Cockrum v. C.H. Murphy/Clark-Ullman, Inc.

• Court: Washington Supreme Court
• Decided: May 29, 2025
• Docket: 102,881-4
• Status: Published

Opinion

FILE THIS OPINION WAS FILED FOR RECORD AT 8 A.M. ON MAY 29, 2025

IN CLERK’S OFFICE SUPREME COURT, STATE OF WASHINGTON SARAH R. PENDLETON MAY 29, 2025 SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

JEFFERY L. COCKRUM ) ) No. 102881-4 ) Petitioner, ) ) v. ) ) EN BANC C.H. MURPHY/CLARK-ULLMAN, ) INC.; NORTH COAST ELECTRIC ) COMPANY; METROPOLITAN ) LIFE INSURANCE COMPANY; ) PFIZER, INC.; P-G INDUSTRIES, ) INC., as successor-in-interest to ) PRYOR GIGGEY CO., INC.; ) THERMO FISHER SCIENTIFIC, ) Filed: May 29, 2025 INC.; and UNION CARBIDE ) CORPORATION, ) ) Defendants, ) ) HOWMET AEROSPACE, ) INC., f/k/a/ ARCONIC, INC., as ) corporate successor to ALCOA, ) INC., ) ) Respondent. ) ______________________________ )

MONTOYA-LEWIS, J.—Jeffrey Cockrum developed mesothelioma after

decades of working for Alcoa Inc., where he was repeatedly exposed to asbestos, in Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

some instances without any protective gear at all. It is undisputed that Alcoa

knowingly exposed its employees to asbestos, knowing that asbestos was hazardous

and could lead to long-term injuries. It was several decades after Cockrum’s

exposures to asbestos that the disease was discovered and diagnosed because of the

latent nature of this cancer, like other cancers and diseases. After being diagnosed

with this form of cancer linked to asbestos exposure, Cockrum brought a personal

injury action against Howmet Aerospace, Inc. (formerly known as Arconic Inc., a

corporate successor to Alcoa), 1 claiming his employer deliberately intended to injure

him by exposing him to asbestos without proper warnings or protections. Based on

Howmet’s assertions that employers are immune from suit absent their actual

knowledge that injury was certain to occur, the superior court granted Howmet’s

motion for summary judgment and dismissed Cockrum’s suit. The Court of Appeals

affirmed. We reverse.

Howmet contends an employee cannot pursue such a civil action against their

employer for workplace injuries caused by asbestos exposure. Washington’s

Industrial Insurance Act (IIA)2 generally provides that workers are entitled to

compensation without regard to employer fault, and employers are immune from

lawsuits arising from workplace injuries. RCW 51.04.010. That said, employers are

1 We refer to “Howmet” as the respondent and “Alcoa” as Cockrum’s employer. 2 Title 51 RCW. 2 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

not immune from lawsuits if an “injury results to a worker from the deliberate

intention of [their] employer to produce such injury.” RCW 51.24.020. The trial

court granted summary judgment to Howmet on this basis, concluding Cockrum

could not satisfy the deliberate injury exception. The issue before this court is

whether the evidence Cockrum presented creates a genuine issue of material fact that

Alcoa had actual knowledge an injury was certain to occur. Under this court’s prior

decision in Walston v. Boeing Co., 181 Wn.2d 391, 334 P.3d 519 (2014), no

employee could sue for a latent disease like mesothelioma because they could never

satisfy the level of certainty required there; Howmet would prevail and latent

diseases like cancer would not be injuries any employee could sue for, regardless of

their employer’s intent. This court does not lightly set aside precedent, but justice

requires us to admit our mistakes when we make them and to overrule precedent that

is demonstrably incorrect and harmful. For the reasons explained below, we now

recognize Walston to be such a decision and must be overruled.

We conclude that in latent disease cases, virtual certainty is sufficient to prove

the employer’s actual knowledge that injury was certain to occur. This does not alter

the standard of actual knowledge injury is certain to occur that is generally required

to satisfy the deliberate injury exception for immediate and visible types of injuries;

this virtual certainty standard is limited only to latent disease cases. We recognize

Washington courts’ long-standing narrow reading of RCW 51.24.020 and conclude

3 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

that within this narrow exception, there is room for the possibility of a tort action

when an employer deliberately causes injury in the form of disease. We remand this

case to the trial court for summary judgment to be determined under the virtual

certainty standard.

FACTS AND PROCEDURAL HISTORY

A. Factual Background

Cockrum was employed at Alcoa’s Wenatchee Works aluminum facility from

1967 to 1997, where he was exposed to asbestos numerous times throughout his

career. He worked in dusty areas as a laborer and recalls wearing paper masks in

those areas but does not recall Alcoa requiring him or his coworkers to use any

respiratory protection. Cockrum believes the best possibility he had of being exposed

to asbestos was working in the facility’s environmental lab, where he tested samples

for asbestos without any protective gear. Cockrum claims Alcoa never warned him

about the hazardous properties of asbestos material, nor did it provide respiratory

protection for workers in its labs. 1 Clerk’s Papers (CP) at 94, 97; 2 CP at 664-67.

Evidence in the record reveals that prior to and contemporaneous with

Cockrum’s asbestos exposures, Alcoa knew asbestos exposure was hazardous and

that asbestos-related diseases could manifest many years after exposure. See, e.g.,

1 CP at 366 (memorandum from Alcoa (July 6, 1982) (“For a number of years, Alcoa

has recognized the very serious potential health hazard represented by the various

4 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

forms of asbestos use in our plant. Exposure to asbestos fibers can lead to asbestosis

and various forms of cancer.”)); see also id. at 292-389; 2 CP at 731-37, 751-52,

765-70, 774. Further, Alcoa had a medical monitoring program for its employees,

which provided evidence that from at least 1953 onward, Alcoa’s employees were

developing asbestos disease symptoms, such as thickened pleura, calcified pleural

plaques, fibrosis in the lungs, and some were even developing asbestos-related

diseases, such as asbestosis and early mesothelioma. Alcoa ultimately knew of the

harms of asbestos in its facilities prior to and contemporaneous with Cockrum’s

exposures.

Cockrum was diagnosed with mesothelioma, a cancer caused by asbestos

exposure, in March 2022. His doctors noted his “history of occupational asbestos

exposure at Alcoa” as part of their diagnosis. 2 CP at 673. Cockrum’s medical expert

opined that his mesothelioma was caused by his cumulative exposures to asbestos.

The expert explained that latent diseases “do not result in immediate apparent injury

upon exposure but instead do not manifest until sufficient time has lapsed. This is

true for all human cancers.” Id. at 617. However, the expert also testified that

asbestos-related disease is never certain to result from asbestos exposure or even

from developing pleural plaques. In fact, the expert was “not aware of any

carcinogen for which exposure at a particular dose is medically certain to cause

cancer in everyone.” Id. at 618 (emphasis added).

5 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

B. Procedural History

Cockrum brought a personal injury suit against Howmet, the corporate

successor to his employer, Alcoa. 3 Cockrum claimed his mesothelioma was

proximately caused by asbestos exposure sustained while working for Alcoa. He

further claimed this was a deliberate injury under RCW 51.24.020 because Alcoa

had actual knowledge injury was certain to occur from asbestos exposure, yet it

willfully disregarded that knowledge by continuously exposing him to asbestos

without proper warning or protection.

The superior court granted summary judgment for Howmet, concluding

Cockrum could not demonstrate actual knowledge necessary to meet the deliberate

injury exception. 3 CP at 1052-53. It reasoned that Walston precluded Cockrum’s

lawsuit because the facts were “materially indistinguishable” and “Walston

considered and rejected, again in material part, the plaintiffs’ theories here.” Rep. of

Proc. at 27. The court declined to reach the issue of willful disregard as it found

Cockrum’s case failed on the actual knowledge prong.

The Court of Appeals affirmed in an unpublished opinion. Cockrum v.

C.H. Murphy/Clark-Ullman, Inc., No. 85182-9-I, slip op. at 2, 8 (Wash. Ct. App.

Feb. 12, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/851829.pdf.

3 Cockrum also sued a number of entities that manufactured, sold, distributed, installed, specified, used, or purchased asbestos products. Howmet is the only named defendant participating in this appeal. 6 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

It concluded the evidence demonstrated that at most, Alcoa knew of the hazards of

asbestos, which, like in Walston, did not amount to actual knowledge that injury was

certain to occur. The court particularly noted Cockrum’s medical expert conceding

that asbestos-related disease is never certain to result from asbestos exposure or even

from pleural plaques. Like the trial court, the Court of Appeals did not reach the

willful disregard prong, as it concluded summary judgment was proper based on

Cockrum’s failure to demonstrate actual knowledge. We granted review.

ANALYSIS

We review the grant of a motion for summary judgment de novo. Benjamin v.

Wash. State Bar Ass’n, 138 Wn.2d 506, 515, 980 P.2d 742 (1999). Summary

judgment is appropriate when there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. CR 56(c). All evidence must

be viewed in the light most favorable to the nonmoving party. Clements v.

Travelers Indem. Co., 121 Wn.2d 243, 249, 850 P.2d 1298 (1993).

In 1911, in a time of burgeoning industry, Washington enacted what later

became the IIA as the result of a “grand compromise” between employers and

employees, granting injured employees “swift, no-fault compensation” for

on-the-job injuries and granting employers immunity from civil suits arising from

such injuries. Birklid v. Boeing Co., 127 Wn.2d 853, 859, 904 P.2d 278 (1995)

(citing Stertz v. Indus. Ins. Comm’n, 91 Wash. 588, 590-91, 158 P. 256 (1916);

7 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

RCW 51.04.010). Part of the compromise, however, included that “[i]f injury results

to a worker from the deliberate intention of [their] employer to produce such injury,”

then the worker has the right to pursue recovery through civil suit “for any damages

in excess of compensation and benefits paid or payable” under the IIA.

RCW 51.24.020. As the Birklid court articulated, when employers deliberately

intend to injure employees, “[e]mployees’ remedies . . . should not be limited by the

IIA” because “[e]mployers who engage in such egregious conduct should not burden

and compromise the industrial insurance risk pool.” 127 Wn.2d at 859.

Up until the 1990s, Washington courts found “deliberate intention” only

when an employer or its agent physically assaulted an employee. Id. at 861-62. But,

in Birklid, this court concluded that limiting the deliberate injury exception to assault

cases “effectively read the statutory exception to the IIA’s exclusive remedy policy

nearly out of existence.” Id. at 862. “If physical assault were the perimeter

of the exception the Legislature intended, however, it could have said so directly

rather than using the words ‘deliberate intention . . . to produce such injury.’ The

statutory words must, therefore, mean something more than assault and battery.”

Id. at 862-63 (alteration in original) (quoting RCW 51.24.020). This court

recognized that though the deliberate injury exception is narrow, it still encompasses

any injury caused by deliberate intention, meaning “‘a specific intent, and not merely

8 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

carelessness or negligence, however gross.’” 4 Id. at 860 (quoting Delthony v.

Standard Furniture Co., 119 Wash. 298, 300, 205 P. 379 (1922) (citing Jenkins v.

Carman Mfg. Co., 79 Or. 448, 454, 155 P. 703 (1916))). Further, the court reaffirmed

the employer’s intent must relate to the injury, not the act causing the injury.

Id. at 861. Under these strictures, the court adopted a two-pronged test, holding an

employer had deliberate intention to injure an employee when it (1) “had actual

knowledge that an injury was certain to occur” and (2) “willfully disregarded that

knowledge.” Id. at 865.

Applying this two-pronged test to the facts in Birklid, the court found that

under prior precedent, the plaintiffs’ evidence could not have justified a finding of

deliberate intention because they were not assaulted, but under the new test, the

evidence was sufficient to survive summary judgment. Id. at 862-63. There, Boeing

employees who were part of preproduction testing for a material containing phenol-

formaldehyde resin complained of symptoms such as “‘dizziness, dryness in nose

4 This court rejected deliberate intention tests from other jurisdictions that did not align with Washington courts’ narrow interpretation of RCW 51.24.020 and the long-standing deference given to legislative intent embodied in RCW 51.04.010. Birklid, 127 Wn.2d at 865. It rejected the “substantial certainty” test, which defines intentional torts more broadly and recognizes deliberate intention “‘[i]f the actor knows that the consequences are certain, or substantially certain, to result from [their] act, and still goes ahead.’” Id. at 864 (quoting Beauchamp v. Dow Chem. Co., 427 Mich. 1, 21, 398 N.W.2d 882 (1986)). It also rejected Oregon’s “conscious weighing” test, which recognizes deliberate intention if “the employer had an opportunity consciously to weigh the consequences of its act and knew that someone, not necessarily the plaintiff specifically, would be injured.” Id. at 865 (citing Lusk v. Monaco Motor Homes, Inc., 97 Or. App. 182, 775 P.2d 891 (1989)). 9 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

and throat, burning eyes, and upset stomach.’” Id. at 856 (quoting the record). “As

Boeing’s supervisor predicted, when full production began” using the same resin,

workers experienced similar symptoms. Id. The court concluded that Boeing

deliberately intended to injure the plaintiffs because it had observed the

preproduction workers becoming ill from exposure to the resin when it put the resin

into production. Id. at 862-63. Boeing willfully disregarded actual knowledge of

continuing injuries to its employees when it “knew in advance its workers would

become ill from the phenol-formaldehyde fumes, yet put the new resin into

production.” Id. at 863.

Since Birklid, Washington courts have found plaintiffs alleged facts

sufficient to support an inference of deliberate intention in only a few cases—almost

exclusively cases similar to Birklid where employers “knew that the employees

were suffering from chemical-related illnesses and that, unless the working

environment was changed, continuing injury was certain.” Baker v. Schatz,

80 Wn. App. 775, 783, 912 P.2d 501 (1996); see also Hope v. Larry’s Mkts.,

108 Wn. App. 185, 29 P.3d 1268 (2001). In other words, following Birklid, plaintiffs

have been able to satisfy the deliberate injury exception in only two circumstances:

(1) physical assault and (2) exposure to toxic chemicals causing continuous,

10 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

immediate, and visible injury. 5 Courts have declined to find actual knowledge

when injuries were not certain to occur as the result of hazardous exposures, even if

the employers knew of the hazards and that they were likely or probable

to cause injuries. See, e.g., Garibay v. Advanced Silicon Materials, Inc.,

139 Wn. App. 231, 238-39, 159 P.3d 494 (2007) (although employer knew or should

have known that a rupture of a pipe was imminent or certain to eventually occur, the

employer did not have actual knowledge that the injury to the plaintiff was certain

to occur); Vallandigham, 154 Wn.2d at 18 (despite high probability that a student

who had repeatedly harmed school staff would injure school staff again, the

student’s behavior was so unpredictable that “the school district here could not have

been certain that its strategies for modifying [the student’s] behavior would fail such

that [the student] would continue to injure school staff”).

Our case law has treated an injury in the form of disease that takes time to

manifest (like cancer) distinct from other types of injury, like rashes or burns that

occur very quickly after exposure. Further, when workplace exposures result in

5 There is only one case post-Birklid where facts were sufficient to justify a finding that an employer deliberately intended to injure an employee that did not involve exposure to toxic chemicals causing continuous immediate and visible injury. In Michelbrink v. Washington State Patrol, 191 Wn. App. 414, 419-20, 363 P.3d 6 (2015), the court found that there could have been deliberate intent when the Washington State Patrol, the plaintiff’s employer, shot the plaintiff with a Taser during a work training and he eventually developed a fracture in his vertebrae and a bulged disc as a result of the electric shock. The court reasoned that the employer physically assaulted the plaintiff by shooting him with the Taser, and it knew in doing so that an injury was certain to occur, even if it did not foresee that specific injury. Id. at 430. 11 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

disease, our precedent has rendered it impossible to prove the actual knowledge

prong of Birklid’s test for deliberate injury. In 2014, this court closed the door

on proving actual knowledge injury was certain to occur in asbestos-related

diseases—and all latent diseases—when it decided Walston.

In Walston, the plaintiff-employee was exposed to asbestos throughout the

decades he worked for Boeing; he was later diagnosed with mesothelioma, as

“caused by inhaling asbestos fibers.” 181 Wn.2d at 394. It was undisputed that

Boeing was aware of the hazards of asbestos exposure by the time of the plaintiff’s

exposure; that asbestos exposure could manifest into diseases like cancer, even

decades after exposure; and that recommended safety precautions could be taken to

reduce asbestos exposure. Id. at 395. Despite such knowledge, the court concluded

that the plaintiffs could not show the employer had actual knowledge that injury was

certain to occur because, as the plaintiff’s expert testified, asbestos exposure is never

certain to cause mesothelioma or any other disease. Id. at 394, 397. Additionally,

the court rejected that plaintiff’s claim that the employer’s actual knowledge of

employees developing asymptomatic cellular-level injury from asbestos exposure

could satisfy the deliberate injury exception, finding that such asymptomatic

cellular-level injuries (1) are not themselves compensable injuries, and

(2) create only a risk of compensable injury. Id. at 398; accord Shellenbarger v.

Longview Fibre Co., 125 Wn. App. 41, 103 P.3d 807 (2004) (employer may have

12 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

been negligent in exposing employees to asbestos but evidence did not amount to

actual knowledge that injury was certain to occur when employer thought the

workplace was safe and did not know of any employees exhibiting signs of injury at

the time of exposure), review denied 154 Wn.2d 1021 (2005).

The dissent in that 5-4 decision challenged the majority’s conclusion that

“certainty” under the deliberate intention standard set forth in Birklid means

“absolute certainty that a particular plaintiff will develop a particular disease.”

Walston, 181 Wn.2d at 403 (Wiggins, J., dissenting). The dissent reasoned that in

Birklid, the employer did not need to “foretell every specific harm or victim” and, in

fact, the employer “did not know which workers would get sick, whether the injuries

would be compensable, or the severity of illnesses workers would experience.” Id.

Additionally, the dissent opined that the unique qualities of diseases arising from

exposure to toxic substances “makes it near impossible to predict with absolute

certainty” the injuries that will result from such exposures. Id. at 401. In so doing,

the dissent referred to Birklid’s prediction of that result; the dissent observed that

“[r]equiring 100 percent certainty would once again read the statutory exception out

of existence in the context of disease” and, further, would violate the legislature’s

clear intent of including diseases in the exception by defining diseases as injuries

under the chapter. Id. at 403-04 (citing RCW 51.24.030(3)). The dissent urged that

recognizing deliberately caused diseases under the deliberate injury exception would

13 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

not compromise the no-fault system created by the IIA but, rather, would hold

employers accountable for deliberate conduct as the IIA envisioned. Id. at 410-11.

Now, in this case, where the facts are materially indistinguishable from those

in Walston, the Court of Appeals concluded that since asbestos exposure is never

certain to cause asbestos disease, Cockrum’s deliberate intention claim was

precluded by the holding in Walston. Cockrum, No. 85182-9-I, slip op. at 6-7. Under

Walston, latent diseases such as asbestos-related diseases can never satisfy the first

prong of the deliberate intention test; while we seemed to indicate it would be

possible to do so in that opinion, after reviewing subsequent decisions, pragmatically

speaking, it seems to be impossible.

Although we do not lightly set aside precedent, we will do so upon clear

showing it is both incorrect and harmful. State v. Crossguns, 199 Wn.2d 282, 290,

505 P.3d 529 (2022); State v. Scherf, 192 Wn.2d 350, 379, 429 P.3d 776 (2018) (“A

decision is incorrect if it is based on an inconsistency with the court’s precedent,

with the State’s constitution or statutes, or with public policy considerations. A

decision is harmful if it has a detrimental impact on the public interest.”). Thus,

today we conclude Walston’s exclusion of diseases from recovery under

RCW 51.24.020 incorrectly contradicts the plain text of the statute and public policy

behind the IIA. The holding in Walston is also harmful because it denies relief to

employees who happen to be injured in the form of disease that may take years to

14 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

manifest rather than immediate and visible injuries. Therefore, Walston must be

overruled.

First, Walston’s requirement of complete certainty that a disease will occur is

incorrect because it is inconsistent with the text of the IIA and the policy that drives

it. If a statute’s meaning is plain on its face, we “must give effect to that

plain meaning as an expression of legislative intent.” Dep’t of Ecology v.

Campbell & Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). RCW 51.24.020

allows an employee to bring a cause of action against their employer if an injury

results “from the deliberate intention” of the employer. The term “certainty” does

not appear anywhere in the statute; rather, the Birklid court used “actual knowledge

that an injury was certain to occur” to help define the term “deliberate intention” as

used in the statute. 127 Wn.2d at 865. Walston took it further, concluding that as

“asbestos exposure is not certain to cause mesothelioma or any other disease,” an

employer cannot have actual knowledge a disease such as mesothelioma is certain

to occur. 181 Wn.2d at 397. By that logic, workplace-caused diseases are excluded

from the deliberate intention statute, though the plain language of the statute draws

no such distinction. In fact, the IIA defines “injury” specifically for the purposes of

the chapter permitting certain causes of action to include any “disease” compensable

15 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

under the IIA. RCW 51.24.030(3). 6 But under Walston, diseases cannot be

compensable under that chapter, contrary to the statutory text, because of the

standard this court set. This may be the result the Walston court was trying to avoid,

but the IIA does not seem to support that apparently categorical conclusion.

Further, the IIA reflects the legislative policy that employers who do

deliberately intend to injure their employees do not enjoy the IIA’s general immunity

from lawsuits for workplace injuries. Birklid, 127 Wn.2d at 859-60. Neither

that policy nor the text of the IIA treat diseases differently from other injuries

because the purpose of the deliberate intention exception is to hold employers

accountable based on their intent to cause injury, not based on the

type of injury that results. See id. at 873 (the deliberate intention exception

is meant to “‘deter intentional wrongdoing by employers’” (quoting Provost v.

Puget Sound Power and Light Co., 103 Wn.2d 750, 753, 696 P.2d 1238 (1985)));

6 While the IIA elsewhere provides a different definition of “injury” as “a sudden and tangible happening, of a traumatic nature, producing an immediate or prompt result, and occurring from without, and such physical conditions as result therefrom” under RCW 51.08.100, it also provides that words in the IIA shall have the meaning given in chapter 51.08 RCW, “[u]nless the context indicates otherwise.” RCW 51.08.010. The specific definition of “injury” in chapter 51.24 RCW is explicit context provided by the legislature that this particular definition applies to the chapter that permits causes of action like this one. See Ass’n of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d 342, 356, 340 P.3d 849 (2015) (“A general statutory provision must yield to a more specific statutory provision.” (citing Waste Mgmt. of Seattle, Inc. v. Utils. & Transp. Comm’n, 123 Wn.2d 621, 629-30, 869 P.2d 1034 (1994); Kustura v. Dep’t of Lab. & Indus., 169 Wn.2d 81, 91, 233 P.3d 853 (2010))). The fact that the legislature chose to apply the definition of “injury” including diseases to the entirety of chapter 51.24 RCW rather than making the choice to limit the definition shows intent to depart from the definition of “injury” under RCW 51.08.100 and, rather, include diseases for the purpose of the deliberate intention exception under RCW 51.24.020. RCW 51.24.030(3). 16 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

see also Harry v. Buse Timber & Sales, Inc., 166 Wn.2d 1, 19, 201 P.3d 1011 (2009)

(“A core purpose of the IIA is to allocate the cost of workplace injuries to the

industry that produces them, thereby motivating employers to make workplaces

safer.”); see also Br. of Amicus Curiae Dep’t of Lab. & Indus. at 4 (“exposure to the

expenses of the deliberate injury tort dissuades employers from perpetuating

deliberate exposure to asbestos”), 22 (“Employers should not be permitted to play

Russian roulette with workers’ lives.”).

Scientific understanding of latent diseases and their causes may have evolved

since the passage of the IIA (and will likely continue to evolve), but the policy of

providing redress for deliberately caused workplace injuries has not. Walston is

incorrect because it adds words to the statute where there are none (excluding

diseases caused by deliberate intention), renders other language superfluous

(RCW 51.24.030(3)’s inclusion of “disease” as a type of injury compensable in a

cause of action under that chapter), and undermines the policy of providing a cause

of action for deliberately intended workplace injuries including diseases.

Second, Walston is harmful because it denies recovery for diseases caused by

employers’ deliberate intent. “Employees’ remedies for deliberate injury by

employers should not be limited by the IIA. Employers who engage in such

egregious conduct should not burden and compromise the industrial insurance risk

pool.” Birklid, 127 Wn.2d at 859. As discussed, since the law requires absolute

17 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

certainty under Walston, this means employers are immune from suit for not only

cancers like mesothelioma, but for any latent disease caused by their deliberate intent

because it is “near impossible to predict with absolute certainty how each exposure

will affect a particular individual.” 181 Wn.2d 401 (Wiggins, J., dissenting). That

rule means employers can avoid liability for requiring employees to handle nuclear

waste without protection or requiring employees to smoke two packs of cigarettes

every day, resulting in employees eventually developing cancer. The employer

conduct in those scenarios is more than gross negligence; rather, it crosses into the

realm of deliberate intention. Under the logic in Walston, any employee who

contracts a disease arising from exposure to a toxic substance and their employer’s

deliberate intent to produce that injury has no recourse under RCW 51.24.020. That

result is both harmful and absurd, given the legislature’s intent behind the exception.

Therefore, we overrule Walston as clearly incorrect and harmful.

Contrary to counsel’s contentions, there is no need to disturb the long-

standing precedent acknowledged by and continued in Birklid. In Birklid, the court’s

task was to clarify that the deliberate intention exception applies to more than just

assault cases because up to that point, our courts had “effectively read the statutory

exception to the IIA’s exclusive remedy policy nearly out of existence.” 127 Wn.2d

at 862. Now, recognizing that Walston effectively read the exception out of existence

for a category of injuries, our task is to give effect to the legislature’s decision to

18 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

include diseases as injuries within that exception. Given the unique characteristics

of latent diseases in contrast to the immediate and visible injuries contemplated by

our precedent, it is necessary to clarify when an employer may have deliberate

intention to cause such an injury in line with the legislative intent and statutory text

of RCW 51.24.020. We hold that virtual certainty is sufficient to prove actual

knowledge in latent disease cases. This degree of certainty is consistent with both

purposes of the deliberate intention exception and the holding in Birklid—shielding

employers from liability when injuries result from accidents, but still holding

employers accountable in the narrow circumstances where there is deliberate intent

to injure. Id. at 863 (“There was no accident here.”).

Virtual certainty that a latent disease will occur may be evidenced by a number

of factual circumstances, such as (1) the employer’s knowledge of ongoing, repeated

development of symptoms known to be associated with the development of latent

disease over time, (2) the employer’s knowledge of symptoms developing in

employees similarly situated to the plaintiff-employee, (3) the timing of such

symptoms developing prior to or contemporaneous with the plaintiff-employee’s

exposure(s), and (4) whether the exposure arises from a common major cause within

the employer’s control. This is a nonexclusive set of factors, as we recognize both

that the individual facts of a case may be relevant and that we cannot predict the

evolution of scientific understanding surrounding the development of diseases from

19 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

workplace exposures. Although a person with symptoms that could potentially

develop into disease is not guaranteed to develop a latent disease, such symptoms

do “imply a lifelong elevated risk for . . . cancer.” 2 CP at 807. There are

circumstances under which an employer may have sufficient knowledge of the

hazardousness of the exposure, the existence of symptoms linked to latent disease,

and the causal relationship between the two for the employer to form actual

knowledge disease is virtually certain to occur. In those circumstances, the actual

knowledge prong of the deliberate injury exception is satisfied.

There is a notable legal difference between negligence and virtual certainty

that an injury will occur. Birklid, 127 Wn.2d at 860 (quoting Delthony,

119 Wash. at 300). Employers remain immune for negligently caused injuries,

including disease. See id. at 863 (“There was no accident here.”); see also

9 LEX K. LARSON ET AL., LARSON’S WORKERS’ COMPENSATION LAW § 103.03,

at 103-9 (rev. ed. 2024) (“[W]hat is being tested [in deliberate injury exception

cases] is not the degree of gravity or depravity of the employer’s conduct, but rather

the narrow issue of the intentional versus the accidental quality of the precise event

producing injury.”). Part of the “grand compromise” of the IIA, however, is that

employees must be able to bring civil claims to hold employers accountable for

deliberate injuries caused by their employer. Birklid, 127 Wn.2d at 859. Even under

the narrow reading of the deliberate intention exception affirmed by decades of

20 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

Washington precedent, there is room for liability where injury in the form of disease

results from the deliberate intention of the employer. RCW 51.24.020.

As long as disease is a type of injury compensable under the IIA, the law must

account for the uniqueness of a disease as a type of injury and allow for recovery

when the employer is virtually certain disease will occur. The Birklid certainty

standard remains for cases where injuries are immediate and visible, such as

chemical exposures causing rashes, nausea, dizziness, etc., like in Birklid, Baker,

and Hope. However, the standard to prove deliberate intention for causing latent

diseases must be different from the standard set forth in Birklid due to the different

nature of such injuries. Without such a standard, employers who know disease is

virtually certain to occur in employees based on employees developing known

disease symptoms would be excused from liability and escape their responsibility to

bear the cost of appropriate remedial measures, which would be contrary to the text

and policy of the IIA. See Birklid, 127 Wn.2d at 859-60, 873.

We hold that a plaintiff can satisfy the deliberate injury exception under

RCW 51.24.020 and Birklid if they demonstrate the employer had actual knowledge

that latent diseases are virtually certain to occur and willfully disregard such

knowledge. Birklid is a two-pronged test: a plaintiff must demonstrate both that the

employer had the requisite knowledge of the certainty of injury and that the

employer willfully disregarded that knowledge. Id. at 865. Thus, even if a plaintiff

21 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

demonstrates actual knowledge of virtual certainty, an employer may not be liable

if it took known remedial measures within its control. Here, the trial court granted

summary judgment to Howmet on the basis of the actual knowledge prong under

Walston and did not reach the second prong of willful disregard. Walston is now

overruled. We therefore reverse and remand to the trial court to reevaluate summary

judgment under the actual knowledge standard we adopt today.

CONCLUSION

In latent disease cases, an employer’s virtual certainty that disease will occur

satisfies the actual knowledge prong of the IIA’s deliberate injury exception.

We reverse and remand to the trial court for further proceedings consistent with this

opinion.

22 Cockrum v. C.H. Murphy/Clark-Ullman, Inc. No. 102881-4

______________________________

WE CONCUR:

___________________________ ______________________________

___________________________ ______________________________ Vanderwood, J.P.T.

23 Cockrum v. C.H. Murphy/Clark-Ullman, Inc.

No. 102881-4

MADSEN, J. (dissenting)—Washington’s legislature long ago decided that

workers would receive swift, no-fault compensation for injuries suffered on the job rather

than through civil litigation. Lawmakers enacted this grand compromise in 1911, which

later became the Industrial Insurance Act (IIA), Title 51 RCW. In exchange for a

guarantee of workers’ compensation, employers were given immunity from most

lawsuits. Stertz v. Indus. Ins. Comm’n, 91 Wash. 588, 590-91, 158 P. 256 (1916). An

exception to employer immunity is for deliberate injury. RCW 51.24.020.

Thirty years ago, this court established the test for the deliberate injury exception:

an employer must have “actual knowledge that an injury was certain to occur and

willfully disregarded that knowledge.” Birklid v. Boeing Co., 127 Wn.2d 853, 865, 904

P.2d 278 (1995). We applied this test in Walston v. Boeing Co., 181Wn.2d 391, 398-99,

334 P.3d 519 (2014), concluding that a plaintiff did not satisfy the exception because

asbestos is not certain to cause injury.

In spite of established precedent, the majority views asbestos claims as a matter of

first impression and allows Jeffrey Cockrum’s suit to proceed under the deliberate intent No. 102881-4 (Madsen, J., dissenting)

to injure exception. To reach this result, the majority takes the extraordinary step of

overruling Walston—which no party asked us to do—and adopts a test this court already

rejected in Birklid.

In my view, precedent is clear. Cockrum did not show that his employer, Howmet

Aerospace Inc., had actual knowledge that asbestos exposure would produce certain

injury. Therefore, summary judgment for Howmet was properly granted. The majority

dislikes this outcome. Nevertheless, it is the only outcome possible that preserves the

grand compromise. In over 100 years, the legislature has not amended the deliberate

injury exception. If that exception is to be broadened, it is the legislature that should do

so with public input and considered deliberation. I respectfully dissent.

1. Deliberate Intent Exception

The IIA is the “grand compromise” between the interests of employers and

workers injured on the job. Birklid, 127 Wn.2d at 859. The Act “was designed to be a

comprehensive and exclusive compensation system.” 16 DAVID K. DEWOLF & KELLER

W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 12:6, at 572 (5th ed

2020). While the statute was intended to be liberally construed in favor of coverage,

Dep’t of Lab. & Indus. v. Lyons Enters., Inc., 185 Wn.2d 721, 734, 374 P.3d 1097 (2016),

we interpret exceptions narrowly. See Vallandigham v. Clover Park Sch. Dist. No. 400,

154 Wn.2d 16, 27, 109 P.3d 805 (2005). The legislature did not grant immunity to

employers who injured employees intentionally. An employee may sue an employer in

2 No. 102881-4 (Madsen, J., dissenting)

tort if an “injury results to a worker from the deliberate intention of [their] employer to

produce such injury.” RCW 51.24.020.

Before 1995, Washington courts interpreted the deliberate intent exception to

apply only to intentional torts, that is, when an employer or agent committed an assault

on an employee. Birklid, 127 Wn.2d at 861-62 (citing Perry v. Beverage, 121 Wash. 652,

209 P. 1102 (1922), 214 P. 146 (1923); Mason v. Kenyon Zero Storage, 71 Wn. App. 5,

856 P.2d 410 (1993)). Even gross negligence did not satisfy the exception. Id. at 860

(quoting Delthony v. Standard Furniture Co., 119 Wash. 298, 300, 205 P. 379 (1922)).

Birklid noted that the focus on intentional torts “effectively read the statutory

exception . . . out of existence” and sought to provide a clearer articulation. Id. at 862.

First, Birklid examined iterations of the deliberate intent test from other states: the

“substantial certainty” line of cases in which an actor is substantially certain that a result

will occur from an act and still goes ahead, and the conscious weighing test in which an

employer weighed the consequences of an act and knew someone, not necessarily the

plaintiff specifically, would be injured. Id. at 864-65. 1 Birklid rejected these tests as too

1 These variations of the deliberate intent test were adopted in Michigan, North Carolina, West Virginia, Ohio, South Dakota, Louisiana, and Oregon. Beauchamp v. Dow Chem. Co., 427 Mich. 1, 4-5, 398 N.W.2d 882 (1986); Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991) (plurality opinion); Mandolidis v. Elkins Indus., Inc., 161 W. Va. 695, 246 S.E.2d 907 (1978) (plurality opinion); Blankenship v. Cincinnati Milacron Chems., Inc., 69 Ohio St. 2d 608, 433 N.E.2d 572 (1982); VerBouwens v. Hamm Woods Prods., 334 N.W.2d 874 (S.D. 1983), overruled in part by Holscher v. Valley Queen Cheese Factory, 2006 SD 35, 713 N.W.2d 555, 568 n.2; Bazley v. Tortorich, 397 So. 2d 475 (La. 1981); Lusk v. Monaco Motor Homes, Inc., 97 Or. App. 182, 775 P.2d 891 (1989).

3 No. 102881-4 (Madsen, J., dissenting)

“expansive” in light of Washington courts’ historically narrow reading of RCW

51.24.020. Id. at 864, 865.

Instead, Birklid formed a narrow test for determining deliberate injury: the

employer “had actual knowledge that an injury was certain to occur” and “willfully

disregarded that knowledge.” Id. at 865.

Applying this test, Birklid held that the plaintiffs’ deliberate injury suit overcame

summary judgment. The plaintiffs were employed by Boeing and were exposed to a

chemical resin. Before putting the resin into full production, Boeing conducted a

preliminary test. The employees exposed during the pretest complained of dizziness, dry

nose and throat, eye burning, and stomach upset. A supervisor notified Boeing

management of these results, cautioned that the problem would increase during

production, and requested improved ventilation. This request was denied. Once the resin

was used in full production, employees experienced dermatitis, rashes, nausea,

headaches, dizziness, and fainting. In light of this evidence, Birklid concluded that

Boeing knew in advance that its workers would become ill from the resin but went

forward with production resulting in injuries.

Birklid brought the deliberate intent exception beyond physical assault and into

chemical exposure cases, but most suits continued to reflect physical assaults. In

Vallandigham, a school’s employees asserted the deliberate intent exception based on the

district’s knowledge that a disabled student would injure them. 154 Wn.2d at 25-26.

Despite the school’s attempt to mitigate the situation, the employees produced evidence

4 No. 102881-4 (Madsen, J., dissenting)

that the student had committed 96 injuries over the school year and produced 7 workers’

compensation claims. Id. at 24.

This court held that the school employees had not satisfied Birklid. Vallandigham

explained that demonstrating an employer’s actual knowledge “can be met in only very

limited circumstances where continued injury is not only substantially certain, but certain

to occur.” Id. at 32. Foreseeability and probability that an injury would occur were

insufficient, as were the unpredictable actions of a child with disabilities. Id. at 33.

The Court of Appeals confronted what appears to be the first post-Birklid chemical

exposure case in Baker v. Schatz, 80 Wn. App. 775, 912 P.2d 501 (1996). There,

employees sued for exposure to toxic chemicals, relying on facts similar to Birklid:

breathing difficulties that developed into bronchitis and pneumonia, daily nausea,

headaches, dizziness, skin rashes, and fainting. The employees repeatedly complained to

their employer about these injuries, but the employer denied that the chemicals caused

any health problems. The trial court denied the employer’s motion for summary

judgment. The Court of Appeals reviewed Birklid and observed that the deliberate injury

exception requires employers to know “that injury was certain to occur.” Id. at 783

(emphasis added). The court concluded that the plaintiffs alleged facts supporting an

inference that the employer knew its employees were suffering from chemical-related

illness and continuing injury was certain. Like Birklid, the employer in Baker knew

exposure to chemicals “would cause and did cause injury.” Id. at 784.

5 No. 102881-4 (Madsen, J., dissenting)

Similar to Birklid and Baker, the Court of Appeals reaffirmed that chemical

exposure could constitute deliberate intent in Hope v. Larry’s Markets, 108 Wn. App.

185, 194, 29 P.3d 1268 (2001). In Hope, an employer began using industrial-strength

cleaners that could cause severe skin irritation and employees began experiencing rashes

and blisters. The injured employees complained several times, even providing a doctor’s

note stating that chemical exposure caused the severe rashes. The employer denied that

the chemicals were dangerous and required employees to use them, providing minimal

safety precautions. An employee sued under the deliberate intent to injure exception,

which the trial court dismissed. The Court of Appeals reviewed the dismissal as a

summary judgment motion and reversed, concluding that the employee’s evidence

showed repeated complaints that chemical exposure continuously caused injuries,

sufficiently establishing “‘actual knowledge that an injury was certain to occur.’” Id. at

193 (quoting Birklid, 127 Wn.2d at 865), 194.

The Court of Appeals directly addressed an asbestos deliberate intent claim in

Shellenbarger v. Longview Fibre Co., 125 Wn. App. 41, 103 P.3d 807 (2004). The court

affirmed summary judgment for the employer in this case. The employer was aware of

the dangers of asbestos during the 1960s when the complaining employee was exposed

and eventually developed lung disease and asbestosis. The Court of Appeals noted that

Birklid “adopted a literal meaning of ‘certain injury’ when it expressly declined to adopt

the ‘substantial certainty’ test used in some other states.” Id. at 47. Birklid requires

certainty, and “[c]ertainty leaves no room for chance.” Id. The court also observed that

6 No. 102881-4 (Madsen, J., dissenting)

exposure to asbestos does not always result in injury to every person and that other

employees at Longview Fibre did not exhibit signs of injury. Therefore, the Court of

Appeals held, a reasonable finder of fact could not conclude the employer knew the

complaining employee, or any other employee, would be injured by exposure to asbestos.

This court addressed an asbestos claim in Walston. There, a Boeing employee was

exposed to asbestos over many years, eventually developing mesothelioma. Experts

concluded that the disease was caused by an exposure incident where pipe insulation was

being repaired in the ceiling above the plaintiff’s work area. Though the insulation

workers wore personal protective equipment, the workers below did not. Boeing

supervisors denied employee requests to relocate and recommended employees avoid the

area below the ceiling repairs. Importantly, the plaintiff’s medical experts “conceded that

asbestos exposure is not certain to cause mesothelioma or any other disease.” Walston,

181 Wn.2d at 394.

Walston concluded that Boeing was entitled to summary judgment pursuant to this

court’s deliberate intent precedent. The Birklid test requires an employer to know that an

injury was “certain to occur.” 127 Wn.2d at 865. A probable or even substantially

certain injury is not sufficient to show deliberate intent, nor is disregard of a risk of

injury. Walston, 181 Wn.2d at 397 (quoting Vallandigham, 154 Wn.2d at 21, 36, 28).

Because asbestos exposure is not certain to cause mesothelioma or any other disease,

Walston concluded that the plaintiff did not raise an issue of material fact as to whether

Boeing actually knew injury was “certain to occur.” Id. at 397.

7 No. 102881-4 (Madsen, J., dissenting)

Further, Walston disagreed that deliberate intent is satisfied as long as evidence

shows someone, not necessarily the plaintiff, is certain to be injured. Birklid considered

that argument when it rejected Oregon’s conscious weighing test. Walston also clarified

that deliberate intent to injure does not require immediate and visible injury—it is simply

one way to raise an issue of material fact as to an employer’s knowledge of certain injury.

Finally, Walston disagreed that certain injury occurs based on cellular level injury

from asbestos, and even so, cellular injury without symptoms is not a compensable

injury. Compensable injury (mesothelioma, for example) is a risk but is not certain to

occur from asbestos exposure. Because certain injury is required pursuant to Birklid,

cellular injury does not meet the deliberate intent standard.

The dissent in Walston would have held that Birklid’s “certainty” requirement

“does not mean absolute certainty.” Id. at 403 (Wiggins, J., dissenting). The dissent

characterized Birklid as requiring proof that an employer had a “high degree of

confidence that injury would result.” Id. The majority’s interpretation, the dissent

asserted, would render the deliberate intent exception unavailable for diseases that the

IIA includes as an injury. Id. at 403-04 (citing RCW 51.24.030(3)). The dissent also

argued that “certainty can be achieved with less” than literal certainty that a specific

result would occur based on the difficulties of proving diseases stemming from chemical

exposure. Id. at 406. Instead, the dissent would have interpreted “certainty” to mean

“virtual certainty” that injury will occur. Id. at 410. Anything more stringent, the dissent

claimed, would allow an employer to escape liability contrary to the IIA. Id. at 411.

8 No. 102881-4 (Madsen, J., dissenting)

Taken together, Birklid and its progeny have maintained a narrow avenue for

injured workers to sue in tort under the deliberate intent exception. To prove actual

knowledge, an injury must be certain to occur. Birklid, 127 Wn.2d at 865; Shellenbarger,

125 Wn. App. at 47 (“The Washington Supreme Court adopted a literal meaning of

‘certain injury.’”). Probable injury or injury that is virtually or substantially certain is

insufficient. Walston, 181 Wn.2d at 397; Birklid, 127 Wn.2d at 865. Immediate visible

injury is not required but is one means of showing an employer had knowledge that

injury was certain to occur. Walston, 181 Wn.2d at 398.

Washington’s chemical exposure cases compel the outcome here. The facts of

Cockrum’s case are practically indistinguishable from Walston. Cockrum, like the

plaintiff in Walston, worked in an area where he was exposed to asbestos. Neither

Cockrum nor the employee in Walston was warned that asbestos was dangerous nor did

they wear protective equipment when working around the chemical. Both plaintiffs later

developed mesothelioma caused by workplace exposure to asbestos but did not exhibit

immediate injuries postexposure. Experts in both cases conceded that asbestos exposure

is not certain to cause mesothelioma or any other disease. Both employers were aware

that asbestos was hazardous.

In short, “[c]ertainty leaves no room for chance.” Shellenbarger, 125 Wn. App. at

46. Asbestos exposure does not result in disease in every person, thus it creates a

substantial risk of injury. Walston, 181 Wn.2d at 397. Birklid requires more, however.

Certain injury must occur. 127 Wn.2d at 864-65. The evidence presented in this case

9 No. 102881-4 (Madsen, J., dissenting)

shows that asbestos exposure risked injury, but it does not demonstrate that Howmet had

actual knowledge that injury was certain to occur. See Walston, 181 Wn.2d at 397;

Birklid, 127 Wn.2d at 864. 2

Legislative acquiescence further supports Walston’s interpretation of RCW

51.24.020. “When considering challenges to previous statutory interpretations, ‘[t]his

court presumes that the legislature is aware of judicial interpretations of its enactments

and takes its failure to amend a statute following a judicial decision interpreting that

statute to indicate legislative acquiescence in that decision.’” State v. Otton, 185 Wn.2d

673, 685-86, 374 P.3d 1108 (2016) (alteration in original) (quoting City of Federal Way

v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009)). While evidence of legislative

acquiescence is not conclusive, it is a factor to consider. Fast v. Kennewick Pub. Hosp.

Dist., 187 Wn.2d 27, 39-40, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v. Meyering,

102 Wn.2d 385, 392, 687 P.2d 195 (1984)).

From Perry and Delthony in 1922, to Birklid in 1995, and through Walston in

2014, the legislature has not amended RCW 51.24.020 in response to this court’s narrow

interpretation of the deliberate intent exception. Had Walston’s holding on asbestos-

related claims been contrary to the legislature’s intent, it is reasonable that lawmakers

would have changed the statute in response. That has not occurred. Therefore, as we

2 Though Cockrum contends that Howmet had evidence of its employees developing symptoms of nonmalignant asbestos-related disease, this does not prove actual knowledge that disease like cancer or mesothelioma would occur in exposed employees. The evidence of continuing illness shows Howmet knew that asbestos caused the risk of disease, not that it would result in a compensable injury to any of its employees.

10 No. 102881-4 (Madsen, J., dissenting)

recognized in State v. Blake, 197 Wn.2d 170, 174, 481 P.3d 521 (2021), given the

principles of legislative acquiescence and stare decisis, the legislature rather than the

court must change the statute’s intent.

Washington’s system recognizes the reality that employees who develop certain

diseases cannot sue in tort, but it also guarantees that workers will receive compensation

regardless of their employer’s fault. This certainty is the outcome of the grand

compromise made more than a century ago. Cockrum, like the plaintiff in Walston,

cannot demonstrate that Howmet had actual knowledge of certain injury pursuant to

RCW 51.24.020. Thus, summary judgment was appropriate.

2. Overruling Walston

As a procedural matter, only the State, acting as amicus curiae, contends that

Walston and Birklid should be abandoned. Br. of Amicus Curiae Dep’t of Lab. & Indus.

at 14-18. Appellate courts do not generally decide issues presented solely by amicus and

raised for the first time on appeal. State v. Duncan, 185 Wn.2d 430, 440, 374 P.3d 83

(2016); Maynard Inv. Co. v. McCann, 77 Wn.2d 616, 621, 465 P.2d 657 (1970)

(“Normally the rule is that an issue or theory not presented to the trial court will not be

considered by the Supreme Court for the first time on appeal.”); RAP 2.5(a). For that

reason alone, we should not reach the issue.

The majority would presumably answer that we have authority to address any

matter necessary to reach a proper decision. State v. Cantu, 156 Wn.2d 819, 822 n.1, 132

P.3d 725 (2006) (citing Siegler v. Kuhlman, 81 Wn.2d 448, 502 P.2d 1181 (1972)). But,

11 No. 102881-4 (Madsen, J., dissenting)

“arriving at a proper decision” demands more than just this court’s desire to revisit a

settled issue. As noted, overruling Walston was not raised at trial or in the Court of

Appeals. Nor did this court direct the parties to submit additional briefing to address the

issue, as we have often done. RAP 12.1(b); e.g., State v. Aho, 137 Wn.2d 736, 741, 975

P.2d 512 (1999); Greengo v. Pub. Emps. Mut. Ins. Co., 135 Wn.2d 799, 813, 959 P.2d

657 (1998); Siegler, 81 Wn.2d at 462 (Neill, J., dissenting). 3 I agree that this court has

inherent authority to reach any matter necessary for a just decision. I disagree with the

court’s decision to do so here considering the issue was raised for the first time in this

court by amicus and without direct input from the parties.

I also disagree with the majority’s decision to overturn Walston. Majority at 14-

18. This court does not set aside precedent lightly. State v. Kier, 164 Wn.2d 798, 804,

194 P.3d 212 (2008). Legal precedent must operate in a reasonably certain, consistent,

and predictable manner to allow citizens to guide their conduct and permit judges to

render their decisions with some measure of confidence. State v. Stalker, 152 Wn. App.

805, 810-11, 219 P.3d 722 (2009) (citing In re Pers. Restraint of Mercer, 108 Wn.2d 714,

720-21, 741 P.2d 559 (1987)). This, the doctrine of stare decisis, gives stability and

clarity in the law, ensuring that it will not be altered due to “‘incautious action or the

whims of current holders of judicial office.’” Id. at 811 (quoting Lunsford v. Saberhagen

3 We have recognized that there are occasions when an issue is purely legal and a legal violation is “so apparent” that additional briefing is unnecessary. Aho, 137 Wn.2d at 741. Whether to overturn a past decision is rarely apparent, and this court should be wary of wading into such complicated waters without the benefit of briefing from parties as well as amici that squarely addresses and robustly debates the issue.

12 No. 102881-4 (Madsen, J., dissenting)

Holdings, Inc., 166 Wn.2d 264, 278, 208 P.3d 1092 (2009)). Courts may change a rule of

law “‘“when reason so requires.”’” Mercer, 108 Wn.2d at 721 (quoting House v. Erwin,

81 Wn.2d 345, 348, 501 P.2d 1221 (1972), rev’d on reh’g, 83 Wn.2d 898, 524 P.2d 911

(1974) (quoting In re Rts. to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508

(1970))). The party seeking to overrule a case bears the burden of demonstrating that a

judicial decision is clearly “incorrect and harmful.” Id.

The majority concludes that Walston is clearly incorrect because it contradicts the

text of RCW 51.24.020 and the policy underlying the IIA. Majority at 14-15. To the

contrary—it is the majority’s assertion that is clearly without merit when considered in

light of the historic interpretation of RCW 51.24.020. Indeed, one would think the

legislature would have noticed the supposed contradiction sometime in the last 100-plus

years since our court’s initial construction in Perry and Delthony.

Moreover, we have “rejected invitations to overrule prior decisions based on

arguments that were adequately considered and rejected in the original decisions

themselves.” State v. Barber, 170 Wn.2d 854, 864-65, 248 P.3d 494 (2011) (citing Key

Design Inc. v. Moser, 138 Wn.2d 875, 883, 983 P.2d 653 (1999) (noting the various

complaints against the decision were “not new” and had already been “considered and

rejected”); Brower v. State, 137 Wn.2d 44, 75, 969 P.2d 42 (1998) (explaining that a case

is not lightly overturned where “the varying views on the issue [were] thoroughly

explored in the case”); Brutsche v. City of Kent, 164 Wn.2d 664, 682, 193 P.3d 110

13 No. 102881-4 (Madsen, J., dissenting)

(2008) (rejecting a challenge based on “the same arguments that were thoroughly

considered and decided” in the original case)).

This case does not present a new issue or one of first impression. See Brower, 137

Wn.2d at 74-75. Walston already addressed asbestos-related diseases pursuant to facts

practically indistinguishable from the present case and thoroughly explored the varying

views on the matter. See id. at 75. As noted above, Cockrum did not argue that Walston

is incorrect or harmful.

Rather than reject Cockrum’s argument that Walston can be distinguished (it

cannot), the majority accepts amicus’s invitation to overturn the case and adopts a

“virtual certainty” test, which can only have been taken from the Walston dissent. 181

Wn.2d at 410 (Wiggins, J., dissenting) (“An intentional wrong must amount to a virtual

certainty that bodily injury or death will result.”); majority at 19 (“We hold that virtual

certainty is sufficient to prove actual knowledge in latent disease cases.”). The court was

already presented with the opportunity to adopt the virtual certainty test in Walston. It

declined.

Further confusing matters, the Walston dissent declared that Birklid accommodates

virtual certainty and at the same time recognized that it is encompassed by substantial

certainty, which Birklid rejected. 181 Wn.2d at 406 n.5 (citing Van Dunk v. Reckson

Assocs. Realty Corp., 210 N.J. 449, 460-61, 45 A.3d 965 (2012) (substantial certain

standard requires a virtual certainty)); Birklid, 127 Wn.2d at 865 (“We decline to adopt

14 No. 102881-4 (Madsen, J., dissenting)

the ‘substantial certainty’ test.”). In adopting the virtual certainty test, 4 the majority

conflicts with Birklid and reads in a special exception to the exception—literal certainty

is still required for all other claims but only virtual certainty for latent disease. See

majority at 3. The majority hamstrings future courts and litigants, forcing them into a

quixotic choice: follow Birklid, which rejected the substantial/virtual certainty test, or

follow the majority’s virtual certainty test and consider Birklid overruled sub silentio.

See Lunsford, 166 Wn.2d at 280 (“Where we have expressed a clear rule of law . . . we

will not—and should not—overrule it sub silentio.”).

Further, Walston is not inconsistent with the text of the IIA. See majority at 15.

The majority takes issue with Walston for adding words to RCW 51.24.020 because the

term “certainty” does not appear in the statute. Id. at 15, 17. This objection must be

made to Birklid as well, as it interpreted the deliberate intent exception to mean that an

employer must have actual knowledge that injury was “certain to occur.” 127 Wn.2d at

865.

4 If the deliberate injury test was rooted in the common law, the majority’s decision to reimagine it would rest on firmer ground. Senear v. Daily J.-Am., 97 Wn.2d 148, 152, 641 P.2d 1180 (1982) (common law is shaped and refined by judges). A rule tested by experience and found lacking can be reformulated. Id. (“Common law is not static. It is consistent with reason and common sense . . . ‘Its principles are not mere printed fiats, but are living tools to be used in solving emergent problems.’” (quoting Mills v. Orcas Power & Light Co., 56 Wn.2d 807, 819, 355 P.2d 781 (1960))). This case is governed by statute, not common law. The issue has been acted on by the legislature, and we have interpreted that legislative enactment. RCW 51.24.020; Walston, 181 Wn.2d at 397-98; Birklid, 127 Wn.2d at 865. Our discretion to reexamine and reformulate the deliberate injury test in light of today’s facts is contrary to the principle of stare decisis. See Stalker, 152 Wn. App. at 811. “‘[R]espect for precedence is strongest in the area of statutory construction.’” Deggs v. Asbestos Corp. Ltd., 186 Wn.2d 716, 730, 381 P.3d 32 (2016) (internal quotation marks omitted) (quoting Hubbard v. United States, 514 U.S. 695, 711, 115 S. Ct. 1754, 131 L. Ed. 2d 779 (1995) (plurality opinion)).

15 No. 102881-4 (Madsen, J., dissenting)

The majority builds on this objection. Walston concluded that “asbestos exposure

is not certain to cause mesothelioma or any other disease”; then, according to the

majority, all workplace-caused diseases are excluded from the deliberate intent exception.

181 Wn.2d at 394; majority at 15. But Walston did not make such a broad holding,

expressly or by implication. That case concerned solely asbestos-related diseases.

Though its application of Birklid’s certainty test to toxic exposures undoubtedly makes

such claims more difficult to prove, that does not mean workplace-caused diseases are

foreclosed categorically. See majority at 16, 19. As the Court of Appeals observed,

coverage of “an ailment does not imply a particular amenability to its being deliberately

caused, or proven to be deliberately caused.” Cockrum v. C.H. Murphy/Clerk-Ullman,

Inc., No. 85182-9-I, slip op. at 7 (Wash. Ct. App. Feb. 12, 2024) (unpublished),

https://www.courts.wa.gov/opinions/pdf/851829.pdf. 5

Nor does Walston undermine the policy of the IIA. Majority at 17. The IIA

resolved competing interests in workplace tort suits. Employees receive swift, no-fault

compensation for workplace injuries in exchange for employer immunity, except for

injuries that were deliberately intended. Birklid, 127 Wn.2d at 859. The policy

motivating the exception has “sound roots.” Id. Employers who engage in egregious

5 The majority acknowledges that abandoning a prior decision rests on a clear showing that it is incorrect and harmful. Majority at 14. Yet the majority’s reasoning is replete with equivocal language. E.g., id. at 14 (stating that Walston “seemed to indicate” it was possible that asbestos claims could satisfy the deliberate intent exception, but it now “seems” impossible (emphasis added)), 16 (“[T]he IIA does not seem to support that apparently categorical conclusion.” (emphasis added)). Such uncertain language is far from a clear showing.

16 No. 102881-4 (Madsen, J., dissenting)

conduct such as deliberately intending to injure their workers should not burden and

compromise the industrial insurance risk pool. Id. Birklid continued Washington’s

historically narrow interpretation of the deliberate intent exception. Id. at 859-60, 865.

Walston applied Birklid, narrowing the exception’s application to certain diseases. It is

the majority’s decision here that upsets this balance, undermining Birklid and the grand

compromise itself.

I disagree with the majority’s expansion of the deliberate intent exception based

solely on its desire to revisit and overrule Walston, particularly when no party has asked

us to do so. We should instead follow established precedent. Cockrum’s case is

materially indistinguishable from Walston. The evidence shows that asbestos does not

result in injurious disease to every exposed person. Asbestos-related diseases are a risk,

but not certain to occur, as Walston and Birklid require. We should therefore conclude

that Cockrum does not satisfy the actual knowledge requirement of the exemption and

affirm the Court of Appeals. However reluctant we may be to uphold the sometimes

harsh reality of our workers’ compensation system, that is the grand compromise.

Altering that bargain is a matter for the legislature, not this court. With these

considerations in mind, I respectfully dissent.

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