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Walston v. Boeing Co.

Supreme Court of Washington, En Banc

September 18, 2014

Donna Walston , Individually and as Personal Representative , Petitioner ,
The Boeing Company et al. , Respondents

Argued February 13, 2014

Appeal from Pierce County Superior Court. 10-2-13921-0. Honorable Rosanne Buckner.

Matthew P. Bergman, Glenn S. Draper, Brian F. Ladenburg, and Anna D. Knudson (of Berman Draper Ladenburg PLLC ); and John W. Phillips (of Phillips Law Group PLLC ), for petitioner.

William B. Murphy, Bruce D. Campbell, Katherine C. Wax, Eric D. Miller, and Paul S. Graves (of Perkins Coie LLP ); and Timothy K. Thorson (of Carney Badley & Spellman ), for respondents.

Philip A. Talmadge on behalf of United Steelworkers Local 12-369, amicus curiae.

John S. Riper on behalf of AGC of Washington, amicus curiae.

Kristopher I. Tefft on behalf of Association of Washington Business and Washington Self-Insurers Association, amici curiae.

Mark Behrens, Cary Silverman, David B. Eppenauer, Sheldon Gilbert, H. Sherman Joyce, Colleen R. Shiel, Donald Evans, Karen Harned, Elizabeth Milito, Allan Stein, and Gregg Dykstra on behalf of Coalition for Litigation Justice, Inc., amicus curiae.

AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst, J. Robert Leach, Justice Pro Tem. AUTHOR: Justice Charles K. Wiggins. WE CONCUR: Justice Debra L. Stephens, Justice Steven C. Gonzá lez, Justice Sheryl Gordon McCloud.


[181 Wn.2d 393] Susan Owens, J.

Page 520

¶ 1 In 1911, the legislature passed the Industrial Insurance Act (IIA), Title 51 RCW, creating a no-fault system for efficiently compensating workers injured on the job. As part of that system, employers receive immunity from civil suits resulting from on-the-job injuries. RCW 51.04.010. However, the legislature specified that employers that deliberately injure their employees are not immune from suit. RCW 51.24.020. Under our precedent, an employer deliberately injures an employee if " the employer ha[s] actual knowledge that an injury [is] certain to occur and willfully disregard[s] that knowledge." Birklid v. Boeing Co., 127 Wn.2d 853, 865, 904 P.2d 278 (1995).

¶ 2 In this case, Gary G. Walston was exposed to asbestos while working at The Boeing Company and was later diagnosed with mesothelioma. The Court of Appeals held that pursuant to the IIA, Boeing was immune from suit because Walston had not raised a material question of fact as to whether Boeing had actual knowledge that injury was certain to occur. We agree. Walston has not made such a showing, and therefore, he is limited to the recovery provided by the IIA's workers' compensation system.

[181 Wn.2d 394] FACTS

¶ 3 Walston worked for Boeing from 1956 to 1995. Although Walston was exposed to asbestos throughout his career with Boeing, at issue in this case is an incident of asbestos exposure that occurred in 1985. In January of that year, maintenance workers began repairing pipe insulation in the ceiling above the hammer shop. Specifically, the workers rewrapped the overhead pipes to contain flaking asbestos insulation. These maintenance workers used ventilators and protective clothing referred to as " moon suits" during the project. Clerk's Papers (CP) at 2014. Although this work occurred overhead, Walston and the other hammer shop employees continued work below without protective ventilators or clothing. The repairs created visible dust and debris, and Walston used a plastic covering to protect his toolbox. Walston and other hammer shop employees requested that they work in a different location during the pipe repair. The supervisor told them to go back to work but recommended that they avoid working directly under the overhead repairs.

¶ 4 Walston was diagnosed with mesothelioma, a lung disease caused by inhaling asbestos fibers, in 2010. He passed away in April 2013. One of Walston's experts, Dr.

Page 521

Carl Brodkin, concluded that Walston's exposure during 1985 was " likely by far... the highest level of exposure experienced by Mr. Walston" during his Boeing career and " a component part of Mr. Walston's cumulative exposure that resulted in his development of Mesothelioma." CP at 2873. Another expert witness, Dr. Arnold Brody, testified that an individual exposed to asbestos fibers at levels greater than background sustain an immediate microscopic injury that is not observable. However, another of Walston's experts, Dr. Andrew Churg, conceded that asbestos exposure is not certain to cause mesothelioma or any other disease.

[181 Wn.2d 395] ¶ 5 Walston sued Boeing, claiming that his disease was caused by his exposure to asbestos while employed by the company. Boeing does not dispute that it was aware that asbestos was a hazardous material in 1985. Neither does Boeing dispute the facts underlying the 1985 incident. Instead, it argues that it did not have actual knowledge that Walston was certain to be injured and therefore it is immune from suit under the IIA. Boeing moved for summary judgment, but the trial court denied the motion. The Court of Appeals reversed and remanded for entry of an order granting summary judgment to Boeing. Walston v. Boeing Co., 173 Wn.App. 271, 288, 294 P.3d 759 (2013). We granted review. Walston v. Boeing Co., 177 Wn.2d 1019, 304 P.3d 115 (2013).


¶ 6 Has Walston raised a question of material fact as to whether Boeing had actual knowledge that he was certain to be injured by the asbestos exposure, thus allowing him to pursue his claim outside of the IIA's workers' compensation system?


¶ 7 When reviewing summary judgment, we engage in the same inquiry as the trial court. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is appropriate only if " there is no genuine issue as to any material fact" and " the moving party is entitled to a judgment as a matter of law." CR 56(c). All facts must be considered in the light most favorable to the nonmoving party. Vallandigham, 154 Wn.2d at 26. Summary judgment is granted only if, given the evidence, reasonable persons could reach only one conclusion. Id. The moving party bears the burden of showing that there is no genuine issue of material fact. Id. If this burden is satisfied, the nonmoving party must present evidence demonstrating [181 Wn.2d 396] material fact. Id. Summary judgment is appropriate if the nonmoving party fails to do so. Id.


¶ 8 The IIA created the workers' compensation system, which we have described as a " grand compromise" that gave employers " immunity from civil suit by workers" in return for giving injured workers " a swift, no-fault compensation system for injuries on the ...

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