that, the Arnolds' attorneys uncovered new evidence unavailable to them at the time to support its contention that Lockheed owed a duty of care to Rueben Arnold and Daniel Arnold pursuant to its status as a government contractor under the Walsh-Healey Act.
After considering the plaintiff's CR 60(b)(3) motion, declarations in support and opposition to the motion, and Lockheed's response, the trial court denied it. The Arnolds then filed this appeal.
Between the filing of the parties' briefs, and our consideration of this appeal, this court issued its opinion in Arnold I and reversed much of the trial court's summary judgment order. 157 Wn. App. at 649. With regard to the issue of whether the Walsh-Healey Act creates a duty, however, the court reasoned:
Next, we conclude that the Walsh-Healey Act does not create a duty on the part of Lockheed that runs to the Arnolds. The Act requires parties who contract with the United States to manufacture or furnish materials, supplies, articles, or equipment in any amount exceeding $10,000 to agree to contract provisions that they will provide a safe workplace. 41 U.S.C. § 35(d). The Act gives the United States a cause of action for breach of contract, allowing it to seek liquidated damages and other statutory penalties. 41 U.S.C. § 36. Nowhere does the Act suggest that a third party may enforce a contractor's breach of the Act's workplace provisions through a negligence lawsuit. The primary case that the Arnolds rely on to assert that the Act gives rise to such a duty — Zimko v. American Cyanamid, 905 So.2d 465 (La. Ct.App. 2005) — is unpersuasive. The Zimko court did not address the issue of third party enforcement, and it emphasized that a "no-duty defense" to a negligence claim is limited to exceptional situations under Louisiana law, which is not the case in Washington. 905 So.2d at 481-83.
Arnold I, 157 Wn. App. at 671. In light of this, we ordered supplemental briefing on the question of whether the Arnolds' CR 60(b)-related appeal is now moot. The parties submitted supplemental briefs discussing that question.
ANALYSIS
The Arnolds initially contend on appeal that (1) Lockheed secured summary judgment on the duty issue by convincing the trial court that it was not subject to the Walsh-Healey Act because it was not an employer, (2) the newly discovered contracts prove otherwise, and will probably change the outcome of summary judgment, (3) the contracts were not disclosed during discovery despite diligent efforts by the Arnolds' counsel, (4) the contracts are material, and (5) the trial court abused its discretion in failing to grant the Arnolds' CR 60(b)(3) motion for relief based on newly discovered evidence.
Under CR 60, "the court may relieve a party . . . from final judgment, order, or proceeding" for, among other things, "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)". CR 60(b)(3). This court reviews a trial court's denial of a CR 60(b) motion to vacate for abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). An abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons. Noble v. Safe Harbor Family Pres. Trust, 167 Wn.2d 11, 17, 216 P.3d 1007 (2009).
In Arnold I, we affirmed the trial court on the issue of whether the Walsh-Healey Act creates a duty in favor of the plaintiffs, holding that, as a matter of law, it does not. This established the law of the case on this issue. Law of the case refers to three doctrines: (1) appellate court decisions bind the trial court on remand, (2) jury instructions not objected to become the properly applicable law on appeal, and (3) a second appellate court will not revisit the holdings of the first appellate court in the same case. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992).
Reversing the trial court's CR 60(b)(3) order would not provide the relief the Arnolds seek because on remand the trial court is bound by our holding in Arnold I. And further, it is improper for us to revisit our holding in Arnold I, absent a showing of manifest error or an intervening change in the law, neither of which are present here. See First Small Business Investment Co. of Cal. v. Intercapital Corp. of Or., 108 Wn.2d 324, 333, 738 P.2d 263 (1987). Thus, the Arnolds' argument fails.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and VAN DEREN, J., concur.