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Montaney v. J-M Mfg. Co., Inc.

Court of Appeals of Washington, Division 1

December 23, 2013

Thomas G. Montaney et al., Appellants,
v.
J-M Manufacturing Company, Inc., Respondent

Appeal from King County Superior Court. Docket No: 12-2-01923-1. Date filed: 07/20/2012. Judge signing: Honorable John P Erlick.

Matthew P. Bergman, Glenn S. Draper, Chandler H. Udo, and Kaitlin T. Cherf (of Bergman Draper Ladenburg PLLC ), for appellants.

David A. Shaw and Tami Becker Gómez (of Williams Kastner ), for respondent.

Authored by James Verellen. Concurring: Stephen J. Dwyer, Ann Schindler.

OPINION

[178 Wn.App. 542] Verellen, J.

¶ 1 The trial court granted summary judgment dismissing Thomas and Marjorie Montaney's claim against J-M Manufacturing (JMM) arising from Thomas's exposure to asbestos from pipe JMM sold. At the summary judgment hearing, evidence was presented that (1) Thomas Montaney was repeatedly exposed to asbestos dust while

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working with asbestos concrete (A/C) pipe between 1972 and 1990; (2) he purchased A/C pipe from a single distributor, Pacific Water Works (Pacific), into the 1980s; and (3) Pacific carried A/C pipe sold by JMM in 1983 and 1984. This evidence is sufficient for a jury to reasonably infer that Montaney was exposed to A/C pipe sold by JMM. We reverse.

FACTS

¶ 2 In 2012, Thomas Montaney died of mesothelioma. Before his death, he and his wife filed an asbestos products liability lawsuit against nine defendants, including JMM.

[178 Wn.App. 543] ¶ 3 Beginning in 1972, Montaney continually worked with A/C pipe in his career with the Cedar River Water and Sewer District. [1] Montaney repaired and maintained A/C water and sewer pipe in the water district's system. This required him to cut and bevel previously installed A/C pipe, and to fit new pipe to replace damaged sections. Cutting the old and new pipe generated substantial airborne asbestos dust. Although he stopped using new A/C pipe in approximately 1990 after learning of the risks, he cut or machined A/C pipe routinely, approximately 10 times per month between 1972 and about 1990.

¶ 4 Johns-Manville manufactured A/C " Transite" pipe for decades before it sold its pipe manufacturing operations in December 1982. JMM purchased Johns-Manville's PVC [2] pipe manufacturing business, while J-M A/C Pipe Corporation purchased Johns-Manville's A/C pipe manufacturing business.

¶ 5 JMM acknowledges that it sold A/C pipe under the trade name J-M Transite from January 1, 1983 until 1988. JMM conceded at oral argument that it may have sold the existing Johns-Manville A/C Transite pipe in stock as of January 1983, as well as A/C pipe manufactured by J-M A/C Pipe Corporation after January 1983. Pacific sold A/C pipe distributed by JMM.[3]

¶ 6 Montaney was responsible for selecting and purchasing replacement pipe and supplies. He had only two sources for pipe. He either obtained leftovers from contractors or purchased new pipe exclusively from Pacific. Montaney explained in his deposition that he only purchased or used [178 Wn.App. 544] A/C pipe made by two manufacturers, Johns-Manville and Certainteed. Montaney also testified that the water district kept an inventory of A/C pipe for repair jobs. Montaney's co-worker Kirk Hunkeler confirmed ...


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