Opinion
No. 59379-0-I.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-16070-5, Michael J. Fox, J., entered December 22, 2006.
Reversed and remanded by unpublished opinion per Agid, J., concurred in by Grosse and Becker, JJ.
Robert Ingwersen (Ingwersen) got lung cancer from exposure to asbestos and sued several entities including Imo Industries, Inc. (Imo). Imo is the successor-in-interest to Delaval Turbine, Inc., a company that made turbine engines requiring asbestos-containing insulation. These engines were installed on ships at the shipyard where Ingwersen worked in the 1960s. Imo successfully moved for summary judgment. It made two arguments: (1) Ingwersen failed to show that he was exposed to the asbestos used to insulate its equipment because he could not prove he had worked on the ships on which that equipment was installed and (2) that Imo could not be found liable because it neither manufactured nor installed the asbestos-containing insulation itself. But the evidence presented created an inference that Ingwersen more likely than not worked on a ship on which a Delaval engine requiring asbestos-containing insulation was installed. And we recently held that the manufacturer of a product that requires asbestos-containing insulation can be held liable for failing to warn about the dangers of asbestos inhalation. Therefore we reverse and remand for a trial.
FACTS
Ingwersen worked as a sheet metal worker at Lockheed Shipyard (Lockheed) in 1962, 1963, 1966-1967, and again in 1984. He was later diagnosed with asbestos related pleural disease and lung cancer. In 2005, he sued several companies in the shipbuilding industry seeking damages for his exposure to asbestos and his resulting lung cancer. Imo was one of those companies. Imo is the successor-in-interest to Delaval Turbine, Inc., a company that manufactured turbine engines and other ship parts.
In the 1960s, Delaval turbine engines were insulated with asbestos-containing materials. The asbestos-containing insulation was required to protect sailors and shipyard workers from the heat of the engines and to extend the range of the ship. Although Delaval did not make asbestos, it sometimes provided the asbestos-containing insulation with the new engine. From 1963-1968, Delaval engines were installed on amphibious transport dock ships (LPDs) and insulated with asbestos at Lockheed. Workers insulated the turbine engines by covering them first in an asbestos containing blanket, second with a layer of asbestos mud, third with asbestos cloth, and finally with a layer of sheet metal. The insulation process created a significant amount of asbestos dust.
In his declaration, Nicholas Heyer, an expert in the field of industrial hygiene and epidemiology, testified that asbestos fibers can travel long distances in the air, affecting even those people in the vicinity who were not actually aboard the ships where asbestos was being used. He also testified that exposure to asbestos used to insulate Delaval engines at Lockheed likely caused Ingwersen's cancer.
Imo argues that Ingwersen failed to present sufficient evidence that he was exposed to asbestos related to the insulation of equipment manufactured by Delaval. This argument is based on Ingwersen's deposition testimony that he had no knowledge of working around any Delaval equipment and did not claim to work on ships on which Delaval equipment was installed.
In his deposition, as well as his application to return to Lockheed in 1984, Ingwersen claimed to have worked on the first LSD (Landing Ship Dock) while at the shipyard in the 1960s. LSDs, like LPDs, were amphibious transport dock ships. But the first LSD was not built at Lockheed during the 1960s. The first LSDs were built during World War II. In 1981, the United States Navy awarded Lockheed the contract to build a new class of LSDs. In his opposition to the motion for summary judgment, Ingwersen's counsel argued that he was likely mistaken about having worked on an LSD and, given the similarities between LSDs and LPDs, a reasonable person could conclude that Ingwersen had actually worked on the first LPD built at Lockheed during the 1960s, and thus likely was exposed to asbestos used to insulate that ship's Delaval turbine engine.
DISCUSSION
We review a summary judgment order de novo and engage in the same inquiry as the trial court., We will affirm summary judgment if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there are factual issues, we must construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. A material fact is one upon which the outcome of the litigation depends. Although a party moving for summary judgment has the initial burden of showing there is no dispute about any issue of material fact, once that burden is met, the burden shifts to the nonmoving party. The nonmoving party cannot rely on speculation but must assert specific facts to defeat summary judgment. Summary judgment is appropriate if reasonable minds could reach only one conclusion after considering all of the evidence presented.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963).
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992).
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Hiatt, 120 Wn.2d at 65-66 (citing LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989)).
Although neither the summary judgment arguments below nor the briefs on appeal specify which claims were determined on summary judgment, based on the cases cited, we assume that Ingwersen claimed Imo was liable under both negligence and strict liability theories. For either his negligence or strict liability claim to survive summary judgment, Ingwersen had to present some non-speculative evidence that (1) his cancer was caused by exposure to asbestos (2) for which liability could be imposed on Delaval.
See Simonetta v. Viad Corp., 137 Wn. App. 15, 151 P.3d 1019 (2007), review granted, 162 Wn.2d 1011 (2008).
Exposure to Asbestos
In Lockwood v. AC S, Inc., the Washington Supreme Court held that plaintiffs may establish exposure and causation in an asbestos case through circumstantial evidence and set out factors a court should use to determine whether causation exists:
(1) plaintiff's proximity to the asbestos product when the exposure occurred, (2) the expanse of the work site where asbestos fibers were released, (3) the extent of time plaintiff was exposed to the product, (4) what types of asbestos products the plaintiff was exposed to, (5) how the plaintiff handled and used those products, (6) expert testimony on the effects of inhalation of asbestos on human health in general and the plaintiff in particular, and (7) evidence of any other substances that could have contributed to the plaintiff's disease (and expert testimony as to the combined effect of exposure to all possible sources of the disease).
Allen v. Asbestos Corp., 138 Wn. App. 564, 571, 157 P.3d 406 (2007) (citing Lockwood v. AC S, Inc., 109 Wn.2d 235, 744 P.2d 605 (1987)).
Generally, a plaintiff presents sufficient evidence of asbestos exposure to survive summary judgment by showing that he worked on a ship where asbestos-containing material linked to the defendant was used.
See Simonetta, 137 Wn. App. at 19-20.
Imo argues that there is insufficient evidence to infer that Ingwersen worked on an LPD ship where Delaval engines were insulated with asbestos because he claimed to have worked on the first LSD. Ingwersen could not have worked on the first LSD because it was built during World War II. But he could have worked on the first LPD built at Lockheed in the 1960s. And LSDs and LPDs are very similar ships. He argues that these facts create an inference that the amphibious transport dock ship he worked on in the 1960s, that he mistakenly called an LSD, was actually an LPD. Ingwersen's social security records prove that he worked at Lockheed in 1962, 1963, and 1966-1967. He also presented an excerpt from the Dictionary of American Naval Fighting Ships Volume IV, which shows that LPDs containing Delaval engines were built at Lockheed between 1963 and 1967. And he presented witness testimony that (1) Delaval turbines on LPDs were insulated with asbestos-containing materials at Lockheed in the 1960s; (2) this process created substantial amounts of asbestos dust; and (3) asbestos fibers can travel over long distances to contaminate areas beyond the ships on which asbestos is used.
Navy Department, Office of the Chief of Naval Operations, Naval History Division (1969).
Imo contends that Ingwersen's counsel cannot create a genuine issue of material fact by contradicting her client's former deposition testimony that he worked on an LSD. To support this contention, Imo relies on Cofer v. Pierce County and State Farm Mutual Auto Insurance Co. v. Treciak, but those cases are distinguishable. In Cofer, Division Two of this court explained that plaintiff's counsel cannot create an issue of material fact by submitting an affidavit based solely on hearsay and belief. Here, counsel's statement that Ingwersen was likely mistaken in his belief that he worked on an LSD is not based on hearsay or belief, but rather on facts from the Dictionary of American Naval Fighting Ships, a learned treatise. Treciak involves the principle that a plaintiff cannot survive summary judgment by submitting an affidavit that "`merely contradicts, without explanation, previously given clear testimony.'" Ingwersen has not violated that principle because his attorney's assertion that he was mistaken comes with a reliable explanation. Counsel explained that, based on objective facts in the record, given the similarities between LPDs and LSDs, Ingwersen likely confused the two types of ships because he could not have worked on the first LSD but could have worked on the first LPD built at Lockheed. Drawing all reasonable inferences in Ingwersen's favor, we hold that he presented sufficient evidence to raise a genuine issue of material fact about whether he was exposed to asbestos used to insulate a Delaval engine on an LPD ship when he worked at Lockheed in the 1960s.
8 Wn. App. 258, 505 P.2d 476 (1973).
117 Wn. App. 402, 71 P.3d 703 (2003), review denied, 151 Wn.2d 1006 (2004).
117 Wn. App. at 407 (internal quotation marks omitted) (quoting Marshall v. AC S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989)).
Ingwersen also argued that, under Berry v. Crown Cork Seal Co., he need only provide evidence that he worked at a shipyard where asbestos connected to the defendant was being used at the time, not that he worked on any particular ship. 103 Wn. App. 312, 324-25, 14 P.3d 789 (2000), review denied, 143 Wn.2d 1015 (2001). Because we hold that he presented sufficient evidence to create a genuine issue of material fact about whether he worked on an LPD, we need not reach the issue of whether Berry, a case involving asbestos producers, should be extended to impose liability on third party manufacturers of equipment that used asbestos-containing insulation.
Liability
Imo also argued that it could not be held liable for exposure to asbestos-containing insulation that was manufactured and installed by others. In two recent opinions, we held that a manufacturer of a product that required asbestos insulation could be held liable, under both negligence and strict liability theories, for its failure to warn users of the product about the dangers of asbestos inhalation, even if it neither produced the asbestos nor insulated the product itself. In Simonetta v. Viad Corporation and Braaten v. Saberhagen Holdings, we held that (1) a manufacturer whose product required asbestos insulation had a duty to warn users if it knew or should have known of a hazard produced by reasonable use and (2) failure to warn of the dangers inherent in using a product that requires asbestos insulation renders that product defective for purposes of imposing strict liability.
Simonetta, 137 Wn. App. at 32; Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 49, 151 P.3d 1010 (2007), review granted, 162 Wn.2d 1011 (2008).
Simonetta v. Viad Corp., 137 Wn. App. 15, 25, 151 P.3d 1019 (2007), review granted, 162 Wn.2d 1001 (2008); Braaten v. Saberhagen Holdings, 137 Wn. App. 32, 49, 151 P.3d 1010 (2007), review granted, 162 Wn.2d 1011 (2008).
Simonetta, 137 Wn. App. at 30-32; Braaten, 137 Wn. App. at 47. We note that the Washington Supreme Court has granted review in both these cases. But, in the absence of a Supreme Court decision reversing these cases, we decline to reconsider our holdings.
The summary judgment order does not disclose the trial court's reasoning. But it may have decided to grant summary judgment because it believed, before Simonetta and Braaten, that only asbestos producers could be held liable for asbestos-related injuries. On appeal, Imo makes no effort to distinguish Simonetta or Braaten, relying instead on its assertion that Ingwersen presented insufficient evidence of exposure to the asbestos used to insulate Delaval products. But Delaval did not have to have manufactured asbestos to be found liable for damages resulting from exposure to the asbestos it used to insulate its products. Because Ingwersen presented sufficient evidence to raise a genuine issue of material fact about his exposure to asbestos products used in Delaval engines, we reverse the summary judgment order and remand for a trial.
We reverse and remand.