During the 1960s and early 1970s, Roger Herring,
a member of the Asbestos Workers Union Local 7, worked for subcontractors of Todd Shipyards at Todd's work sites. Herring's asbestos exposure
ultimately caused fatal mesothelioma. Before Herring died he sued Todd.

In the years between the time Herring was exposed to asbestos and
when he developed mesothelioma, Todd declared bankruptcy. The main
issue for our review is whether Todd's bankruptcy discharged Herring's
claim. Specifically, Herring argues that Todd should have given actual notice
of its bankruptcy to Herring's union. We conclude that under controlling
federal law, Todd had no obligation to give actual notice of the bankruptcy to
Herring's union. We accordingly reverse the Court of Appeals and reinstate
the trial court's dismissal.

I

This is a tragic case. After working with asbestos for at least 20 years,
Herring was diagnosed with pleural thickening in 1986. Three years later, he
developed asbestosis, a scarring of his lungs. In 1989, Herring sued several
manufacturers of asbestos-containing products. Todd was not among the
defendants.

In 1987, after Herring's diagnosis, Todd filed a voluntary petition for
chapter 11 reorganization in the United States Bankruptcy Court for the
District of New Jersey. At the time, Todd likely knew it was at risk for
asbestos-related claims. At least Todd knew about several asbestos-related
employee claims that had been filed against it in New Orleans. The
bankruptcy court issued a bar claims date for filing proofs of claims in 1988.1

Opinion in PDF Format
Supreme Court of the State of Washington

Opinion Information Sheet

Docket Number: 78774-3
Title of Case: Herring v. Texaco, Inc.
File Date: 08/09/2007
Oral Argument Date: 05/17/2007

SOURCE OF APPEAL
----------------
Appeal from King County Superior Court
02-2-28063-3
Honorable Linda Lau

JUSTICES
--------
Gerry L. Alexander Signed Majority
Charles W. Johnson Signed Majority
Barbara A. Madsen Signed Majority
Richard B. Sanders Signed Majority
Bobbe J. Bridge Signed Majority
Tom Chambers Majority Author
Susan Owens Signed Majority
Mary E. Fairhurst Signed Majority
James M. Johnson Signed Majority

COUNSEL OF RECORD
-----------------

Counsel for Petitioner(s)
Walter Eugene Barton
Attorney at Law
1201 3rd Ave Ste 2900
Seattle, WA, 98101-3284

Philip Albert Talmadge
Talmadge Law Group PLLC
18010 Southcenter Pkwy
Tukwila, WA, 98188-4630

Counsel for Respondent(s)
Janet L Rice
Attorney at Law
500 Central Bldg
810 3rd Ave
Seattle, WA, 98104-1693

William Joel Rutzick
Schroeter Goldmark & Bender
810 3rd Ave Ste 500
Seattle, WA, 98104-1657

View the Opinion in PDF Format



IN THE SUPREME COURT OF THE STATE OF WASHINGTON

EDWIN HERRING, for himself and )
as personal representative of the estate of )
Roger Herring, )
)
Respondent, ) No. 78774-3
)
v. ) En Banc
)
TEXACO, INC.; GEORGIA-PACIFIC )
CORPORATION; INTALCO ALUMINUM )
CORPORATION; SABERHAGEN )
HOLDINGS, INC.; METROPOLITIAN )
LIFE INSURANCE COMPANY; CROWN )
CORK & SEAL COMPANY, INC.; SHELL )
OIL COMPANY; ARCO OIL & GAS )
COMPANY; LOCKHEED )
SHIPBUILDING COMPANY, )
)
Defendants, )
)
TODD SHIPYARDS CORPORATION, ) Filed August 9, 2007
)
Petitioner. )
____________________________________)

CHAMBERS, J. -- During the 1960s and early 1970s, Roger Herring,
a member of the Asbestos Workers Union Local 7, worked for subcontractors

Herring (Edwin) v. Texaco, Inc., et. al., No. 78774-3

of Todd Shipyards at Todd's work sites. Herring's asbestos exposure
ultimately caused fatal mesothelioma. Before Herring died he sued Todd.
In the years between the time Herring was exposed to asbestos and
when he developed mesothelioma, Todd declared bankruptcy. The main
issue for our review is whether Todd's bankruptcy discharged Herring's
claim. Specifically, Herring argues that Todd should have given actual notice
of its bankruptcy to Herring's union. We conclude that under controlling
federal law, Todd had no obligation to give actual notice of the bankruptcy to
Herring's union. We accordingly reverse the Court of Appeals and reinstate
the trial court's dismissal.
I
This is a tragic case. After working with asbestos for at least 20 years,
Herring was diagnosed with pleural thickening in 1986. Three years later, he
developed asbestosis, a scarring of his lungs. In 1989, Herring sued several
manufacturers of asbestos-containing products. Todd was not among the
defendants.
In 1987, after Herring's diagnosis, Todd filed a voluntary petition for
chapter 11 reorganization in the United States Bankruptcy Court for the
District of New Jersey. At the time, Todd likely knew it was at risk for
asbestos-related claims. At least Todd knew about several asbestos-related
employee claims that had been filed against it in New Orleans. The
bankruptcy court issued a bar claims date for filing proofs of claims in 1988.1

2

Herring (Edwin) v. Texaco, Inc., et. al., No. 78774-3

As a precondition to the court ordering a discharge of all potential claims,
Todd sent written notice of its bankruptcy to all known creditors,
stockholders, and noteholders. According to Michael Marsh, in-house
counsel for Todd,

Todd made diligent efforts to identify and notify potential
creditors of its bankruptcy. Such efforts included notifying
individuals on its accounts receivable and accounts payable
registers, notifying everyone who conducted business with Todd,
and notifying all unions representing Todd's employees. In
addition, I recall that Todd Shipyards identified its
subcontractors as entities to whom it would send actual notice.

Clerk's Papers (CP) at 48. Todd did not give actual notice to the unions of its
subcontractors,2 but it did publish notice of the bankruptcy and the bar date in

several newspapers, including The Seattle Times, Seattle Post-Intelligencer,
and the national editions of The New York Times and The Wall Street
Journal. Todd emerged from bankruptcy in 1989.
In 2002, Herring was diagnosed with mesothelioma, which ultimately
caused his death two years later. He filed a lawsuit based on that diagnosis,
and his estate is continuing this suit. Sometime after Herring's suit was filed,
Todd was added as a defendant. Todd was unaware of Herring and his
claims until about that time.

Neither Herring nor his union has received actual notice of Todd's
bankruptcy. Officers of Herring's union have submitted declarations
asserting that if they had received notice, they would have passed it on to
their members.3 It appears that the union itself was not one of Todd's

creditors.

In March 2004, Todd successfully moved for summary judgment on
the ground that Herring's claims had been discharged in the earlier
bankruptcy. The Court of Appeals reversed, holding due process required
Todd to give actual notice of its bankruptcy to Herring's union before
Herring's claims could have been discharged. Herring v. Texaco, Inc., 132
Wn. App. 479, 132 P.3d 1102 (2006). The divided Court of Appeals below
found that it was "reasonably ascertainable" that Todd would be liable to
Asbestos Workers Union members who worked on its site for asbestos-
related claims since it knew that similar claims against it were escalating and
concluded that the bankruptcy did not discharge Herring's claim. Id. at 486.
We accepted review, Herring v. Texaco, Inc., 153 P.3d 196, 2007 Wash.
LEXIS 72, and now reverse.

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