Cassie LISBY, individually and as Personal Representative of The Estate of Clayton Lisby, and as legal guardian for her minor child J.L., Respondent,
PACCAR, INC., Appellant.
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Pamela S. Tonglao, PACCAR, Inc., Bellevue, WA, J. Bradley Powell, Lightfoot, Franklin & White, LLC, Birmingham, AL, Kenneth Wendell Masters, Masters Law Group PLLC, Bainbridge Island, WA, for Appellant.
Mark Gregory Olson, Law Offices of Mark G. Olson, Everett, WA, Eric D. Pearson, James C. Orr, Heygood, Orr & Pearson, Dallas, TX, for Respondent.
[178 Wn.App. 519] ¶ 1 A Washington trial court that dismisses an action on the ground that another state is a more convenient forum may not require the defendant to stipulate that Washington's statute of repose will govern the case. Deciding what state's statute of repose will apply to the action is a choice of law issue that does not determine the adequacy or convenience of the alternative forum. We reverse.
¶ 2 Clayton Lisby was killed in a rollover accident at his workplace in Fort Worth, Texas, in January 2011. The truck he was driving was designed in Washington by engineers of the Kenworth Truck Company. Kenworth manufactured the truck in Ohio in 1990, and it was likely delivered shortly thereafter. The Kenworth Truck Company is an unincorporated division of PACCAR, Inc. PACCAR is a Delaware corporation with its principal place of business in Bellevue, Washington. Cassie Lisby, Clayton's widow, sued PACCAR for wrongful death in Washington. She asserted claims of product liability and negligence. PACCAR moved to dismiss the action on forum non conveniens grounds, asserting that the case properly belonged in Texas.
¶ 3 Washington recognized the doctrine of forum non conveniens in Werner v. Werner, 84 Wash.2d 360, 371, 526 P.2d 370 (1974). " Forum non conveniens refers to the discretionary power of a court to decline jurisdiction when the convenience of the parties and the ends of justice would be better served if the action were brought and tried in another forum." Johnson v. Spider Staging Corp., 87 Wash.2d 577, 579, 555 P.2d 997 (1976).
¶ 4 The doctrine of forum non conveniens presupposes that there are at least two forums in which the defendant is [178 Wn.App. 520] amenable to process, Werner, 84 Wash.2d at 370, 526 P.2d 370, and so the court must first determine whether there is an adequate alternative forum. If so, the court then balances the private and public interest factors articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). Spider Staging, 87 Wash.2d at 579, 555 P.2d 997. Unless the balance of factors strongly favors the defendant, the plaintiff's choice of forum will seldom be disturbed. Spider Staging, 87 Wash.2d at 579-80, 555 P.2d 997.
¶ 5 Here, the trial court found that the Gulf Oil factors " strongly favor trial in
the State of Texas and strongly disfavor trial in Washington." The court granted the motion to dismiss the action with prejudice, conditioned on PACCAR's agreement to waive the Texas statute of limitations, a condition that PACCAR accepted.
¶ 6 Lisby remained concerned that in Texas, PACCAR would be able to have the suit promptly thrown out on statute of repose grounds when it reaches Texas. The Texas statute of repose cuts off all claims which accrue more than 15 years after the original sale. The exceptions are few and narrow. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.012 (2003). The Washington statute of repose is more favorable to Lisby's chances of prevailing, given the fact that the truck accident occurred more than 20 years after the truck was manufactured. Under Washington law, a product is presumed to be past its useful safe life when it causes ...