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Clayton v. Air & Liquid Systems Corp.

United States District Court, W.D. Washington, Seattle

August 9, 2019

WILLIAM R. CLAYTON, et al., Plaintiffs,




         Before the court are two motions: (1) Defendant Syd Carpenter Marine Contractor, Inc.'s (“Syd Carpenter”) motion for partial summary judgment (Syd MSJ (Dkt. # 86)); and Plaintiffs William R. Clayton and Jill D. Clayton's (collectively, “Plaintiffs”)[1] motion for partial summary judgment (Pls. MSJ (Dkt. # 117)). The parties have filed responses and replies to the motions. (Syd Resp. (Dkt. # 95); Syd Reply (Dkt. # 100); Pls. Resp. (Dkt. # 125); Pls. Reply (Dkt. # 135).) The court has considered the motions, the parties' submissions concerning the motions, the relevant portions of the record, and the applicable law. Being fully advised, [2] the court GRANTS in part and DENIES in part Syd Carpenter's motion for partial summary judgment and GRANTS Plaintiffs' motion for partial summary judgment.


         A. Mr. Clayton's Alleged Exposure

         Mr. Clayton developed mesothelioma after exposure to asbestos-containing products during his service in the United States Navy. (See 5/28/19 Aliment Decl. (Dkt. # 96) ¶ 2, Ex. 1 (“9/26/18 Clayton Dep.”) at 33:9-12; 5/28/19 Aliment Decl. ¶ 2, Ex. 5 (“Durrani Report”) at 3; SAC (Dkt. # 1-1) § III.) Mr. Clayton's asbestos exposure occurred while he served on the USS Badger from February 1972 through March 1973. (9/26/18 Clayton Dep. at 33:9-12.) Mr. Clayton served as an interior communications (“IC”) fireman. (Id. at 33:9-24; 5/28/19 Aliment Decl. ¶ 2, Ex. 2 (“5/28/18 Clayton Dep.”) at 31:6-9.) In this position, Mr. Clayton worked “all throughout the ship, ” including performing “maintenance on the sound-powered phones, ” and working on the ship's “sump-pumping sensors and gauges” and “in the boiler room.” (5/28/18 Clayton Dep. at 33:5-21; 42:23-43:8.) In addition, Mr. Clayton states that he worked on “asbestos insulated pipes” and that there were “quite a few piles of insulated pipe on the boat.” (Id. at 33:5-21; 45:2-16; 9/26/18 Clayton Dep. at 76:12-78:12.)

         The USS Badger also contained insulation pads, sometimes referred to as blankets, that were used to insulate unusually shaped items, such as pumps, valves, and sensors. (See 9/26/18 Clayton Dep. at 76:23-77:8; 5/28/19 Aliment Decl. ¶ 2, Ex. 3 (“1st Norton Dep.”) at 45:5-46:3.) The ship's IC fireman would occasionally have to remove these pads. (1st Norton Dep. at 45:24-46:3.) Further, the ship's sensors were covered in significant amounts of insulation, which inhibited the sensor's performance. (See Id. at 40:24-41:11 (“A lot of times, especially early on, it wasn't so much that the sensor was bad. It was just covered with so much insulation that it couldn't do its job.”).) The ship's IC fireman would “cut that insulation off” to help the sensors work. (Id.)

         As a low-ranking seaman, Mr. Clayton was also tasked with repairing insulation that came loose during the ship's operations. (5/28/18 Clayton Dep. at 33:5-21; 41:5-42:22.) When the insulation “vibrated loose” off a pipe, Mr. Clayton would “take it down, paint the pipe and then put [the insulation] back up and secure it.” (Id.) The insulation also came loose in the form of dust and dirt, including when the USS Badger's guns were in use. (Id.) Mr. Clayton recalls that, when the ship was not at port, he would always wake up with “dust all over the bunk and [his] face” and on his pillow. (Id.)

         B. Syd Carpenter's Services

         Syd Carpenter was a California-based shipyard services contracting company that ceased doing business in or about 2002. (J. Carpenter Decl. (Dkt. # 88) ¶ 3.) “Among the services Syd Carpenter performed was installation of insulation on U.S. Navy ships.” (Id. ¶ 4.) Syd Carpenter performed this service “pursuant to subcontracts with shipyards that, in turn, had contracts with the Navy to build and repair ships pursuant to Navy specifications.” (Id.) According to James Carpenter, a former president of Syd Carpenter, the company “performed insulation installation services on the [USS] Badger in the early 1970s at the shipyard in San Pedro, California owned and run by Todd Shipyard.” (Id. ¶¶ 2, 4.)

         Syd Carpenter claims that it “does not have documents showing whether the insulation it installed on the [USS] Badger was purchased by Syd Carpenter, Todd Shipyard, the Navy, or some other entity.” (Id. ¶ 5.)[3] Syd Carpenter admits that it “purchase[d] insulation” “for some of the installation services it performed at Todd Shipyard.” (Id.) Syd Carpenter also admits that it “suppl[ied] materials” in connection with its work on Navy ships. (5/28/19 Aliment Decl. ¶ 2, Ex. 11 (“1st J. Carpenter Dep.”) at 79:23-80:5.) However, Syd Carpenter claims that any insulation it purchased was “in compliance with Navy specifications and/or Todd Shipyard requirements, from insulation vendors qualified by the Navy and appearing on U.S. Navy Qualified Product Lists (‘QPLs').” (J. Carpenter Decl. ¶ 5; see also 5/28/19 Aliment Decl. ¶ 2, Ex. 9 (“S. Carpenter Dep.”) at 12:11-26 (explaining that the government would “specify the type of material we're to use”).) Syd Carpenter asserts that any insulation it may have supplied in connection with its work on the USS Badger “was for use in the performance . . . of a services contract for the installation of insulation on that ship.” (J. Carpenter Decl. ¶ 5.) Syd Carpenter also asserts that it “was never a manufacturer or distributor of any products, asbestos-containing or otherwise.” (Id. ¶ 6.)

         In addition to installing insulation on the USS Badger, Syd Carpenter performed “flooring and boiler refractory work.” (5/28/19 Aliment Decl. ¶ 2, Ex. 12 (“Interrog. Resp.”) at 7-8.) Mr. Carpenter recalls that Syd Carpenter installed “amosite asbestos pads, ” among other things, on the USS Badger. (Id.) Mr. Carpenter also testifies that, during the time Syd Carpenter worked on the USS Badger, Syd Carpenter “fabricated insulation pads” for installation on the ships. (1st J. Carpenter Dep. at 19:7-22:17.) According to Mr. Carpenter, to make these pads, “we take a piece of cloth; we sew it, turn it inside out, and then we stuff it with the interior stuff. We assemble it with the interior stuff.” (Bernhardt Decl. (Dkt. # 101) ¶ 2, Ex. 1 (“2d J. Carpenter Dep.”) at 157:15-158:8.) Syd Carpenter attached these pads with copper wire to “Ts and valves and uneven areas.” (Id; 1st J. Carpenter Dep. at 19:7-22:17.)[4] The cloth that was used contained asbestos. (1st J. Carpenter Dep. at 19:7-22:17.) Syd Carpenter would store “[s]ome” of these pads at its warehouse at Todd Shipyard. (Id. at 28:1-29:4.)

         C. Procedural History

         Plaintiffs brought this action against numerous Defendants in King County Superior Court on April 10, 2018. (See Not. of Rem. (Dkt. # 1).) On May 23, 2018, Defendant Vigor Shipyards, Inc. (“Vigor”) removed the case to federal court. (See id.) “In an effort to secure a trial date during Mr. Clayton's lifetime, Plaintiffs severed Vigor from the case and re-filed their remaining claims in state court.” (Pls. MSJ at 4.) On September 28, 2018, Syd Carpenter removed the second case to federal court. See William R. Clayton v. IMO Indus., Inc., No. C18-1437JLR (W.D. Wash.), Dkt. # 1. On November 9, 2018, the court consolidated the actions. (See 11/9/18 Order (Dkt. # 70).) Syd Carpenter is the only remaining active Defendant in this action. (Pls. MSJ at 5; see Dkt.) All other Defendants have either been terminated or are in the process of settlement. (See Dkt.)

         Syd Carpenter moves the court for summary judgment on “all claims” against it except negligence and spoliation. (See Syd MSJ at 1; Syd Reply at 4.) In addition, Plaintiffs move for summary judgment on Syd Carpenter's government contractor defense. (See Pls. MSJ.)

         The court addresses the motions in turn.

         III. ANALYSIS

         A. Summary ...

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