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Viereck v. Fibreboard Corp.

filed: May 6, 1996.

JULIA A. VIERECK, FOR HERSELF AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF VIRGIL O. VIERECK, DECEASED, RESPONDENT,
v.
FIBREBOARD CORP.; KEENE CORP., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO BALDWIN-EHRET-HILL, INC.; ARMSTRONG CORK CO.; DEFENDANTS, OWENS-CORNING FIBERGLAS CORP.; APPELLANT, GAF CORP., INDIVIDUALLY AND AS SUCCESSOR IN INTEREST TO RUBEROID CO.; OWENS-ILLINOIS, INC., A/K/A OWENS-ILLINOIS GLASS CO.; GARLOCK, INC.; T & N, PLC, F/K/A TURNER & NEWALL, PLC; ANCHOR PACKING CO.; E. J. BARTELLS CO.; RILEY STOKER, INC.; AND THE BROWER COMPANY, DEFENDANTS.



Superior Court County: King. Superior Court Cause No: 93-2-03897. Date filed in Superior Court: January 20, 1994. Superior Court Judge Signing: Larry A. Jordan.

Written by: Cox, J., Concurred by: Kennedy, A.c.j., Coleman, J.

Author: Cox

COX, J. -- Owens-Corning Fiberglas Corporation (OCF) appeals a judgment on a jury verdict in favor of Virgil O. Viereck and Julia Viereck, his wife. Viereck contracted mesothelioma, a cancer resulting from his exposure in the late 1950s to asbestos-containing insulation products OCF

manufactured. The trial court correctly applied to this case the products liability law in effect prior to enactment of the Washington products liability act of 1981 (WPLA). The court also acted within its discretion by excluding certain expert testimony and a hearsay declaration. We therefore affirm the judgment on the verdict.

Viereck worked as a laborer and operator at the Shell Oil Refinery in Anacortes from about 1956-1960. During that time, he was exposed to asbestos and asbestos-containing products manufactured by OCF. In 1992, he was diagnosed with mesothelioma, a malignancy in the lining of the lungs.

In February 1993, Viereck and his wife commenced this action against OCF and others. They sought damages based on products liability and negligence theories. A jury returned a verdict in their favor solely on the products liability claim. The trial court entered judgment on the jury verdict. OCF appeals.

During the appeal, Viereck died. His wife remains a party to the appeal, individually and as personal representative of his estate.

I

Applicable Products Liability Law

OCF contends that the trial court erred by not applying the WPLA to this case. According to OCF, the court's ruling precluded it from presenting certain state-of-the-art defenses available under the WPLA. Because the jury based its verdict solely on products liability, not negligence, OCF argues that the trial court's rejection of OCF's proposed jury instructions based on the WPLA was prejudicial.

There is no meaningful distinction between this case and two of our prior cases on this subject, both of which

upheld trial courts' decisions not to apply the WPLA.*fn1 We therefore hold that the WPLA does not apply to Viereck's claim.

A

Assignments of Error

Viereck raises two preliminary and related issues. He urges us not to consider portions of OCF's appeal. Viereck argues that OCF failed to properly identify in its briefing the specific errors it claims the trial court made. He also argues OCF failed to properly preserve below the claimed error. We disagree and reach the merits of the appeal.

RAP 10.3(a)(3) requires that an appellant state concisely each error that it claims the trial court made, along with the legal issue or issues pertaining to each alleged error. But RAP 1.2(a) calls for a liberal interpretation of the Rules of Appellate Procedure "to promote justice and facilitate the decision of cases on the merits. Cases and issues will not be determined on the basis of compliance or noncompliance with these rules except in compelling circumstances where justice demands...." Accordingly, our Supreme Court recently held that "when an appellant fails to raise an issue in the assignments of error ... and ...


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