Verdict Against Brand Insulation Upheld on Various Grounds, Including that General Negligence Duty of Care Recognized for Take Home Exposure Court of Appeals of Washington, January 23, 2017

The trial court found in favor of the plaintiff, finding Brand Insulation, Inc. liable for the mesothelioma suffered by Barbara Brandes due to secondary asbestos exposure from her husband’s work at ARCO. Brand appealed, and the plaintiff appealed the remittitur reducing the damages award from $3.5 million to $2.5 million. The court affirmed the verdict and reversed the remittitur.

Brand was an insulation subcontractor during construction of the ARCO Cherry Point Refinery. At first Brand installed asbestos-free insulation, but later switched to asbestos insulation due to poor performance. The plaintiff’s husband Raymond was an operator at the refinery, and the plaintiff washed his clothes. The plaintiff died prior to closing argument. Prior to trial, Brand moved for summary judgment on numerous grounds, including the contractor’s statute of repose.

First on appeal, Brand argued the six year construction statute of repose barred the plaintiff’s claims because the insulation was an improvement on real property. The court considered whether it should analyze this issue after the case proceeded to trial and judgment. Washington case law held that once a trial on the merits was held, denials of summary judgment may be reviewed where the disputed issues of fact were not material and the decision turned solely on a substantive issue of law. Here, the disputed facts were material, because they included whether the insulation was integral to the refinery. Since material disputed facts were resolved by the trier of fact, the summary judgment order could not be appealed because it was followed by a trial.

Second, Brand argued that no precedent established a duty of care in a take-home exposure case where the defendant did not have control over the actions of the individual exposed to asbestos. Here, Brand’s failure to label the insulation as containing asbestos and failure to contain the asbestos dust created an unreasonable risk of harm. Exposure of families to this dust was foreseeable. Although Brand argued that Washington law recognized a duty for take-home exposure only for strict liability and premises liability where the premises owner was also the general contractor, the court stated that: “The recognition of a duty of care in the context of strict liability and premises liability does not preclude recognizing such a duty here under well-established principles of negligence.”

Third, Brand argued that since the plaintiff did not demonstrate how much asbestos she was exposed to, there was an insufficient basis on which to find causation. The court reviewed the four elements outlined by Washington law in determining whether defendant’s conduct was a substantial factor in causing plaintiff’s harm. The evidence in this case was sufficient for the jury to find causation.

Fourth, Brand argued the trial court erred in instructing the jury to consider whether Brand was negligent with respect to its sales of insulation at the refinery; under the Restatement (Second) of Torts definitions of “seller” and “supplier,” it was neither. Again, the evidence in this case showed that Brand was both, because it ordered, supplied, and sold the insulation.

Fifth, the court found that the trial court did not err in refusing to give a “contractor’s defense” instruction. Brand also argued the trial court erred in allocating 20 percent of settlement proceeds to a future wrongful death claim, because the settlement of plaintiff’s personal injury claim extinguished a wrongful death claim. The court pointed out that under principles of joint and several liability, Brand opposed the allocation because it reduced the amount of set-off. The trial court did not err.

The trial court also did not err in permitting the work simulation video because demonstrative evidence was appropriate when conditions in the video were substantially similar to real life. Further, although the plaintiff died during trial, the amount of damages was not unmistakably the result of passion or prejudice, and was supported by substantial evidence, such that remittitur was reversed.

Read the full decision here.

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