Brewer v. Fibreboard Corp.

127 Wash. 2d 512

Opinions

Smith, J.

On September 23, 1994, under RCW 2.06.030, the Court of Appeals, Division Two, certified to this court for review a decision of the Kitsap County Superior Court which under RCW 4.22.060 reduced a jury award in a personal injury case against multiple defendants by setoffs in the amount of prior settlements. We remand to the trial court for correction of the setoff amount.

Questions Presented

The first question presented is whether under RCW 4.22.060, in determining final judgment upon a jury award in a personal injury case involving multiple defendants, a setoff attributable to a settlement agreement should be based upon $21,000.00, the amount actually received, or upon $78,750.00, the amount reasonably expected, or upon $175,000.00, the full amount stated in the settlement agreement. The second question is whether under RCW 4.22.060 Appellant Brewer is required to obtain approval from the superior court before entering into a settlement agreement with a federal court-appointed settlement trust which is not a party to this lawsuit.

Statement of Facts

From 1945 to 1953, Pierce E. Brewer served as a machinist mate with the United States Navy.¹ He reenlisted in 1954 and continued service with the Navy until 1966.² In 1966, he was employed by Lockheed Shipbuilding as a marine machinist for three months,³ involved with new construction of ships and installation of insulation containing asbestos on pipes in the engine rooms.⁴ He worked at the Puget Sound Naval Shipyard (PSNS) as a marine machinist from 1967 until December 23, 1988,⁵ repairing, removing and installing machinery in the engine rooms, fire rooms and auxiliaries on carriers, destroyers, ships, and nuclear submarines.⁶ This work involved installation and removal of insulation containing asbestos on pipes in enclosed areas.⁷ He retired from the Naval Shipyard in 1988 and worked part time at Olympic College in Bremerton until April 1991.⁸

In 1978, Mr. Brewer was diagnosed as suffering from pleural thickening of the lining of the lungs, an asbestos-related condition.⁹ In July 1991, his physical condition rapidly declined and he was diagnosed as suffering from mesothelioma.¹⁰ He was given six months to two years to live.¹¹

On March 15, 1991, Pierce E. Brewer filed a complaint in the Kitsap County Superior Court against Owens-Corning Fiberglas Corporation, Fibreboard Corporation, Pittsburgh Corning, Owens-Illinois, Incorporated, and E.J. Bartells.¹² On August 9, 1991, he filed a supplemental complaint for personal injury.¹³ The supplemental complaint stated in part that "[d]uring the period 1945 to the early 1970’s, [Pierce E. Brewer] was exposed to asbestos and asbestos-containing products manufactured and/or sold by defendants”¹⁴ and "[a]s a result of this exposure, . . . Pierce E. Brewer . . . developed [an] asbestos-related disease, including mesothelioma.”¹⁵

On November 7, 1991, Pierce E. Brewer entered into a settlement agreement with the Manville Personal Injury-Settlement Trust¹⁶ (Trust).¹⁷ The settlement agreement provided in part:¹⁸

1. I accept payment of the Settlement Amount [$175,000.00] as full settlement of my Trust claims. I intend my Release to be effective not only on behalf of myself but also my spouse, heirs, representatives, successors or assigns. I further agree that this Release extends to all my associated rights and claims of any kind against the Released Parties!¹⁹] whether based in tort, scontract, [sic] fraud or any other legal or equitable theory, and whether I possess them now or may possess them in the future, including but not limited to all claims for my asbestos-related personal injury or wrongful death.

2. I accept payment of my Settlement Amount as follows:

Twelve percent (12%) of the Settlement Amount shall be paid within 20 business days after the Trust’s receipt and approval of the Claimant’s Proof of Claim and Release. The remaining eighty-eight percent (88%) shall be paid as provided in the Class Action Payment Plan.

3. As previously agreed to at the time I accepted the Trust’s offer and pursuant to which this Release is executed, I understand the payments and payment terms described herein are and shall remain subject to the availability of adequate Trust funding.

Under this settlement agreement, Mr. Brewer received $21,000.00, representing twelve percent (12%) of the total settlement amount of $175,000.00, in cash. The remaining $154,000.00 was to be paid under the terms of the Class Action Payment Plan. A federal court order prevented him from suing the Manville Corporation. However, the Manville Trust was permitted to negotiate settlements with persons with "exigent” health conditions caused by exposure to asbestos.²⁰

On September 24, 1992, Patricia G. Houser, executive director of the Manville Personal Injury Settlement Trust, stated it was unlikely Mr. Brewer would ever receive the remaining $154,000.00 because of the financial condition of the Trust. She stated in her affidavit:

3. On or about September 1, 1992, I spoke with ... attorneys to explain our policies and procedures and to discuss the assets of the Trust and the problems the Trust has experienced because of the imbalance between assets and liabilities. The Trust’s liabilities far exceed its assets.

4. The Trust’s net assets equal approximately One Billion, Six Hundred & Ninety-one Million, Seven Hundred & Twenty-Four Thousand ($1,691,724,000.00), as of August 11, 1992, but most of these assets are not presently convertible into cash.

5. The Manville Trust has approximately 159,000 unsettled claims as of August 31, 1992, and continues to receive approximately 1,500 new claims per' month.

6. It is my best judgment, based on correct information, that the Trust will only be able to pay a total of between 20% to 35% of any claimant’s total settlement negotiated during the stay under the Trust’s Exigent Health Settlement Plan. Because the bond payments from Johns-Manville extend to the year 2015, the Trust, in all likelihood, will be making payments on claims until that time.

7. Claims that have been negotiated and received a 12% first distribution payment under the Trust’s Exigent Health Plan are unlikely to receive additional money next year. It is very unlikely that the Trust will be able to pay more than 12% to non-exigent or exigent cases next year. The second payment distribution will probably be less than 5% .[²¹]

(Italics ours.)

After the death of Pierce E. Brewer, his widow, Ms. Lajearme Brewer, was appointed personal representative of his estate.²² She pursued this action on behalf of the estate and herself. The case proceeded to a jury trial before the Honorable Terence Hanley on May 4, 1992.²³ On July 7, 1992, the jury returned a verdict in favor of Appellant Brewer for $372,300.00 in general and special damages.²⁴ The jury found no liability against Owens-Illinois Company, but held Fibreboard Corporation, Owens-Corning Fiberglas Corporation, and Pittsburgh Corning Corporation liable for the full amount.²⁵

On September 4, 1992, Appellant Brewer gave notice of intent to enter into settlement agreements with Anchor Packing Company; Asbestos Corporation, Ltd.; Babcock & Wilcox; the Center for Claims Resolution, Armstrong Cork Company, GAF, and Turner & Newall; Combustion Engineering; Foster-Wheeler Energy Corporation; Gar-lock; Keene Corporation; and Parker-Hannifin Corporation; and moved for determination by the court of the reasonableness of the settlement agreements.²⁶ On February 23, 1993, the Kitsap County Superior Court, the Honorable Terence Hanley, determined that the November 7, 1991 settlement agreement between Mr. Brewer and the Trust for $175,000.00 was reasonable.²⁷

On May 7, 1993, Judge Hanley entered judgment against Owens-Corning Fiberglas Corporation, Fibreboard Corporation and Pittsburgh-Corning Corporation for $136,643.56.²⁸ He determined the setoff amount by subtracting the actual value of the settlement agreement between Pierce E. Brewer and the Trust, $175,000.00, and other settlements totaling $43,100.00; and reduced special damages by $17,800.00 from the $372,300.00 jury award. Then, after adding $243.56 for attorney fees and costs, the judgment totaled $136,643.56.²⁹

On June 2, 1993, Appellant Brewer filed a motion for review by the Court of Appeals, Division Two, of the trial court’s judgment entered on May 7, 1993.³⁰ The Court of Appeals certified the matter to this court on September 23, 1994. We accepted certification on September 27, 1994 under RCW 2.06.030.

Discussion

In 1981, the Legislature created the Tort Reform Act, codified in RCW 7.72 and RCW 4.22. As relevant to this case, RCW 7.72 is principally concerned with product liability and RCW 4.22 with right of contribution. The purpose of the Tort Reform Act is stated in the preamble to RCW 7.72:³¹

Tort reform in this state has for the most part been accomplished in the courts on a case-by-case basis. While this process has resulted in significant progress and the harshness of many common law doctrines has to some extent been ameliorated by decisional law, the legislature has from time to time felt it necessary to intervene to bring about needed reforms such as those contained in the 1973 comparative negligence act.

The purpose of this amendatory act is to enact further reforms in the tort law to create a fairer and more equitable distribution of liability among parties at fault.

Of particular concern is the area of tort law known as product liability law. Sharply rising premiums for product liability insurance have increased the cost of consumer and industrial goods. These increases in premiums have resulted in disincentives to industrial innovation and the development of new products. High product liability premiums may encourage product sellers and manufacturers to go without liability insurance or pass the high cost of insurance on to the consuming public in general.

It is the intent of the legislature to treat the consuming public, the product seller, the product manufacturer, and the product liability insurer in a balanced fashion in order to deal with these problems.

It is the intent of the legislature that the right of the consumer to recover for injuries sustained as a result of an unsafe product not be unduly impaired. It is further the intent of the legislature that retail businesses located primarily in the state of Washington be protected from the substantially increasing product liability insurance costs and unwarranted exposure to product liability litigation.

This case involves that part of the Tort Reform Act relating to right of contribution, codified in RCW 4.22. Specifically, RCW 4.22.060 provides:

(1) A party prior to entering into a release, covenant not to sue, covenant not to enforce judgment, or similar agreement with a claimant shall give five days’ written notice of such intent to all other parties and the court. The court may for good cause authorize a shorter notice period. The notice shall contain a copy of the proposed agreement. A hearing shall be held on the issue of the reasonableness of the amount to be paid with all parties afforded an opportunity to present evidence. A determination by the court that the amount to be paid is reasonable must be secured. If an agreement was entered into prior to the filing of the action, a hearing on the issue of the reasonableness of the amount paid at the time it was entered into may be held at any time prior to final judgment upon motion of a party.

The burden of proof regarding the reasonableness of the settlement offer shall be on the party requesting the settlement.

(2) A release, covenant not to sue, covenant not to enforce judgment, or similar agreement entered into by a claimant and a person liable discharges that person from all liability for contribution, but it does not discharge any other persons liable upon the same claim unless it so provides. However, the claim of the releasing person against other persons is reduced by the amount paid pursuant to the agreement unless the amount paid was unreasonable at the time of the agreement in which case the claim shall be reduced by an amount determined by the court to be reasonable.

(3) A determination that the amount paid for a release, covenant not to sue, covenant not to enforce judgment, or similar agreement was unreasonable shall not affect the validity of the agreement between the released and releasing persons nor shall any adjustment be made in the amount paid between the parties to the agreement.

Reasonableness Hearing

RCW 4.22.060 "creates a right of contribution between joint tortfeasors.”³² It further requires "that the court enter either a finding that the settlement amount is reasonable or that another, presumably higher, amount is reasonable.”³³ "It is incumbent upon a party having a significant interest in seeing that the settlement is found to be unreasonable to present some evidence to controvert the settling parties’ evidence.”³⁴ RCW 4.22.060 "sets out procedures for enforcing the right of contribution and provides for court approval of settlements.”³⁵ However, the statute does not specify what factors a trial court should consider in a hearing on the reasonableness of a settlement agreement.³⁶

In Glover v. Tacoma Gen. Hosp.,37 this court observed:

The reasonableness determination ... is of great importance to both settling and nonsettling defendants. Unfortunately, despite the importance of the term, the Legislature declined to define it, apparently deferring to the courts. The Senate Select Committee on Tort and Product Liability Reform Final Report... contains the following discussion on this issue:

The bill does not establish any standards for determining whether the amount paid for the release was reasonable or not. It is felt that the courts can rule on this issue without specific guidance from the Legislature. The reasonableness of the release will depend on various factors including the provable liability of the released parties and the liability limits of the released party’s insurance.

Senate Report, at 54. Presumably, therefore, this court has a relatively free hand in determining what factors should be considered at the reasonableness hearing.

In Glover we announced factors to be considered in a reasonableness hearing, including:³⁸

[T]he releasing person’s damages; the merits of the releasing person’s liability theory; the merits of the released person’s defense theory; the released person’s relative faults; the risks and expenses of continued litigation; the released person’s ability to pay; any evidence of bad faith, collusion, or fraud; the extent of the releasing person’s investigation and preparation of the case; and the interests of the parties not being released.

This court has recognized that "each of these factors are proper considerations for a trial judge to use in approving settlements . . and "emphasize[d] . . . that no one factor should control. The trial judge faced with this task must have discretion to weigh each case individually.”³⁹ A trial court’s finding of reasonableness is a factual determination that will not be disturbed on appeal when supported by substantial evidence.⁴⁰

RCW 4.22.060(1) requires a claimant to provide "five days’ written notice of such intent to all other parties and the court.”⁴¹ This court has stated:

The requirement for 5 days’ notice to all parties of the reasonableness hearing is obviously for the purpose of giving all parties the opportunity to appear and be heard at that hearing and to do their best to insure that the settlement is in fact a reasonable one — a matter of obvious importance to all nonsettling parties because the claim of a settling plaintiff against a nonsettling party is ordinarily reduced by the amount of the settlement. The 5-day written notice to parties requirement of the statute, RCW 4.22.060(1), is much the same as the requirement for a 5-day notice of presentation for findings of fact (CR 52(c)) and the 5-day notice of presentation for judgments (CR 54(f)(2)). Under these latter two rules, 5 days’ notice is required unless a party in some manner waives such notice or the trial court for cause shown shortens the time — providing that, in either event, no prejudice ensues. By analogy, we hold that these same principles should be applicable to the situation before us.

(Footnotes omitted. Italics ours.)⁴²

In Glover, the plaintiff petitioned for approval of her settlement agreement with five of the six named defendants. "Tacoma General, [the sixth named defendant], . . . did not participate in . . . [settlement] negotiations, and the release instrument specifically excluded Tacoma General.”⁴³ The trial court found the settlement reasonable.⁴⁴ Tacoma General challenged the trial court’s finding and urged this court to determine the proposed settlement was unreasonable. This court concluded the findings of the trial court were supported by substantial evidence.

"The effect of a reasonableness finding ... is to determine the amount of offset to which [a tortfeasor or joint tortfeasor] will be entitled against that judgment.”⁴⁵ This court in Glover concluded that "this result [wa]s most consistent with the Legislature’s intent in passing the tort reform act”⁴⁶ and that "[a] review of the common law prior to the Act and an analysis of the Act itself demonstrate[d] this point.”⁴⁷

In Fraser v. Beutel,⁴⁸ the Court of Appeals, Division Three, similarly addressed an issue where neither the plaintiff nor the settling defendant complied with the notice provisions of RCW 4.22.060(1). The Court of Appeals stated that the settling defendant, Sunset, knew or should have known the importance of notice of the reasonableness hearing especially to "one of the entities released in [the] settlement . . .”⁴⁹ when liability for contribution is a concern.

Appellant Brewer contends she was under no duty to provide notice to all parties and the court because the Trust was neither a "party” nor a "claimant.” Respondent Fibreboard concedes the Trust was not a "party” to the litigation,⁵⁰ but argues that even if the Trust is considered to be neither a "party” nor a "claimant” to the litigation, Appellant was in the best position to comply with the notice requirement of RCW 4.22.060(1).

Pierce E. Brewer entered into the settlement agreement with the Trust on November 7, 1991. The parties to this action were given notice of his intent to enter into settlement agreements with other defendants on September 4, 1992,⁵¹ but not notice of the settlement agreement with the Trust. Respondents, though, moved for a reasonable hearing on the Trust settlement on August 21, 1992 prior to entry of final judgment.⁵² On February 23, 1993, the trial court determined the settlement agreement between Mr. Brewer and the Trust was reasonable.⁵³ The court entered final judgment on May 7, 1993, and issued a memorandum decision on the reasonableness of the settlement agreement,⁵⁴ stating:

The problem in this case, it seems to the Court arises out of the nature of litigation. It is expensive, complicated and time consuming. Substantial amounts of time are required to be expended by counsel on both sides, expert witnesses must be retained and paid, etc. Had the reasonableness hearing been held at the time of the proposed settlement, various defendants’ decisions whether or not to proceed to trial may well have been affected by those factors as well as others appearing at that time.

Plaintiffs argue that the statute is phrased in terms of money "paid” and not money contracted for. Looking at the purpose of the statute, however, the purpose to be accomplished . . . and the reason for a reasonableness hearing, the Court concludes that the statute must be read to contemplate settlements based upon future consideration are required to comply with the statute as well as those based upon money contemporaneously paid. The drafters of the legislation didn’t contemplate, and there seems to be little purpose for, a reasonableness hearing when the litigation has been fully settled.

The basic theory of all tort law is to make plaintiffs whole. Settlement is to be encouraged by the Courts and is the purpose of the legislation here in question. Plaintiffs argue that $48,000.00 is the maximum present value of their settlement and the set off should be limited to that amount. They offer to assign all of the settlement above that figure to defendants. The trouble with all of this is, it seems to the Court, that it would shift the burden of reasonableness which is ascribed to plaintiffs by the statute to defendants after the fact of settlement and in the absence of timely hearing or input. Plaintiff’s [sic] were aware of Johns-Manville’s financial situation at the time they entered into the settlement. They took the risk without the Court’s approval as contemplated by the statute and it would be unjust to now shift the burden of their settlement decision to defendants. Hence, the Court concludes that the settlement was reasonable at the time it was reached.

(Italics ours.)⁵⁵

The parties in this case agree that the settlement agreement between Pierce E. Brewer and the Trust was reasonable. However, Respondents claim they were denied due process because Mr. Brewer did not provide them or the court with the statutorily mandated five days’ notice of intent to enter into the settlement agreement with the Trust. "[D]ue process requires that the released but non-settling defendant have sufficient notice of the reasonableness hearing to allow it to participate and raise issues challenging the settlement .... Without such notice, the nonsettling defendant is not bound by the determination of reasonableness.”⁵⁶ The statute, RCW 4.22.060(2), provides that the "claim ... is reduced by . . .an amount determined by the court to be reasonable.”⁵⁷

The notices were given and reasonableness hearings on other settlement agreements were held prior to entry of final judgment. Mr. Brewer simply did not provide Respondents with notice of his intent to settle with the Trust. Appellant offered no satisfactory reasons for not complying with the notice requirement. Despite this, though, the requirements of due process were satisfied when (1) Respondents moved the trial court for a reasonableness hearing on the Brewers’ settlement agreement with the Trust on August 21, 1992, (2) a reasonableness hearing was held on February 23, 1993, and (3) the trial court on May 7, 1993 found the settlement reasonable, entered final judgment and issued its memorandum decision. The trial court properly determined the $175,000.00 settlement was reasonable.

Proper Determination of "Amount Paid”

The trial court initially reduced the jury verdict of $372,300.00 to $354,500.00 by limiting Mr. Brewer’s judgment for special damages of $72,300.00 to $54,500.00, "in accordance with the proof adduced at trial.”⁵⁸ It then determined $218,100.00 to be the proper setoff amount by adding the total amount of the settlement agreement with the Trust, $175,000.00, and $43,100.00, the sum of other settlement agreements the Brewers entered into with other Defendants. The setoff amount was subtracted from the jury verdict, leaving the Brewers with a total of $136,400.00. The trial court then awarded Appellant $243.56 for costs and attorney fees, making the total judgment awarded to Appellant $136,643.56. Appellant contends the trial court’s reduction of the $354,500.00 jury verdict to $136,643.56 against Fibreboard, Owens-Corning and Pittsburgh-Corning violated RCW 4.22.060(3).

Appellant asserts the trial court should have set off the adjusted jury verdict of $354,500.00 by the amount actually paid by the Trust, $21,000.00, plus the amounts of the other settlements, which would have totaled $43,100.00.⁵⁹ Appellant thus contends the correct setoff amount should have been $64,100.00 and not $218,100.00.

Appellant relies on McNair v. Owens-Coming Fiberglas Corp.,60 a decision of the United States Court of Appeals for the Fifth Circuit. The court in McNair interpreted sections 33.013-.016 of the Texas Civil Practice and Remedies. The Texas statute is not identical nor substantially similar to our "Washington statute. That case, then, has no relevance to this case.

Appellant also urges this court to follow the reasoning of Krivanek v. Fibreboard Corp.61 In Krivanek, the Court of Appeals, Division One, set off the jury verdict by the total amount of the settlements actually paid to the appellant prior to trial.⁶² Defendant Owens-Corning Fiberglas, Inc. (OCF) claimed the trial court erred in not conducting the reasonableness hearing required by RCW 4.22.060(1).⁶³

Appellant in that case settled with ten of the eleven named defendants prior to trial. The jury awarded appellant’s estate $150,000.00 in damages for her product liability and death and survival claims. The trial court "reduced the $150,000.00 verdict by the amounts actually paid by the settling defendants . . . but did not reduce the verdict by the Fibreboard settlement because Fibreboard had not yet paid . . . ,”⁶⁴ The court "ordered OCF to pay the remaining portion of the verdict ...” because OCF would be "reimbursed to the extent Fibreboard paid.”⁶⁵ In her appeal, Appellant Krivanek claimed the "jury awarded a low verdict because it ignored the evidence.”⁶⁶ The Court of Appeals remanded the case for retrial only on the issue of damages, concluding that "the trial court abused its discretion in unreasonably finding the damage award to be within the range of the evidence.”⁶⁷ Respondent OCF "claimed it was error for the court not to conduct a reasonableness hearing ...” under RCW 4.22.060(1). The Court of Appeals, however, concluded a reasonableness hearing was "not necessary because the judgment against [the respondent] was less than the . . . settlement [with Fibreboard].”⁶⁸

In this case, the Brewers entered into a settlement agreement with the Trust for $175,000.00. It is undisputed that the Trust actually paid the Brewers $21,000.00. This left a balance of $154,000.00 owed by the Trust to the Brewers. It is also undisputed that given the financial condition of the Trust, it is unlikely the Trust will be able to pay even the anticipated forty-five percent of the $175,000.00 settlement, or $78,750.00, or a balance of $57,750.00 after reduction of the $21,000.00 already received.⁶⁹

Statement of Additional Authorities

Following the en banc hearing before this court, Appellant filed a "Statement of Additional Authorities” under RAP 10.8 which consisted of 368 pages comprising "Amended Memorandum, Orders and Final Judgment in Findley, et al. v. Falise, et al., In re Joint Eastern and Southern Districts Asbestos Litigation (U.S.D.C., E.D. N.Y. and S.D.N.Y., NYAL Index No. 4000) dated January 9, 1995, together with the stipulation of Settlement, and attachments.” As the rule allows, Appellant presented no argument for this citation. That case has been previously noted in the record before us and does not constitute "additional authorities.”

RAP 10.8 places no limitation on the volume of a statement of additional authorities. This submission, however, is more in the nature of a supplementation of the record. At any rate, we reject any interpretation of RAP 10.8 which would allow filing of a 368-page document. Even briefs are limited to fifty pages under RAP 10.4(b). We therefore reject this purported statement of additional authorities and. will not consider the extensive volume of material it contains.

Summary and Conclusions

The Legislature enacted the Tort Reform Act to encourage settlement and to assure tort victims complete satisfaction of their claims. It is not disputed that the $175,000.00 settlement agreement between Pierce E. Brewer and the Manville Personal Injury Trust was reasonable. Mr. Brewer did not provide Respondents with notice of his intent to enter into a settlement agreement with the Trust. Although this was a violation of due process under RCW 4.22.060, that violation was overcome when the court conducted a reasonableness hearing upon motion of Respondents. The trial court found the settlement agreement to be reasonable prior to entry of final judgment.

Consistent with RCW 4.22.060, a settlement agreement found to be reasonable may be used in determining a proper setoff amount. The trial court erroneously deducted the full amount of the $175,000.00 settlement with the Manville Trust which, though reasonable, will likely never be received by the Brewers. In fact, the only likely amount is the $21,000.00, or twelve percent, actually received. The predictive formula of forty-five percent under thé Class Action Payment plan, allowing the Brewers a total of $78,750.00, is speculative and unreliable given the acknowledged current financial condition of the Manville Trust.

We believe the better and fairer result would be achieved by valuing the settlement for setoff purposes at $21,000.00, the amount actually received by the Brewers under the $175,000.00 settlement agreement. Recalculation of the net award to the Brewers would then result in a revised judgment of $290,643.56 determined as follows:

Jury Award $372,300.00

Less Reduction:

Special Damages $17,800.00 -17,800.00

Less Setoff:

Trust Settlement $21,000.00

Other Settlement 43,100.00 -64,100.00

Net Jury Award $290,400.00

Attorney Fees and Costs 243.56

Total Judgment $290,643.56

We affirm the determination by the Kitsap County Superior Court that the $175,000.00 settlement agreement between Pierce E. Brewer and the Manville Personal Injury Settlement Trust was reasonable; but remand for recalculation of the net jury award based upon $354,500.00 less a reduction of $17,800.00 in special damages, less set-offs totaling $64,100.00, plus $243.56 for attorney fees and costs, for a total judgment of $290,643.56.

Durham, C.J., and Dolliver and Alexander, JJ., concur.

1 Verbatim Report of Proceedings, at 6-7, 11.

2 Verbatim Report of Proceedings, at 7-8.

3 Verbatim Report of Proceedings, at 23.

4 Verbatim Report of Proceedings, at 23-24.

5 Verbatim Report of Proceedings, at 9-10, 25.

6 Verbatim Report of Proceedings, at 25-28.

7 Verbatim Report of Proceedings, at 25-26.

8 Verbatim Report of Proceedings, at 10.

9 Verbatim Report of Proceedings, at 38.

10 Verbatim Report of Proceedings, at 39. Mesothelioma, an asbestos-related disease, "is a neoplastic tumor arising from the mesothelial surface lining, with possible contributions from the subsurface tissue of sersosal walls — pleural, peritoneal, or pericardial. It is a diffuse malignancy which spreads across the serous surfaces. Medical studies disagree whether pleural or peritoneal mesothelioma is more prevalent among asbestos workers. Although increasing dyspnea may be the presenting symptom, the onset of pleural mesothelioma is insidious and progressive. The same is true of peritoneal mesothelioma except that weight loss is an early symptom.” Christopher C. Mansfield, Asbestos: The Cases and the Insurance Problem,, 15 Forum 860, 863-64 (1979-80).

11 Verbatim Report of Proceedings, at 6, 41. Mr. Brewer died some time prior to May 4, 1992.

12 The original complaint is not in the Clerk’s Papers. See Clerk’s Papers, at 3, 114.

13 In the supplemental complaint, the plaintiff named as defendants Fibreboard Corporation; Pittsburgh-Corning Corporation; Keene Corporation, individually and as successor in interest to Baldwin-Ehret-Hill, Inc.; Armstrong Cork Company, Owens Corning Fiberglas Corporation; GAF Corporation, individually and as successor in interest to Ruberoid Company; Owens-Illinois, Inc., a/k/a Owens-Illinois Glass Company; Garlock, Inc.; T&C, pic, f/k/a Turner & Newall, PLC; Anchor Packing Company; Asbestos Corporation, Ltd.; Foster-Wheeler Energy Corporation; E.J. Bartells Company; G.K. Technologies, Inc., successor in interest to General Cable Company; General Electric Company; Okonite Company; Westinghouse Electric Corporation; Ericcsson North America, Inc., successor in interest to Anaconda Wire & Cable Company, and successor in interest to the Continental Cable Company; Cooper Industries, Inc., successor in interest to the Belden Company; Phelps Dodge Copper Products/ Phelps Dodge Corporation; Marmon Holdings, Inc., successor in interest to Rockbbestos Company, USX, Inc., successor in interest to American Wire & Steel; Parker-Hannifin Corporation; and Graybar Electric Company, Inc. Clerk’s Papers, at 1-2.

14 Clerk’s Papers, at 2.

15 Clerk’s Papers, at 3.

16 In 1982, Johns-Manville filed for bankruptcy under Chapter 11 and changed its name to the Manville Corporation. On August 22,1986, the Manville Corporation created the Trust as part of the Second Amended and Restated Plan of Reorganization. "[T]he Trust became the exclusive entity from which to seek compensation for existing and future asbestos health claims caused by exposure to Manville products.” In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648, 652 (E. & S.D.N.Y. & Bankr. S.D.N.Y. 1990); accord In re Joint E. & S. Dists. Asbestos Litig., 129 B.R. 710, 733 (E. & S.D.N.Y. 1991).

17 Clerk’s Papers, at 147-48.

¹⁸

19 The Exigent Health Release defines "Released Parties” as "the people and organizations that under the terms of this Release I agree to discharge from certain actual or potential legal duties, claims or liabilities. Released Parties include but are not limited to the Trust, Manville Corporation, all Settling Insurance Companies as defined in the Plan, their trustors, trustees, directors, officers, agents, servants, employees, attorneys, successors and assigns, heirs and executors and any and all other persons or organizations who were entitled to benefit from the injunction entered on November 28, 1988 in the Order Confirming the Plan, and subsequent Orders issued by the U.S. Bankruptcy Court for the Southern District of New York or the U.S. District Court for the Southern District of New York. In this release, the Released Parties are collectively referred to as the 'Trust.’ ”

20 See Clerk’s Papers, at 147-48.

21 Clerk’s Papers, at 185-86.

22 There is no information in the record indicating the date of Mr. Brewer’s death, nor are there any documents in the Clerk’s Papers providing information on probate of his estate.

23 Clerk’s Papers, at 231.

24 Clerk’s Papers, at 139-41.

25 Clerk’s Papers, at 140.

26 Clerk’s Papers, at 154.

27 Clerk’s Papers, at 219-22.

28 Clerk’s Papers, at 229.

29 Appellant Brewer settled with Pittsburgh-Corning Corporation for $45,500.00 after the judgment was entered.

30 Clerk’s Papers, at 233.

31 See also Philip A. Talmadge, Washington’s Product Liability Act, 5 U. of Puget Sound L. Rev. 1 (1981).

32 Glover v. Tacoma Gen. Hosp., 98 Wn.2d 708, 711, 658 P.2d 1230 (1983).

33 Glover, 98 Wn.2d at 711.

34 Pickett v. Stephens-Nelsen, Inc., 43 Wn. App. 326, 332, 717 P.2d 277 (1986).

35 Glover, 98 Wn.2d at 714-15.

36 See Glover, 98 Wn.2d at 718 n.3; Philip A. Talmadge, Washington’s Product Liability Act, 5 U. of Puget Sound L. Rev. 1, 19 (1981).

37 98 Wn.2d 708, 716 658 P.2d 1230 (1983).

38 Glover, 98 Wn.2d at 717.

39 Glover, 98 Wn.2d at 718.

40 Glover, 98 Wn.2d at 718; accord Pickett, 43 Wn. App. at 332.

41 RCW 4.22.060(1).

42 Zamora v. Mobil Oil Corp., 104 Wn.2d 211, 222, 704 P.2d 591 (1985).

43 Glover, 98 Wn.2d at 710-11.

44 Glover, 98 Wn.2d at 712.

45 Glover, 98 Wn.2d at 716.

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48 56 Wn. App. 725, 730, 785 P.2d 470, review denied, 114 Wn.2d 1025 (1990).

49 Fraser, 56 Wn. App. at 731.

50 Br. of Resp’t Fibreboard Corp., at 20 n.3.

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52 Clerk’s Papers, at 142-46.

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55 Clerk’s Papers, at 220-21.

56 Fraser, 56 Wn. App. at 730.

57 RCW 4.22.060(2).

58 Clerk’s Papers, at 222. No one takes issue with this finding.

59 Pierce E. Brewer entered into settlement agreements with Anchor Packing for $500.00; Asbestos Corporation for $6,500.00; Babcock & Wilcox for $3,500.00; the Center for Claims Resolution, Armstrong Cork, GAF and Turner & Newall for $22,500.00; Combustion Engineering for $3,750.00; Foster-Wheeler for $600.00; Garlock for $1,500.00; Keene Corporation for $3,900.00 and Parker Hannifin for $350.00. These total $43,100.00. The trial court found these settlement agreements to be reasonable under RCW 4.22.060. See Clerk’s Papers, at 155.

60 890 F.2d 753 (5th Cir. 1989)

61 72 Wn. App. 632, 865 P.2d 527, review denied, 124 Wn.2d 1005 (1994).

62 Krivanek, 72 Wn. App. at 634.

63 Krivanek, 72 Wn. App. at 635.

64 Krivanek, 72 Wn. App. at 636 n.3.

65 Krivanek, 72 Wn. App. at 636 n.6.

66 Krivanek, 72 Wn. App. at 636.

67 Krivanek, 72 Wn. App. at 637. The court determined the total amount of Krivanek’s pension and wage losses to be nearly five times more than the actual jury award.

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69 Under terms of the Class Action Payment Plan, all claimants would receive forty-five percent of their liquidated values. Once all claimants have received their forty-five percent, "then all additional distributions from the pool shall be made pro rata to all claimants.” See In re Joint E. & S. Dists. Asbestos Litig., 120 B.R. 648 (E. & S.D.N.Y. & Bankr. S.D.N.Y. 1990). In this case, the settlement agreement between Mr. Brewer and the Trust for $175,000.00 would be reduced to forty-five percent for a total of $78,750.00. $21,000.00 already paid by the Trust was then subtracted from $78,750.00 leaving the maximum amount the Brewers might receive in the future as $57,750.00. Only when all claimants have received forty-five percent of their liquidated values would the Brewers then be eligible to receive additional pro rata distributions from the Trust. Clerk’s Papers, at 166.