Case Style: Ronald Fagg v. Csk Auto, Inc.
Case Number: 69719-6
Judge: Michael S. Spearman
Court: Court of Appeals for Washington, Division I on appeal from the Superior Court, King County
Plaintiff's Attorney: Lloyd F. Leroy and Meredith Good
Defendant's Attorney: Kelly Corr, Steve Leatham, Anthony Todaro, Kelly H. Sheridan
Description: 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
defendants. We Affirm the trial court with respect to PWWS, but reverse with respect to
CSK and remand for further proceedings.
common law neg
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
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.
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
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
transite pipe and |>ther asbestos-containing products in Washington and Oregon in
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
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
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
8. Atsome point after 1968, he replaced the brakes on a 1957 Ford station wagon. CP at
9. In the late 1970s or early 1980s, he replaced the brakes on a 1965 Volkswagen. CP at
10. During thJe early 1980s, he replaced the brakes on a 1961 Ford. CP at 870-71.
11. Sometime in the 1980s, he removed the motor from a 1964 Mustang and put it into a
1956 Ford pickup. He also installed two exhaust manifold gaskets in the Mustang. CP
12. In the early 1980s, he replaced two exhaust manifold gaskets on a 1976 Ford. CP at
13. Sometime between 1982 and 1985, when he was living in Monroe, Washington, he
replaced the brakes and clutch on a second 1956 Ford pickup. CP at 867-68; 1033-
14. At an unspecified time, he replaced the brakes on a 1965 Mustang that he purchased
in the 1970s and owned for six or seven years. CP at 868.
larger amounts of dust from previously-installed brake shoes and clutch assemblies.
This resulted in "[k]ind of a cloud from all the dust that was in—that was in the brake
shoes." CP at 861
Fagg produced evidence that Bendix brakes contained chrysotile asbestos until
at least 1985 and that Victor gaskets contained asbestos until 1988. He also submitted
a declaration by his expert, Charles Ay, which concluded, without quantifying the extent
of Fagg's alleged exposure to asbestos fibers from these products, that "the installation
of the Bendix brakes and Victor gaskets caused the release of respirable asbestos
fibers into the air, and Mr. Fagg was injuriously exposed to respirable asbestos dust and
fibers as a result.'! CP at 373-374.
Fa;gg's Other Exposures to Asbestos-Containing Products
In addition to his exposure to PWWS and CSK products, Fagg acknowledged
extensive exposure to asbestos-containing products from other sources. From 1965-
1968, he served iji the navy as a machinist mate and was exposed on a daily basis to
asbestos from th^ gaskets and packing in pumps and valves that he repaired. As a part
of his job, he cut away asbestos-containing insulation on steam lines and cut and
installed new asbestos-containing insulation. He was also present when boiler tenders
opened boilers and disturbed asbestos-containing refractory and insulation.
Fagg also worked for Sunshine Construction from 1963-1965, the two years
before he entereq the Navy, and again from 1968-1972 or 1973. During those years he
used an estimated 400 five gallon buckets of asbestos-containing drywall compound
manufactured by Kaiser Gypsum and sold to his employer by Dunn Lumber.
After leaving Sunshine Construction in 1972 or 1973, Fagg went to work as an
equipment operator for the King County road department, where he stayed
approximately seyen years. In that job he took equipment, case backhoes and
caterpillar graders, to the repair facility at least once a week. Once in the facility, he was
in close proximity to mechanics as they serviced the asbestos-containing brakes on the
equipment, grinding and sanding the brakes to fit, and using compressed air to blow out
the brake dust.
Lastly, beginning in the early 1980s, Fagg would spend three months of each
year visiting the L|bby and Troy, Montana area; he lived in Troy year round from 2001
until 2007. Over the past several decades, hundreds of residents of Libby and the
of Troy have died and over 1,700 residents have been sickened as a
contamination from W.R. Grace & Co.'s vermiculite mine.3 In 1999,
result of asbestos
shortly before Fagg moved to Troy, the Environmental Protection Agency (EPA) began
cleanup efforts in the area. At the time, the measurable asbestos fiber level in the
ambient air in Libby was 10,000 times greater than in 2009, and asbestos fibers were
present in "garden soil" "driveway materials," and playgrounds. See Libbv Major
Milestones, U.S. Protection Agency, http://www2.epa.gov/reoion8/libbv-maiormilestones
(last undated Mar. 16, 2014); see also, Andrew Schneider, Uncivil Action: A
Town Left To Die, Seattle Post-Intelligencer, Nov. 18,1999 (reporting that by 1975,
"half a million pounds of asbestos a day were processed" in the mine, leading to "5,000
the Libby area under
not challenge the
notes that we may take judicial notice of the asbestos contamination and EPAefforts in
ER 201(b) because evidence of the contamination is in the public record. Fagg does
coiirt's notice of this fact.
Ibs./day of asbestos" dust expelled per day). Libby was placed on the EPA's superfund
list in 2002 and was declared a "Public Health Emergency" in 2009.
We review the trial court's entry of summary judgment de novo. Ranger Ins. Co.
v. Pierce County, *164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is
proper if, viewing the facts and inferences in favor of the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. ]d.; CR 56(c). Where liability depends upon a mixed question of fact and law,
and the facts are disputed, a motion for summary judgment should be denied. Rathvon
v. Columbia Pac. Airlines. 30 Wn. App. 193, 633 P.2d 122 (1981).
Applicability of the WPLA
Products liability cases in Washington are governed by the WPLA. The statute
immunizes product sellers from product liability claims except under certain enumerated
circumstances. It provides in relevant part:
(1) Except as provided in subsection (2) of this section, a product seller
other than a manufacturer is liable to the claimant only if the claimant's
harm was proximately caused by:
(a) The negligence of such product seller; or
(b) Bregch of an express warranty made by such product seller; or
(c) The intentional misrepresentation of facts about the product by such
product seller or the intentional concealment of information about the
product by such product seller.
RCW 7.72.040(1). The WPLA supplants common law claims or actions based on harm
caused by a product that arise on or after its effective date, July 26, 1981. Macias v.
Saberhagen Holdings, Inc., 175 Wn.2d 402, 408, 282 P.3d 1069 (2012) (citations
omitted). Insofar as a negligence claim is product based, the negligence theory is
subsumed within the WPLA product liability claim. Jd. (Citations omitted).
When a plaintiff's alleged exposure to injury-causing products is prolonged or
continuous in nature, as in the present case, Washington courts consider when
"substantially all" pf the exposure occurred in determining when the claim arises.
Macias, 175 Wn.2d at 408-09; Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 381 n.
1, 4, 198 P.3d 493 (2008); Koker v. Armstrong, 60 Wn. App. 466, 472 n.4, 804 P.2d 659
(1991). The parties agree the WPLA applies unless "substantially all" of the exposure
occurred before July 26, 1981.4 There is also no dispute that ifthe WPLA applies, the
respondents are irjimune from suit and Fagg's claims against them were properly
Under the l^/lodel Business Corporation Act, the term "substantially all" was
"nearly all." See Model Bus. Corp. Act § 12.01 cmt. 1 (1984). Other
accorded the term similar meaning. See e.g., Ice Service Co., Inc. v.
Comm'r of Internal Revenue, 30 F.2d 230, 230 (2d Cir. 1929) (holding that substantially
all, in the context bf when two corporations are affiliated for tax purposes, means all
intended to mean
except "a negligib e minority" or when a "practically negligible" amount remains); Hook
v. Astrue, 2010 WL 2929562, *4 (N.D. Ohio July 9, 2010) (holding, in the context of
App. 579, 584-85, 91
P.2d 527 (1993), we
the exposure to
decided the case
plaintiffs exposure to
perceive this to be a
with the cited
of the WPLA.
Viereck, and Braaten
approach is consistent with our caselaw. In Koker, 60 Wn. App. at 472, Viereck, 81 Wn.
5 P.2d 581 (1996), and Krivanek v. Fibreboard Corp.. 72 Wn. App. 632, 635, 865
held the WPLA did not apply because substantially all of the plaintiffs' exposures to
bqfore enactment of the statute. Likewise, in Braaten, the Supreme Court "noted that
products 'substantially occurred before the enactment' of the WPLA.... [and]
under common product liability and negligence law." Macias, 175 Wn.2d at 408 (citing
qt383 n.4). In Macias, the Courtexpressed the test for applicability of the WPLA
holding that the WPLA barred the claims in that case where substantially all the
asbestos occurred after enactment of the statute. Macias at 408-09. We do not
ifneaningful distinction because under the facts of Macias it is evident that, consistent
precedent, substantially all of the plaintiffs exposure did not occur before the effective date
Moreover, the Macias Court expressly stated that its holding was "[i]n accord with Koker,
social security disability analysis, that "substantially all means 'essentially all' as
opposed to 'in the main' or 'for the most part'").
In quantifying the term, courts have found "substantially all" to mean 85 percent
or more. Seee.g., Continental Can Co.. Inc. v. Chicago Truck Drivers. 916 F.2d 1154,
1158 (7th Cir. 1990) (assets in a pension fund); Central States Southeast &Southwest
Pension Fund v. Bellmont Trucking. Co.. 610 F. Supp. 1505, 1511 (N.D. Ind. 1985)
(employee contributions in a pension fund). Similarly, seventy-five percent and sixty-five
percent have been found not to be the equivalent of "substantially all." See §&, Theurer
v. Bd. of Review, |ndus. Com'n. 725 P.2d 1338 (Utah 1986) (assets acquired by dentist
upon acquisition c-f practice); James v. McCoy Mfg. Co., 431 So.2d 1147, 1149 (Ala.
1983) (assets acquired by an employer from a former employer). For purposes of this
case, however, we need not decide whether to define "substantially all" by its plain
meaning or quantitatively because the outcome is the same under either definition.
As a threshold matter, the parties dispute what should be measured in
determining whether substantially all of Fagg's exposure occurred before enactment of
the WPLA. Fagg Argues that we should consider his total exposure to asbestos from
any source and thjen determine whether substantially all of his exposure occurred
before July 26, 1981.5 If so, and a respondent's product was a part of that exposure,
then Fagg urges us to conclude that the WPLA does not apply to that respondent.
5Specifically he urges the court to consider all exposure during (1) his employment from 1963
through the late 1970s as a construction worker, naval machinist mate, and heavy equipment operator,
which involved exposure to various asbestos-containing products; (2) personal automotive repair jobs
between the 1950s and 1980s using products sold by CSK Auto; (3) work with transite pipe sold by
PWWS over a period of approximately ten and a half years beginning in the late 1970s; and (4) his time
vacationing and living near the Libby, Montana Superfund site from the 1980s to 2007.
Fagg analogizes the "substantially all" test for application of the WPLA to the
"substantial factor" causation test applied in toxic exposure cases. He argues that just
as a plaintiff need not "prove that a particular defendant's product was the sole cause of
the injury, only that it was present in the work environment when the exposure
occurred," neither should a plaintiff have to prove that substantially all of his or her
exposure to asbestos before July 26, 1981 was attributable to a particular defendant,
but only that the defendant's product made up a part of that exposure. Brief of Appellant
PWWS and CSK argue that we should measure a plaintiff's exposure to a
specific defendant's products and only ifsubstantially all of a plaintiffs exposure to that
defendant's product occurred before July 26, 1981 can we conclude that the WPLA
does not apply.6We agree with respondents.
In Macias, 175 Wn.2d 402, the plaintiffsued various sellers of asbestoscontaining
products, claiming he was exposed to their products in the naval shipyards
where he worked from 1978 to 2004.7 jd at 405. The Court found that the plaintiff's
claims as to somei of the defendant sellers arose under the WPLA because all or
substantially all of the plaintiff's exposure to those defendants' specific products
6Fagg arguels that the respondents are "judicially estopped" from making this argument because
it contradicts the pos tion they took in the trial court. The claim is without merit for several reasons. First,
PWWS argued for a pefendant-specific approach in its summary judgment motion below. CP at 102-03.
And, although CSK Auto argued for an aggregate approach below, itdid so without the benefit of the
Maciasdecision, whiph offered guidance on this issue. Lastly, we may affirm a grant of summary
judgment on an issue not decided by the trial court provided that it is supported by the record and is
within the pleadings ind proof. Plein v. Lackey. 149 Wn.2d 214, 222, 67 P.3d 1061 (2003). To the extent
thatthe parties argue for a defendant-specific approach on appeal, they do so to provide a basis for this
court to affirm the trial court based on the record in this case. We, therefore, consider the argument.
7The trial court considered this case when deciding PWWS's motion for summary judgment, but
not CSK Auto's.
occurred after the effective date of the WPLA. \± at 408-09. The Court applied the
WPLA to the plaintiff's claim even though he was exposed to asbestos-containing
products sold by s^ome of the defendants for at least two years before the effective date
of the statute. The Court specifically addressed the applicability of the WPLA to three of
the defendants, stating:
The record indicates that Macias maintained and cleaned
respirators manufactured by the Mine Safety Appliances Company
and North America Safety Products USA only after June 1981. The
WPLA clearly governs the claims against these defendants. With
respect to American Optical Corporation, the WPLA applies, as
explained, because substantially all of Mr. Macias's exposure to
asbestos occurred after the effective date of the Act.
Ig\ at 409, n.2. In Concluding that the WPLA applied to these defendants, the Court
reiterated the rule that "a 'manufacturer's duty to warn is restricted to warnings based on
the characteristics of the manufacturer's own products'; "[t]he law generally does not
require a manufacturer to study and analyze the products of others and warn users of
the risks ofthose products." Id. at 411, quoting Braaten, 165 Wn.2d at 385, citing
American Law of Products Liability 3d §32:9 (John D. Hodson &Richard E. Kay eds.
2004); 63A Am.Jur.2d Products Liability §1127 (1997). Thus, for purposes of
determining whether a claim arises under the WPLA as to a specific defendant, the
determinative factor is when all or substantially all of the plaintiff's exposure to that
defendants' particular asbestos-containing products occurred.
Simonetta y-Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008) and Braaten, 165
Wn.2d 373, are in accord. In Simonetta. a former navy machinist sued the manufacturer
of an evaporator, jjsed for desalinization ofsea water, alleging that the manufacturer
was liable for the machinist's asbestos related disease; the machinist had been
exposed to asbestos insulation, which the navy had used to encapsulate the evaporator
and was manufactured by a third party. In Braaten, a former pipe fitter sued the
manufacturers of various valves and pumps, alleging that they were liable for his
asbestos related disease; the pipe fitter had also been exposed to asbestos insulation,
manufactured by a third party and used by the navy to insulate the defendants'
products. In each sase, the Court focused on the asbestos-containing products that
were alleged to have caused the plaintiffs' injuries and whether those products were
manufactured by the defendants or were in the defendants' chain of distribution.
Concluding they were not, the Court held that the defendants had no duty to warn "of
the dangers of exposure to asbestos in products it did not manufacture and for which
the manufacturer Was not in the chain of distribution." Braaten, at 398.8
In light of Mjcias, Simonetta and Braaten, Fagg's contention that we take into
account all of his Exposure to asbestos from any source to determine when his claim
arose is untenable^. Whether the respondents owe Fagg a duty at all, the breach of
which gives rise to his claim, depends on the products alleged to have caused Fagg's
injuries and whether those products were in the respondents' chain of distribution.
Under the controlling cases, to the extent Fagg's claimed injuries arise from products
outside the respondents' "chain of distribution", no duty can be attributed to them.
Macias, 175 Wn.2d at 410-11. Thus, we conclude that the proper measure to determine
if Fagg's claims fa Is under the WPLA is whether all or substantially all his exposure to
the asbestos-containing products of each respondent occurred before July 26, 1981.
8 Simonetta and Braaten both involved manufacturer defendants, but the analysis regarding chain
of distribution seems to us equally applicable to seller-defendants who are outside the chain of
distribution of their co+defendants' products.
Applying the Analysis to PWWS and CSK
Viewing the: evidence in the light most favorable to Fagg, he was exposed to
PWWS's transite beginning with his employment with C&D in 1979 and concluding with
his employment with the City of Kirkland in 1990. Considering only the years of Fagg's
exposure to transite, it is evident that less than twenty-five percent of this time is before
July 26, 1981. Thus, Fagg's pre-WPLA exposure to transite is sold by PWWS
insufficient to constitute "substantially all" of his exposure to that product. By this
measure, Fagg's claim against PWWS falls under the WPLA.
The result does not change when we consider the relative extent of exposure
during each year of employment. Fagg made approximately fifty cuts and bevels during
his time at C&D (1979-1980); seventy-five cuts and bevels to new pipe (the rest
involved pipe already in the ground from unknown sources), an average of fifteen per
year, at Lake Washington (1980-1985); and twenty-five cuts and bevels, an average of
five per year, at City of Kirkland (1980-1990). Of his approximately 150 total cuts and
bevels between 1979 and 1990, an average of fifty-nine cuts and bevels, or thirty-nine
percent, occurred before July 26, 1981. Because this amount cannot be considered
substantially all, the trial court properly concluded that Fagg's claims arose under the
WPLA and did not err in dismissing them.
Fagg claims he was exposed to asbestos-containing auto parts purchased from
CSK on fourteen occasions beginning in the 1950s through the 1980s. Viewing the
evidence in the light most favorable to him, thirteen of those exposures occurred before
July 26, 1981: Fagg testified that seven occurred before 1981, five in the early 1980s,
and one in late 1970 or early 1980. Therefore, we conclude that because substantially
all of Fagg's exposure to CSK's asbestos-containing products occurred before July 26,
1981, the WPLA does not apply with respect to Fagg's claims against CSK. The trial
court erred in entering summary judgment for CSK on this ground.9
Affirm with Respect to PWWS. Reverse with respect to CSK.
9Although CSK also moved for summary judgment on grounds that Fagg failed to raise a
disputed issue of fact regarding causation, the trial court did not rule on that issue and CSK did not brief
the issue on appeal. Apcordingly, we do not reach that issue in our opinion.
Outcome: Affirm with Respect to PWWS. Reverse with respect to CSK.