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IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
ESTATE OF BARBARA BRANDES, No. 73748-1-1 Respondent/Cross-Appellant, DIVISION ONE v.
BRAND INSULATIONS, INC. UNPUBLISHED OPINION
Appellant/Cross-Respondent.
and
KAISER GYPSUM COMPANY, INC., ATLANTIC RICHFIELD COMPANY.HANSON PERMANENTE CEMENT, INC., f/k/a KAISER CEMENT CORPORATION; METALCLAD INSULATION CORPORATION; METROPOLITAN LIFE INSURANCE COMPANY; and UNION CARBIDE CORPORATION,
Defendants. FILED: January 23. 2017
Spearman, J. — Brand Insulation, Inc. (Brand) appeals the trial court
verdict finding it liable for the asbestos-related personal injuries of Barbara
Brandes (Barbara).1 Brand subcontracted to install asbestos-containing
insulation at ARCO's Cherry Point Refinery. Barbara was the wife of Raymond
Brandes (Raymond), who was exposed to asbestos while employed at the ARCO
1We refer to Ms. Barbara Brandes by her first name to avoid confusion with Respondent Brand, LLC. No. 73748-1-1/2
Cherry Point Refinery from 1971 to 1975. Raymond brought asbestos home on
his clothes, which Barbara regularly laundered. She eventually developed
mesothelioma. On August 16, 2014, Barbara filed a lawsuit in King County
Superior Court against numerous defendants for personal injuries sustained due
to asbestos exposure. The case proceeded to trial with Brand as the sole
remaining defendant. The jury rendered a verdict in favor of Barbara and
awarded her $3,500,000 in damages, which was reduced to $2,500,000 on
remittitur. Brand appeals, and Barbara cross-appeals the remittitur. We affirm the
verdict and reverse the remittitur.
FACTS
Brand was an insulation subcontractor to general contractor Ralph M.
Parsons (Parsons) during the construction phase of the ARCO Cherry Point
Refinery. Brand sold to Parsons the insulation that it installed on pipes and other
installations. Brand began work in January 1971 and concluded in February
1972. At the beginning of the project, Brand used asbestos-free insulation. At
some point, Brand began installing asbestos-containing insulation because the
asbestos-free insulation performed poorly. The asbestos insulation was
purchased by Brand in containers bearing warnings. Brand did not pass along
those warnings to Parsons or to ARCO employees. Brand did not label the pipes
it fitted with asbestos insulation. Brand's installation work produced asbestos
dust and ARCO employees were nearby when the work was performed. Brand No. 73748-1-1/3
did not employ industrial hygiene practices to contain asbestos dust or to prevent
exposed employees from transporting asbestos away from the work site.
Raymond was an operator at Cherry Point. In November 1971, he began
work in the crude unit, which Brand insulated. An operator was responsible for
maintaining continuous operation of the processing unit, which required walking
through the unit six to eight times a day to monitor and ensure proper operation
of the equipment. An operator also prepared equipment for maintenance by
removing insulation to gain access to a pipe. Raymond removed insulation by
hammering it offor sawing through it. This sometimes produced dust. He
performed this activity at least twice each month.
Barbara washed her husband's uniform about twice each week. She
shook his uniform before placing it in the washing machine. She also swept up
the floor of the laundry area. Barbara was diagnosed with mesothelioma at the
age of79. It caused shortness of breath, fatigue, weight loss, nausea, and neuropathy. She underwent chemotherapy, but her disease was terminal. Prior to trial, Brand moved for summary judgment on numerous grounds.
Co-defendant Metalclad moved for summary judgment based on the contractor's
statute of repose. In its reply to Barbara's response, Brand adopted that defense and incorporated it by reference.2 Barbara also moved for summary judgment to strike Brand's affirmative defenses, including their statute of repose defense. The
trial court granted Brand's motion to dismiss Barbara's strict liability claims, but
2 Barbara did not object to Brand raising this issue on reply. 3 No. 73748-1-1/4
denied the remainder of Brand's motion. The trial court also denied Barbara's
motion to strike Brand's statute of repose defense. Brand moved for
reconsideration on the statute of repose issue, which the trial court denied.
Trial began on April 6, 2015. On the day before closing arguments,
Barbara passed away at the age of 80. Her counsel filed a Notice of Death and
Motion for Substitution, requesting that the trial proceed despite her passing. The
trial court granted the motion for substitution and authorized continuation of the
litigation as a survivorship action. The trial judge advised the jury of Barbara's
death and gave instructions on the new procedural posture of the case.
The jury rendered a verdict in favor of Barbara's estate and awarded
$3,500,000 in damages. Barbara's estate brought a motion to allocate fifty
percent of the settlement proceeds to a future wrongful death claim. Brand
opposed the motion and filed a motion for new trial, or in the alternative,
remittitur. The trial judge denied Brand's motion for a new trial but granted
remittitur, reducing the verdict by $1,000,000. The trial judge granted Barbara's
motion and set off twenty percent of the settlement proceeds to the statutory
heirs' future wrongful death claim.
DISCUSSION
Statute of Repose
We review a summary judgment order de novo, engaging in the same
inquiry as the superior court. Lvbberts v. Grant County, 141 Wn.2d 29, 34, 1 P.3d
1124 (2000). We view the facts and all reasonable inferences therefrom in the No. 73748-1-1/5
light most favorable to the nonmoving party, id. However, we will only review trial
court decisions as a matter of right as provided in RAP 2.2. Summary judgment
orders are not reviewable under RAP 2.2 after a trial on the merits. Johnson v.
Rothstein. 52 Wn. App 303, 759 P.2d 471 (1988).
Brand argues that the six year construction statute of repose bars
Barbara's claims because the refinery's insulation is an improvement on real
property and Barbara brings her claim well after the repose period ended.
Barbara argues that this issue is not properly before the court because it was
denied on summary judgment and the case proceeded to trial and judgment.
A statute of repose terminates a potential claim after a specified time,
even if an injury has not yet occurred. Wash. State Major League Baseball
Stadium Pub. Facilities Dist. v. Huber. Hunt & Nichols-Kiewit Constr. Co., 176
Wn.2d 502, 511, 296 P.3d 821 (2013). It bars an action for construction defects
that does not accrue within six years from the time construction is completed.
RCW 4.16.310. The statute of repose applies to "all claims or causes of action of
any kind against any person, arising from such person having constructed,
altered or repaired any improvement upon real property . . . ." RCW 4.16.300.
The statute of repose only "protects individuals who work on structural
aspects of the building." Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 111,
676 P.2d 466 (1984). "[T]he statute focuses on individuals whose activities relate
to construction of the improvement." Id at 110. The Condit court endorsed New
Jersey's interpretation of its statute of repose: No. 73748-1-1/6
the intent of the language of the statute was to protect those who contribute to the design, planning, supervision or construction of a structural improvement to real estate and those systems, ordinarily mechanical systems, such as heating, electrical, plumbing and air conditioning, which are integrally a normal part of that kind of improvement, and which are required for the structure to actually function as intended.
Id at 110-111 (citing Brown v. Jersey Central Power & Light Co.. 163 N.J. Super.
179, 195, 394 A.2d 397 (1978)). In Condit. a conveyer-belt freezer tunnel was not
"integral" to the factory in which it was installed. Condit affirmed the holding in
Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co.. 81 Wn.2d
528, 503 P.2d 108 (1972) that a refrigeration system used to cool a cold
warehouse is integral to the warehouse and falls within the scope of the statute
of repose. But in Morse v. City of Toppenish, 46 Wn. App. 60, 64, 729 P.2d 638
(1986), the court held that a diving board is not integral to a swimming pool.
The threshold question is whether this court should consider the summary
judgment ruling after the case proceeded to trial and judgment. "A denial of
summary judgment cannot be appealed following a trial if the denial was based
upon a determination that material facts are disputed and must be resolved by
the trier of fact." Johnson, 52 Wn. App at 303-304. "The primary purpose of a
summary judgment procedure is to avoid a useless trial." id. at 307 (citing
Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 602, 611 P.2d 737 (1980)).
Once a trial on the merits is held, review of summary judgment does nothing to
further this purpose. Id, However, an appellate court may review such a denial
where the disputed issues of fact were not material and the decision on summary No. 73748-1-1/7
judgment turned solely on a substantive issue of law. Kaplan v. Northwestern
Mut. Life Ins. Co.. 115 Wn. App. 791, 804, 65 P.3d 16 (2003) (citing Univ. Vill.
Ltd. Partners v. King County. 106 Wn. App. 321, 324-25, 23 P.3d 1090 (2001)).
In this case, the trial court considered summary judgment motions by both
parties on the statute of repose. The court found that there were disputed
material facts on whether the statute of repose applied, and denied both parties'
motions for summary judgment on that issue. We agree that the disputed
questions of fact are material. Given the requirement in Condit to determine
whether insulation was "integral" to the refinery, disputed material facts include
the purpose, necessity, and permanence of the insulation that Brand installed in
the refinery. Because material disputed facts must be resolved by the trier of fact,
the summary judgment order cannot be appealed because it was followed by a
trial. Johnson, 52 Wn. App 303.
Nevertheless, Brand asks this court to review the denial of summary
judgment and find that the statute of repose applies. But even if this issue turned
on a question of law and were reviewable under Kaplan, we would still decline to
review it. We will not consider an error that was not raised in the trial court. RAP
2.5(a); State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988). This rule
encourages the efficient use of judicial resources: parties must allow the trial
court to rule on all disputed issues and correct an error in order to avoid appeal.
Scott, 110 Wn.2d 682; State v. Ramirez, 62 Wn. App. 301, 305, 814 P.2d 227
(1991); See Adcox v. Children's Orthopedic Hosp. and Medical Center. 123 No. 73748-1-1/8
Wn.2d 15, 35 n.9, 864 P.2d 921 (1993). At trial, Brand did not elicit expert
testimony or offer exhibits to develop the material facts which formed the basis
for the trial court's denial of summary judgment. Nor did Brand renew the issue at
trial by moving for a directed verdict or offering jury instructions on the statute of
repose for this court to review. As a result, we conclude that Brand failed to
preserve the issue for review by this court and we decline to consider it on
appeal.
Duty of Care
Whether the defendant owes duty of care is a question of law reviewed de
novo. Munich v. Skagit Emergency Commc'n Ctr., 175 Wn.2d 871, 288 P.3d 328
(2012). Brand contends that there is no precedent that establishes a duty of care
in a take-home asbestos case where the defendant did not have control over the
actions of the individual exposed to asbestos. It argues that recognizing such a
duty would result in a slippery slope of liability.
A duty of care is an essential element of common law negligence. It is an
"obligation, recognized by the law, requiring the actor to conform to a certain
standard of conduct, for the protection of others against unreasonable risks."
Daly v. Lynch, 24 Wn. App. 69, 76, 600 P.2d 592 (1979) (quoting W. Prosser,
Law of Torts § 30, at 143 (4th ed.1971)). Whether an affirmative duty to act exists
depends upon many factors, including "mixed considerations of logic, common
sense, justice, policy, and precedent." Snyder v. Med. Serv. Corp., 145 Wn.2d
233, 243, 35 P.3d 1158 (2001) (internal quotation omitted). A person has a duty
8 No. 73748-1-1/9
to prevent unreasonable risk of harm to others from his or her own actions.
Minahan v. Western Wash. Fair Ass'n. 117Wn. App. 881, 897, 73 P.3d 1019
(2003) (quoting Restatement (Second) of Torts § 321 (1965)). An
unreasonable risk gives rise to a duty of care only if a reasonable person would
have foreseen the risk. Parrilla v. King County. 138 Wn. App. 427, 436, 157 P.3d
879 (2007) (citing Minahan, 117 Wn. App. at 897).
The asbestos insulation at Cherry Point posed a danger to workers and
their families. The insulation was habitually removed in the general maintenance
of the refinery. This created asbestos dust that could injure those who inhaled it.
When Brand installed asbestos insulation, it did not label the material as
asbestos-containing. Brand also created dangerous asbestos dust while
installing insulation but it did not take protective measures to prevent exposure to
nearby ARCO employees. Brand's failure to label asbestos insulation and
contain asbestos dust during construction created an unreasonable risk of harm.
Barbara presented evidence that exposure to families of asbestos workers
was foreseeable when Brand insulated Cherry Point. Medical, scientific, and
industry/trade literature in the decades leading up to Barbara's exposure had
conclusively established the risk of inhaled asbestos dust. Additional studies
linked asbestosis or mesothelioma in the spouses and children of asbestos
workers to asbestos dust brought home by the worker. Given the availability of
information about the risk of harm to the families of asbestos workers, Brand
could have foreseen injuries to the spouses of ARCO employees such as No. 73748-1-1/10
Barbara stemming from the unreasonable risk of harm it created in its installation
of asbestos insulation at Cherry Point.
Brand contends that Barbara has not identified a legal duty because
Washington law has recognized a duty for "take-home" exposure only in the
context of strict liability and premises liability where the premises owner was also
the general contractor. Lunsford, 125 Wn. App. 784 (strict liability); Arnold v.
Saberhagen Holdings. Inc.. 157 Wn. App. 649, 240 P.3d 162 (2010) (general
contractor premises liability). This argument sidesteps the basic negligence
principles that establish a duty of care in this case. 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.
Brand also argues that its activities should be characterized as inaction or
nonfeasance, which does not give rise to a duty of care. This argument fails
because Brand acted affirmatively when it installed insulation. And it engaged in
this activity in a way that created an unreasonable risk of harm was foreseeable
as to Barbara. Under these circumstances, we conclude that Brand owed a duty
of care to Barbara.
Finally, Brand argues no duty of care exists because there is no special
relationship between the parties. A special relationship is required ifthe plaintiff's
injury is caused by the criminal conduct of a third party or a defendant's
nonfeasance. See Tae Kim v. Budget Rent A Car Svs., Inc, 143 Wn.2d 190,
195,15 P.3d 1283 (2001); 16 David K. DeWolf & Keller W. Allen, Washington
10 No. 73748-1-1/11
Practice: Tort Lawand Practice § 2.8 at 52 (4th ed. 2013). Barbara's injuries
were not caused by criminal conduct, nor by Brand's nonfeasance. No special
relationship is required to establish duty of care in this case.
Brand did not label the location of asbestos insulation, knowing that it
would be habitually removed and create dust. Brand did not employ industrial
hygiene practices to control asbestos dust during installation. The risks of
asbestos dust to workers and others residing in their household was foreseeable
at the time of these activities. Under these circumstances, we hold that a duty of
care exists because Brand created a foreseeable risk of harm to Barbara.
Causation
Appellate courts review a motion for directed verdict de novo. Ramey v.
Knorr, 130 Wn. App 672, 675-76, 124 P.3d 314 (2005). A directed verdict is
granted if "there is no legally sufficient evidentiary basis for a reasonable jury to
find or have found for that party with respect to that issue." CR 50(a)(1).
Brand argues that there is not a sufficient basis to find causation because
Barbara did not demonstrate how much asbestos she was exposed to. In
response, Barbara points to an expert witness who testified that Barbara's
mesothelioma was caused by Brand and argues that this is sufficient for a
reasonable jury to find causation.
To prove causation in an asbestos-related case, the plaintiff must present
evidence that the defendant's conduct was a substantial factor in bringing about
the plaintiff's harm. Morgan v. Aurora Pump Co., 159 Wn. App. 724, 740, 248
11 No. 73748-1-1/12
P.3d 1052 (2011). Courts consider several factors when evaluating whether there
is sufficient evidence of causation against a particular defendant: (1) plaintiffs
proximity to the asbestos product when the exposure occurred and the expanse
of the work site where asbestos fibers were released; (2) the extent of time the
plaintiff was exposed to the product; (3) the types of asbestos products to which
plaintiff was exposed and the ways in which the products were handled and
used, and (4) the evidence presented as to medical causation of the plaintiffs'
particular disease. Morgan, 159 Wn. App. at 740 (citing Lockwood v. AC &S, Inc.,
109 Wn.2d 235, 248-49, 744 P.2d 605 (1987)). "Ultimately, the sufficiency of the
evidence of causation will depend on the unique circumstances of each case,"
but "[nevertheless, the factors listed above are matters which trial courts should
consider when deciding if the evidence is sufficient to take such cases to the
jury." Lockwood. 109 Wn.2d at 249.
Barbara's expert witness, Dr. Andrew Churg, testified about the cause of
mesothelioma. He testified that Brand's activities as an insulation contractor
contributed to Barbara's mesothelioma. Dr. Churg also testified that the asbestos
exposure threshold for mesothelioma is even lower than .1 asbestos fiber per
cubic centimeter (.1 f/cc) per working year. Brand cross-examined Dr. Churg on
the latter point, noting his prior testimony in another case that mesothelioma
requires asbestos exposure to at least a .1 f/cc per working year. VRP 567-568.
Brand argues that there is no evidence that Barbara was exposed in excess of .1
f/cc per working year, so there is a legally insufficient basis to find causation. But
12 No. 73748-1-1/13
Barbara presented expert medical testimony that her mesothelioma was caused
by Brand's activities. Based on this testimony, a reasonable jury could, and in
this case did, find causation. The jury was made aware of Dr. Churg's
purportedly contradictory testimony and it was free to credit or discredit his
opinion. We do not reweigh the evidence or question the jury's credibility
determinations on appeal. Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125
(2003). Because Barbara presented sufficient evidence of causation, we
conclude that the trial court did not err when it denied Brand's motion for a
directed verdict.
Duty to Warn
We review alleged errors of law in jury instructions de novo. Blanev v. Int'l
Ass'n of Machinist & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87
P.3d 757 (2004). Jury instructions are proper when they allow parties to argue
their theories of the case, do not mislead the jury, and properly inform the jury of
the applicable law. id
Brand argues that the trial court erred by instructing the jury to consider
whether Brand was negligent with respect to its sales of insulation at the refinery.
It contends that if Brand is not a "seller" for the purposes of Barbara's dismissed
strict liability claim under Restatement (Second) of Torts § 402A, it cannot be a
"supplier" for the purposes of a negligent sales claim under Restatement
(Second) of Torts § 388.
13 No. 73748-1-1/14
Under the law of negligence, a defendant's duty is to exercise ordinary
care. A manufacturer's duty of ordinary care includes a duty to warn of hazards
involved in the use of a product, which are or should be known to the
manufacturer. Simonetta v. Viad Corp.. 165 Wn.2d 341, 348, 197 P.3d 127, 131
(2008) citing Restatement (Second) of Torts § 388 (1965). Restatement (Second)
of Torts § 388 applies to "sellers, lessors, donors, or lenders, irrespective of
whether the chattel is made by them or a third person." Restatement (Second) of
Torts § 388, cmt.c (1965). The rule encompasses "any person who ... gives
possession of a chattel for another's use ... without disclosing his knowledge that
the chattel is dangerous for the use for which it is supplied." id Simonetta
clarifies that "the duty to warn is limited to those in the chain of distribution of the
hazardous product." Simonetta, 165 Wn.2d at 354.
Brand selected, ordered, supplied, and sold the insulation that it installed
in the refinery.3 Brand invoiced general contractor Parsons for the cost of
materials. Brand had some discretion to select its materials. It did not simply
procure the material that Parsons or ARCO specified. While Parsons and/or
ARCO were sophisticated buyers, they did not select the exact material for Brand
3 Brand selected its insulation from several options. Brand's subcontract specified that the insulation be either from PABCO or Johns-Manville. The contract specification stated that the insulation could be Unibestos, Kaylo, Thermobestos, or Super Caltemp. Valve bodies had to be insulated with PABCO #127 insulated cement. Brand selected PABCO to supply the majority of the insulation for the project. Johns-Manville and Owens Corning product was also used. Brand selected PABCO material because it was the cheapest to ship. Brand purchased and took possession of the insulation at Cherry Point, and invoiced Parsons for the insulation on a monthly basis.
14 No. 73748-1-1/15
to purchase. It follows that Brand has a duty to warn about the danger of the
product it selected and sold.
Brand argues that if it is not a seller under Restatement (Second) of
Torts § 402A (1965), then it cannot be a seller for the purposes of Restatement
(Second) of Torts § 388. This argument fails. These two sections of the
restatement have different language, interpretive caselaw, and policy rationales.
In addition, the trial court's dismissal of Barbara's § 402A strict liability claim does
not bind this court to an outcome on § 388 that is inconsistent with the law. We
conclude that Brand is a supplier within the chain of distribution of asbestos
insulation. Accordingly, the trial court did not err when it instructed the jury on
negligent sales.
Contractor's Defense
Brand contends the trial court erred when it refused to give a "contractor's
defense" instruction.4 Jury instructions are proper when they permit the parties to
argue their theories of the case, do not mislead the jury, and properly inform the
jury of the applicable law. Blanev, 151 Wn.2d 203. The instruction is erroneous if
any of these elements are missing, but an erroneous instruction is reversible
error only if it prejudices a party. Anfinson v. FedEx Ground Package System,
4 Brand also argues that the trial court erred by denying summary judgment on contractor's defense grounds. "'A summary judgment denial cannot be appealed following a trial if the denial was based upon a determination that the material facts are disputed and must be resolved by the factfinder.'" Kaplan. 115 Wn. App. at 799 (quoting Brothers v. Pub. Sch. Employees of Washington, 88 Wn. App. 398, 409, 945 P.2d 208 (1997)). The trial court denied Brand's summary judgment motion on its affirmative contractor's defense due to questions of fact on the negligence claim. We do not review a motion for summary judgment after a trial. 15 No. 73748-1-1/16
Inc., 174 Wn.2d 851, 281 P.3d 289 (2012). We review alleged errors in
instructing the jury de novo. Blanev. 151 Wn.2d at 210.
Brand's proposed instruction advised the jury that a contractor who
performs work in accordance with specifications provided by the owner is not
liable if specified construction materials are later proven to be defective. The trial
court gave a general negligence jury instruction instead. Employing this general
negligence instruction, Brand argued in closing that it was not negligent because
its contract specifications called for asbestos insulation. Brand was permitted to
argue its theory of the case, the instructions did not mislead the jury, and the jury
was properly informed of the applicable law. The trial court did not err by refusing
to instruct the jury on a contractor's defense.
Allocation to Wrongful Death Cause of Action
A trial court's ruling on the reasonableness of a settlement is a factual
determination. This court reviews the trial court's approval of settlement
agreements for substantial evidence. Brewery. Fibreboard Corp., 127 Wn.2d
512, 523, 901 P.2d 297 (1995) (citing Glover v. Tacoma General Hosp., 98
Wn.2d 708, 711, 658 P.2d 1230 (1983) (overruled on other grounds).
Brand argues that the trial court erred when it allocated twenty percent of
settlement proceeds to a future wrongful death claim. Prior to trial, Barbara
settled her personal injury claims against multiple defendants. The parties agree
that Barbara explicitly or impliedly released future wrongful death claims in
exchange for settlement monies. After trial, the plaintiff requested that half of the
16 No. 73748-1-1/17
settlement proceeds be allocated to the wrongful death claim released by
Barbara, and the other halfallocated to the personal injury claim released by
Barbara. Under principles of joint and several liability, Brand was not entitled to
set-off the value of claims that were not pursued against it at trial, such as
wrongful death. Thus, Brand opposed this allocation, which reduced the amount
of settlement proceeds that would set off the $3,500,000 judgment against it.
Brand requested that the court allocate none of the settlement to a wrongful
death action. This would allocate all of the settlement proceeds to the released
personal injury claims and reduce the personal injury judgment against Brand.
The trial court ordered that twenty percent of the settlement proceeds be
allocated to future wrongful death claims:
The jury awarded noneconomic damages in the amount of $3,500,000.00. On Brand's motion, the Court granted remittitur, reducing the judgment to $2,500,000.00. The total settlement proceeds prior to judgment were $1,965,710.76. Under RCW 4.22.060(2), Brand is entitled to a set-off of 80% of that amount.
[Brand] is liable for Plaintiff's damages in the amount of $927,431.39.
Clerk's Papers (CP) at 5426-27.
On appeal, Brand argues that any allocation of settlement proceeds to a
wrongful death action was improper because the settlement of Barbara's
personal injury claim extinguished a wrongful death claim. "When the death of a
person is caused by the wrongful act, neglect, or default of another his or her
personal representative may maintain an action for damages against the person
causing the death. . . ." RCW 4.20.010. The wrongful death action is for the
17 No. 73748-1-1/18
benefit of statutory heirs. RCW 4.20.020. But a decedent, in her lifetime, may
pursue a course of action that extinguishes an heir's cause of action for wrongful
death. Deggs v. Asbestos Corp. Ltd.. 186 Wn.2d 716, 725, 381 P.3d 32 (2016).
"[A] release and satisfaction by the person injured of his right of action for the
injury bars the right in the beneficiaries to maintain an action for his death
occasioned by the injury." Brodie v. Washington Water Power Co., 92 Wash.
574, 576-77, 159 P.791 (1916). Brand asks that we reverse the trial court's
allocation of settlement proceeds because Barbara's settlement bars the
wrongful death action under Brodie and Deggs.
But on the facts before us, Brodie and Deggs do not control. The issue
here is not whether Barbara's personal representative can maintain a wrongful
death suit, but whether a settlement would have occurred at all but for settlement
of the potential wrongful death claim. Stated differently, because the release of
Barbara's wrongful death claim was a necessary concession to reach a
negotiated settlement, it is clearly valuable consideration which is reflected to
some degree in the settlement amount. We conclude that the trial court did not
err when it allocated a portion of the settlement to the potential wrongful death
claim. The only issue is to what degree. But because Brand does not challenge
the trial court's finding that the release was worth twenty percent of the
settlement proceeds, that issue is not before us.
18 No. 73748-1-1/19
Work Simulation Video
We review the trial court's decision to admit or exclude evidence for
manifest abuse of discretion. Degrootv. Berkley Const.. Inc.. 83 Wn. App. 125,
128, 920 P.2d 619 (1996).
Brand argues that the trial court erred when it refused to exclude from
evidence a work simulation video that showed a worker sawing asbestos-
containing insulation and shaking out asbestos-containing clothes. Brand argues
that the evidence was irrelevant and prejudicial because it did not replicate the
conditions experienced by Barbara and Raymond.
Demonstrative evidence is permitted "if the experiment was conducted
under substantially similar conditions as the event at issue." State v. Finch. 137
Wn.2d 792, 816, 975 P.2d 967 (1999) (citing Jenkins v. Snohomish County Pub.
Util. Dist. No. 1. 105 Wn.2d 99, 107, 713 P.2d 79 (1986)). Determining whether
the similarity is sufficient is within the discretion of the trial court, id If the
evidence is admitted, any lack of similarity goes to the weight of the evidence, id
We review the trial court's evidentiary ruling for abuse of discretion and will only
disturb the ruling if it is manifestly unreasonable or based on untenable grounds.
In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402, 219 P.3d 666 (2009). A
ruling is manifestly unreasonable if it "'adopts a view that no reasonable person
would take.'" \± (quoting Maverv. Sto Indus.. Inc., 156 Wn.2d 677, 132 P.3d 115
(2006)).
19 No. 73748-1-1/20
Brand argues there are substantial differences between the work
simulation video and the actual conditions under which Barbara and Raymond
were exposed to asbestos. It points out that the video was illuminated to enhance
the visibility of the asbestos particles and that Raymond's work took place
outside in windy conditions. Whereas the video was filmed inside with no air
currents and a different brand of insulation was used in the video. Brand also
argues the video was prejudicial because the individuals in the video wore
protective clothing and facemasks. The trial court determined that in spite of
these differences, the conditions shown in the video were substantially similar to
the conditions experienced by Raymond and Barbara because it showed
individuals sawing insulation and shaking out clothing that had been exposed to
the dust created by that activity. We cannot say that no reasonable person would
adopt this view. In addition, in light of the similar conditions, the relevance of the
video outweighs any prejudicial effect of seeing workers handle asbestos in
protective gear. We conclude that the trial court did not abuse its discretion by
denying Brand's motion in limine and admitting the video. There was no error.
Remittitur
Barbara cross appeals the trial court's reduction of her damages award
from $3,500,000 to $2,500,000. A decision to decrease a jury's award is
reviewed de novo. RCW 4.76.030; Robinson v. Safeway Stores. Inc., 113 Wn.2d
154, 161-62, 776 P.2d 676 (1989). But we give great deference to the jury's
determination of damages. Sofie v. Fibreboard Corp., 112 Wn.2d 636, 667, 771
20 No. 73748-1-1/21
P.2d 711 (1989). "'An appellate court will not disturb an award of damages made
by a jury unless it is outside the range of substantial evidence in the record, or
shocks the conscience of the court, or appears to have been arrived at as the
result of passion or prejudice.'" Bunch v. King Ctv. Dep't of Youth Servs.. 155
Wn.2d 165, 179, 116 P.3d 381 (2005) (guoting Bingaman v. Grays Harbor Cmtv
Hosp., 103 Wn.2d 831, 835, 699 P.2d 1230 (1985). The "shocks the conscience"
test asks if the award is "flagrantly outrageous and extravagant." Bingaman, 103
Wn.2d at 836-37. Passion and prejudice must be "unmistakable" before they
affect the jury's award. RCW 4.76.030; Bingaman, 103 Wn.2d at 836.
The trial court remitted Barbara's damages on several bases. First, "[t]he
jury was visibly and audibly shaken when told of the plaintiffs death." CP at
5429. Second, the jury instructions did not emphasize that damages included
only pre-death pain and suffering, id Third, plaintiff's closing argument contained
an inappropriate appeal for punitive and exemplary damages, id
Barbara argues that Brand waived any assignment of error to the amount
of the award because it failed to object to the continuation of the trial after
Barbara's death and to alleged improper arguments at closing. She argues that
even if the assignment of error was not waived, her award should not have been
reduced because it was not unmistakably the result of passion or prejudice.
Brand argues that their failure to object is immaterial. It contend that the grant of
remittitur should be upheld because the jury verdict was influenced by passion
and unsupported by evidence.
21 No. 73748-1-1/22
We agree with Barbara. Brand did not object to notifying the jury of the
plaintiff's death or to continuing the trial as a survivorship action. When the jury
was so instructed and appeared shaken, Brand did not respond by requesting
clarifying instructions on the impact of Barbara's death on the case. Brand also
did not object to inappropriate closing remarks, and contends that this decision
was tactical. While these failures to object do not preclude our review, they do
indicate that Barbara's death was not so shocking that Brand felt compelled to
object, ask for a new trial, or request clarifying jury instructions. Given that we
overturn a jury's verdict only in the face of unmistakable passion and prejudice,
Brand's inaction shows that any passion or prejudice that may have motivated
the jury was not overpowering or unmistakable.
In ordering remittitur, the trial court also reasoned that the jury may not
have followed instructions to consider only pre-death damages. A jury is
presumed to follow jury instructions and that presumption will prevail until it is
overcome by a showing otherwise. Tennant v. Roys, 44 Wn. App. 305, 315-16,
722 P.2d 848 (1986) (citing In re Municipality of Metro. Seattle v. Kenmore
Properties, Inc., 67 Wn.2d 923, 930-31, 410 P.2d 790 (1966)). Even ifthe trial
court could have given more elaborate instructions after Barbara's death, there is
no showing that the jury did not follow the instructions that were given. Finally, Barbara offered substantial evidence of her pain and suffering,
and that her condition was terminal. The jury knew that Barbara would die of her
disease, and so, the fact of her death does not necessarily undermine their
22 No. 73748-1-1/23
verdict. We conclude that the jury's damages award was not unmistakably the
result of passion or prejudice, and that it was supported by substantial evidence.
Accordingly, we reverse the trial court's grant of remittitur and we remand to the
trial court to reinstate the jury's verdict and damages award.
Affirmed in part and reversed in part.
WE CONCUR