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Fagg v. Bartells Asbestos Settlement Trust

Court of Appeals of Washington, Division 1

December 8, 2014

Ronald Fagg, Appellant ,
Bartells Asbestos Settlement Trust et al., Defendants, CSK Auto, Inc., et al., Respondents

Meredith B. Good (of Brayton Purcell LLP ) ( Lloyd F. Leroy, of counsel ), for appellant.

Stephen G. Leatham (of Heurlin Potter Jahn Leatham & Holtmann ) and Kelly P. Corr, Anthony Todaro, and Kelly H. Sheridan (of Corr Cronin Michelson Baumgardner & Preece LLP ), for respondents.

WE CONCUR: Verellen, J., Cox, J.


[184 Wn.App. 805] Spearman, C.J.

[¶1] Over the course of several decades, Ronald Fagg was exposed to various asbestos-containing products at work sites, during personal automotive repairs, and during time vacationing and living in the Libby, Montana,

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area. He was later diagnosed with asbestosis and asbestos related pleural disease. In this action, he seeks damages from a number of seller and manufacturer defendants who he alleges are liable for his injuries under common law theories of negligence and strict liability. Two of the seller defendants, Pacific Water Works Supply Inc. (PWWS) and CSK Auto Inc. (CSK) moved for summary judgment on the grounds that Fagg's common law claims [184 Wn.App. 806] against them were barred by the " Washington Product Liability Act" (WPLA), ch. 7.72 RCW. The trial court agreed and dismissed the claims as to both defendants. We affirm the trial court with respect to PWWS, but reverse with respect to CSK and remand for further proceedings.


[¶2] In October 2009, the appellant, Ronald Fagg, was diagnosed with asbestosis and asbestos related pleural disease. He initiated this action on January 29, 2010, alleging common law negligence and strict liability against a number of defendants who were allegedly responsible for his exposure to asbestos, including the respondents, PWWS and CSK.[1]

[¶3] Fagg claimed that the defendants were jointly and severally liable for his asbestos related injuries, which resulted from (1) exposure to various asbestos-containing products during his employment as a construction worker, naval machinist mate, and heavy equipment operator from 1963 through the late 1970s, (2) personal automotive repair jobs using asbestos-containing parts between the 1950s and 1980s, (3) work with cementitious asbestos-containing pipe (transite) over a period of approximately 10½ years, beginning in the late 1970s, and (4) vacationing in the vicinity of the Libby, Montana, superfund site from the early 1980s to 1990s and living there from 2001 to 2007.

[¶4] PWWS and CSK each moved for summary judgment, claiming that Fagg's negligence and strict liability claims were precluded by the WPLA, that they are immune from liability under the WPLA, and that Fagg failed to establish that exposure to PWWS and CSK products was a substantial factor in causing his disease. The trial court granted [184 Wn.App. 807] PWWS's and CSK's motions for summary judgment on the first ground but did not rule on the second. Fagg appeals.

Fagg's Exposure to Asbestos-Containing Products Sold by PWWS

[¶5] For six months during 1979-1980, Fagg worked for C& D Enterprises installing transite water mains and hydrants. From 1980 to 1985 he worked for Lake Washington Sewer and Water operating a backhoe and repairing transite pipes. From 1985 to 1990, he worked as a backhoe operator for the city of Kirkland. Each of these jobs involved cutting 20' lengths of transite pipe and beveling the edges with a power saw. Each cut and bevel created large quantities of dust. Fagg personally made 40 to 50 cuts and bevels of transite pipe during his employment with C& D. At Lake Washington, he made or watched from a close distance over 100 cuts and 50 bevels of transite pipe, about half of which involved pipes already in the ground and half of which involved new pipes. Clerk's Papers (CP) at 427-28, 430-31. At the city of Kirkland, he made approximately 15 cuts and 10 bevels of transite pipe.

[¶6] Fagg testified that the new transite pipe he worked with at C& D, Lake Washington, and city of Kirkland came from two different suppliers, one of which was PWWS, which began selling transite pipe in 1957 or 1958. In the early to mid-1960s, PWWS made deliveries of transite pipe to individual customers. In 1967 or 1968, PWWS sold its only delivery truck and permanently ceased its delivery service. But customers were still able to purchase transite pipe from PWWS retail outlets and transport the product themselves. PWWS offered evidence that it stopped selling transite pipe and other asbestos-containing products in Washington and Oregon in 1984.

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[¶7] Fagg testified that between 1979 and 1980, while he was employed with C& D, from time to time he would personally pick up transite pipe from PWWS's Woodinville [184 Wn.App. 808] outlet. He did not visit either of PWWS's other branches in Seattle or Tacoma. Fagg also testified that trucks would deliver transite pipe to the C& D storage yard. He understood that those trucks, which were operated by C& D's drivers, were carrying transite from PWWS. Fagg estimated that at least 20 or 30 of the cuts and 10 of the bevels he made while employed by C& D involved transite pipe sourced from PWWS. PWWS contradicted Fagg's testimony with evidence that its Woodinville location did not open until 1981 at the earliest and that before 1981, PWWS sold transite pipe only out of its Seattle and Tacoma locations.

[¶8] Fagg also estimated that most of the new transite he worked with at Lake Washington had come from PWWS because they " used to give ... the best deal" and because of his conversations at the time of delivery with Lake Washington's truck driver. Clerk's Papers (CP) at 429-30.

[¶9] Disputing PWWS's contention that it stopped selling transite in Washington and Oregon in 1984, Fagg testified that truck drivers employed by Lake Washington and the city of Kirkland delivered transite ...

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