Ronald Fagg v. Csk Auto, Inc.

Over the course of several decades, Ronald Fagg was

exposed to various asbestos-containing products at work sites, during personal

automotive repairs, during time vacationing and living in the Libby, Montana 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 against them were barred by the Washington Product Liability Act,

ch. 7.72 RCW (WPLA). The trial court agreed and dismissed the claims as to both

No. 69719-6-1/2

defendants. We Affirm the trial court with respect to PWWS, but reverse with respect to

CSK and remand for further proceedings.

In October

asbestos related

common law neg

FACTS

2009, the appellant, Ronald Fagg, was diagnosed with asbestosis and

pleural disease. He initiated this action on January 29, 2010, alleging

igence and strict liability against a number of defendants who were

allegedly responsible for his exposure to asbestos, including the respondents, PWWS

and CSK.1

Fagg claimed that the defendants were jointly and severally liable for his

asbestos related injuries, which resulted from (1) exposure to various asbestoscontaining

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 ten and a half 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 £001 to 2007.

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

1PWWS was added by amended complaint on September 20, 2010. Bartell Asbestos Settlement

Trust; Certainteed Corporation, Dunn Lumber Company, Inc., E.J. Bartell's, CNH America LLC,

Caterpillar Inc., ExxonMobil Oil Corporation, H.D. Fowler Company, Mobil Oil Corporation and Fifth Doe

through One Hundred Doe are not parties to this appeal.

No. 69719-6-1/3

and CSK product? was a substantial factor in causing his disease. The trial court

granted PWWS's and CSK's motions for summary judgment on the first ground but did

not rule on the second. Fagg appeals.

Faqq's Exposure to Asbestos-Containing Products Sold bv PWWS

For six mopths during 1979-1980, Fagg worked for C&D Enterprises (C&D)

installing transite Water mains and hydrants. From 1980 to 1985 he worked for Lake

Washington Sewer and Water (Lake Washington), as a backhoe operator and repaired

transite pipes. From 1985 to 1990, he worked as a backhoe operator for the City of

Kirkland. Each of these jobs involved cutting twenty foot lengths of transite pipe and

beveling the edges with a power saw. Each cut and bevel created large quantities of

dust. Fagg personally made forty to fifty cuts and bevels of transite pipe during his

employment with C&D. At Lake Washington, he made or watched from a close distance

over one hundred cuts and fifty bevels of transite pipe, about half of which involved

pipes already in the ground and half of which involved new pipes. CP at 427-28, 430-31.

At the City of Kirkland, he made approximately fifteen cuts and ten bevels of transite

pipe.

Fagg testi

Washington, and

ied that the new transite pipe he worked with at C&D, Lake

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

No. 69719-6-1/4

transite pipe and |>ther asbestos-containing products in Washington and Oregon in

1984.

Fagg testif ed that, between 1979 and 1980, while he was employed with C&D,

from time to time

outlet. He did not

also testified that

understood those

he would personally pick up transite pipe from PWWS's Woodinville

visit either of PWWS's other branches in Seattle or Tacoma. Fagg

trucks would deliver transite pipe to the C&D storage yard. He

trucks, which were operated by C&D's drivers, were carrying transite

from PWWS. Fagg estimated that at least twenty or thirty of the cuts and ten 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 only sold transite pipe out

of its Seattle and Tacoma locations.

Fagg also estimated that most of the new transite he worked with at Lake

Washington had borne from PWWSbecause 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.

Disputing pWWS's contention that it stopped selling transite in Washington and

Oregon in 1984, ^agg testified that truck drivers employed by Lake Washington and the

City of Kirkland ddelivered transite from PWWS to his work sites during 1984-90.

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

It is undisputed that Fagg used auto parts sold by Al's Auto Supply and Schuck's

Auto Supply—subsidiaries of CSK—in connection with brake, clutch, or gasket repair

work on several Automobiles from the 1950s to the 1980s. The record shows that Fagg

No. 69719-6-1/5

did fourteen repair jobs during that time.2 According to Fagg's unrebutted testimony,

seven jobs occurred before 1981 and one after July 26, 1981. Of the remaining six jobs,

four occurred during the early 1980s and one occurred in the late 1970s or early 1980s.

Fagg was unable to estimate an approximate date for the remaining job.

Fagg always bought new Bendix brakes and Victor gaskets at either Al's or

Schuck's. He never removed any Bendix or Victor parts that he had previously installed.

Nor did he arc or grind any of the new Bendix or Victor parts he had purchased. In

general, he noticed no dust emitting from the new parts. But, "once in a blue moon" he

would take a few minutes to sand a small "bump" on a brake part, which would produce

a miniscule amount of dust. CP at 1026. Fagg also used compressed air to blow away

2Although the parties disagree on the precise number of repairs Fagg made using CSK parts, the

record from below discloses the following:

1. In the 19ios, he replaced the brakes on his mother's 1949 Ford. CP at 859-60.

2. In the 1950s, he adjusted the clutch on a 1949 Ford pickup. CP at 876-77. 3. In the late^ 1950s, he replaced the brakes on a1953 Ford. CP at 862-63.

4. In the early 1960s, he replaced the brakes and did two exhaust manifold gasket

replacements on a 1957 Ford Ranchero. CP at 871-73.

5. In the earjly to mid-1960s, He replaced the brakes and two exhaust manifold gaskets

on a 1956 Ford pickup. CP at 863-64.

6. In the 1960s, he replaced the brakes on a 1956 Ford pickup. CP at 865-66.

7. In the 19

Affirm with Respect to PWWS. Reverse with respect to CSK.