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Cameron v. Atlantic Richfield Co.

Court of Appeals of Washington, Division 1

May 13, 2019

LINDA CAMERON for Herself and as Personal Representative for the Estate of GARY R. CAMERON, Deceased, Appellant,
v.
ATLANTIC RICHFIELD COMPANY a/k/a ARCO; ASBESTOS CORP., LTD.; CBS CORPORATION, f/k/a Westinghouse Electric Corporation; CROWN CORK & SEAL COMPANY, INC.; FOSTER WHEELER ENERGY CORPORATION; GENERAL ELECTRIC COMPANY; LONE STAR INDUSTRIES, INC.; METROPOLITAN LIFE INSURANCE COMPANY; SABERHAGEN HOLDINGS, INC.; and TRANSALTA CENTRALIA GENERATION LLC, Defendants, PACIFICORP, dba Pacific Power & Light Company, Respondent.

          Leach, J.

         Gary Cameron died in 2012 of mesothelioma caused by asbestos exposure. Gary's wife, Linda Cameron, [1] appeals a summary judgment dismissing her claims against PacifiCorp, one of the companies she claims exposed Gary to asbestos. She challenges the trial court's conclusion that the six-year construction statute of repose, [2] which applies to improvements on real property, barred her claims. Cameron asserts that the current statute of repose applies and does not bar her claims. But the date of substantial completion of construction provides the operative date for application of the statute. Here, substantial completion occurred in 1972, so the 1967 version of the statute applies and bars her claims arising from construction activities but not those arising from PacifiCorp's status as a premises owner. We affirm in part, reverse in part, and remand for further proceedings.

         FACTS

         The parties do not dispute the following facts. Pacific Power & Light Company, PacifiCorp's predecessor (together, "PacifiCorp"), and seven other utility companies sponsored construction of the Centralia Steam Plant (Plant) in the 1970s. PacifiCorp contracted with Bechtel Corporation for engineering and construction management and for construction of the Plant. In 1970, Bechtel hired Owens Corning Fiberglass to install thermal insulation materials at the Plant. Asbestos was installed as part of the insulation. From April 26, 1971, to December 3, 1971, Gary Cameron worked at the Plant as a boilermaker. Construction finished in 1972. PacifiCorp retained its ownership interest in the Plant until 2000.

         Gary was exposed to asbestos over the course of his career. He was diagnosed with mesothelioma in March 2012 and died in September 2012. Cameron sued PacifiCorp and others, claiming, in part, that a dangerous condition at PacifiCorp's facilities injured Gary. PacifiCorp asked the trial court to dismiss Cameron's claims against it on summary judgment. Cameron and PacifiCorp then agreed to address only the statute of repose issue and defer consideration of the remaining issues until the completion of additional discovery. The trial court granted PacifiCorp's dismissal request, concluding that the construction statute of repose barred Cameron's claims. Cameron appeals.

         STANDARD OF REVIEW

         This court reviews summary judgment orders de novo and performs the same inquiry as the trial court.[3] Summary judgment is appropriate when the evidence, viewed in a light most favorable to the nonmoving party, shows no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law.[4]

         Statutory interpretation is a question of law that this court reviews de novo.[5] When a statute is unambiguous, a reviewing court gives effect to the plain language of the statute.[6]

         ANALYSIS

         Cameron makes three related claims: that the current version of the construction statute of repose applies to this case, that genuine issues of material fact exist about whether the statute bars her claims, and that no version of the statute bars her claims arising out of PacifiCorp's status as a premises owner. We disagree about the first two claims and agree on the third one.

         "A statute of repose terminates the right to file a claim after a specified time even if the injury has not yet occurred."[7] Two statutes comprise the construction statute of repose. RCW 4.16.300 defines the scope of the statute and describes those entitled to claim its protection. RCW 4.16.310 defines when this statute of repose bars a claim. Together, they bar certain claims arising from construction of any improvement upon real property that have not accrued within six years after substantial completion of construction.

         The history of this statute of repose bears on the outcome of this case. The legislature first enacted it in 1967.[8] In 1986, the legislature amended RCW 4.16.300 to exclude manufacturers from the statute's protections.[9] In 2004, the legislature again amended this statute, this time removing the language about manufacturers and specifically identifying the persons protected by the statute.[10]

         The 1967 version of RCW 4.16.300 provided,

RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property.[11]

         The 1986 version provided,

RCW 4.16.300 through 4.16.320 shall apply to all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property. This section is intended to benefit only those persons referenced herein and shall not apply to claims or causes of action against manufacturers.[12]

         In 2004, the legislature amended both RCW 4.16.300 and Laws of 1986, chapter 305, section 703. This amendment changed the description of the persons protected by the statute: "This section is specifically intended to benefit persons having performed work for which the persons must be registered or licensed under RCW 18.08.310, 18.27.020, 18.43.040, 18.96.020, or 19.28.041, and shall not apply to claims or causes of action against persons not required to be so registered or licensed."[13] So the current version of the statute protects only persons registered or licensed as an architect, contractor, engineer or land surveyor, landscape architect, or electrician.[14]

         The 1967 version of RCW 4.16.310 provided,

All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues.[15]

         The 1986 (current) version of RCW 4.16.310 provides,

All claims or causes of action as set forth in RCW 4.16.300 shall accrue, and the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. The phrase "substantial completion of construction" shall mean the state of completion reached when an improvement upon real property may be used or occupied for its intended use. Any cause of action which has not accrued within six years after such substantial completion of construction, or within six years after such termination of services, whichever is later, shall be barred: Provided, That this limitation shall not be asserted as a defense by any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues. The limitations prescribed in this section apply to all claims or causes of action as set forth in RCW 4.16.300 brought in the name or for the benefit of the state which are made or commenced after June 11, 1986.[16]

         The 1967 Version of the Construction Statute of Repose Applies

         The parties dispute which version of the statute of repose applies to Cameron's claim. She asserts that the current statute applies. She contends that the date her claim accrued, 2012, determines which version of the statute applies. She also claims that the 2004 amendment to RCW 4.16.300 applies to actions filed after August 1, 1986, so the current statute applies. Alternatively, Cameron asserts that RCW 4.16.300 applies retroactively. We disagree.

         First, Cameron relies on Washburn v. Beatt Equipment Co.[17] Washburn suffered serious injuries from a 1986 propane fuel system explosion.[18] Beatt installed this propane system in 1969. Because our Supreme Court applied the 1986 statute of repose, the statute in effect when Washburn's claim accrued, and not the 1967 version, [19] Cameron asserts Washburn shows that the statute in effect when a claim accrues controls. But in Washburn, the issues before the court about the statute of repose concerned whether the pipeline was an "improvement" on real property and whether the contractor qualified as a "manufacturer" of the pipeline system; the parties did not contest which version of the statute applied to Washburn's claim.[20] And the Washburn opinion contains no analysis of this issue.

         While not relied on by Cameron for this issue, two other reported Washington cases apply the statute of repose in effect when the injured party's claim accrued. In neither case did the court analyze the issue before this court.

         In Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., [21] a property owner and lessee sued a contractor for property damage allegedly caused by faulty installation of a refrigeration system substantially completed in 1961. This predated the first statute of repose. The refrigeration system failed in 1968. Our Supreme Court applied the 1967 statute, the one in effect when plaintiffs' claims accrued, to bar the claim.[22] No party claimed that this statute did not apply.

         And in Pinneo v. Stevens Pass, Inc., [23] the court applied the 1967 statute to a project substantially completed in 1960. But the court considered only one issue, whether a ski lift constituted, as a matter of law, "'an improvement upon real property.'"[24] No party claimed that the 1967 statute did not apply.

         The parties have cited only one Washington state court decision analyzing the relationship between the statute of repose's bar, the date of completion, and the date a plaintiff's claim accrues. In 1000 Virginia Ltd. Partnership v. Vertecs Corp., [25] decided after Washburn, Yakima Fruit, and Pinneo, our Supreme Court described an application of the statute of repose. It stated, "[l]f, for example, a negligence claim against a contractor arising out of the construction of a building does not accrue until seven years after substantial completion, it is barred by RCW 4.16.310 because it did not accrue within the six-year period of the statute of repose."[26] In the court's example, the statute of repose bars a negligence claim before it accrues. This result depends upon the date of substantial completion, not the date the plaintiff's claim accrues. Because Washburn, Yakima Fruit, and Pinneo provide no analysis of the issue before this court and 1000 Virginia does, we follow that guidance about the operation of a statute of repose. A court looks to the date of substantial completion to determine which version of the statute of repose applies.

         Cameron also cites the principle that a court "look[s] to the subject matter regulated by the statute and considers its plain language to determine the precipitating or triggering event."[27] RCW 4.16.310 states that it does not apply to "any owner, tenant or other person in possession and control of the improvement at the time such cause of action accrues." She maintains that because ownership or tenancy may be relinquished or regained, it is not possible to determine whether the statute applies in any one instance until a claim actually accrues.

         As the trial court aptly noted, Cameron's argument that the statute cannot be applied until a claim has accrued "conflicts with the purpose of the statu[t]e of repose, which was to bar claims that arise after completion of construction, even if no injury had yet occurred." Because the date of substantial completion starts the six-year period after which a person's claim is barred, the subject matter and plain language of the statute support using the date of substantial completion to determine which version of the statute of repose applies. Here, ...


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