Jeffrey L. Cockrum, Et Ano, V. C.h. Murphy/clark-ullman, Inc.

• Court: Court of Appeals of Washington
• Decided: February 12, 2024
• Docket: 85182-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JEFFREY L. COCKRUM and DONNA COCKRUM, husband and wife, No. 85182-9-I

Appellants, DIVISION ONE

v. UNPUBLISHED OPINION

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, INC.; and UNION CARBIDE CORPORATION,

Defendants,

HOWMET AEROSPACE, INC., f/k/a ARCONIC INC., as a corporate successor to ALCOA, INC.,

Respondent.

BIRK, J. — Jeffrey and Donna Cockrum appeal the summary judgment

dismissal of their personal injury action against Howmet Aerospace, Inc.1 The

Cockrums sued Howmet claiming that Jeffrey Cockrum’s mesothelioma was

caused by asbestos exposure during his employment at an Alcoa plant. RCW

51.04.010 provides employers immunity from civil suits by workers for workplace

1 Howmet Aerospace, Inc., was formerly known as Arconic, Inc., which was

formerly known as Alcoa, Inc. We will refer to “Howmet” as the respondent and “Alcoa” as Cockrum’s employer. No. 85182-9-I/2

injuries, but the Cockrums rely on the deliberate injury exception of RCW

51.24.020. The trial court dismissed the Cockrums’ action, concluding there was

no genuine issue of material fact as to whether Howmet had actual knowledge that

injury was certain to occur. We affirm.

I

Cockrum worked for Alcoa, Inc. at Alcoa Wenatchee Works between 1966

and 1999. Wenatchee Works was an aluminum smelter where raw alumina ore

was converted into molten aluminum. Cockrum first worked in the “potrooms” at

the plant. His job duties included sampling the pots and “potlining,” which entailed

lining empty pots with insulation before ore would be added and melted down. In

1969, Cockrum transitioned to working in Alcoa’s laboratories. In the quantometer

lab, Cockrum was tasked with analyzing “the metal that came out of the pots as a

raw material, and then when it went into the furnaces, to make sure that the metal

was on-grade for customer specifications.” Later, while working in the

environmental lab, he tested samples for asbestos from the insulation material and

from the material brought up from the ingot plant. To test the samples, Cockrum

would take “a piece of the sample, put it into a beaker” and “add[] acid to it. When

it changed colors, it gave me result of whether asbestos was present or not.” He

would then “put it back into the bag, zip[] it up, and call[] them to tell them to come

take it away.”

In March 2022, Cockrum was diagnosed with mesothelioma, a lung disease

caused by asbestos exposure. Cockrum and his wife filed a complaint against

Howmet for personal injuries. Howmet moved for summary judgment, asserting

2 No. 85182-9-I/3

the Cockrums’ claims against it were barred by RCW 51.04.010 of the Washington

Industrial Insurance Act (IIA),Title 51 RCW. In arguing that the Cockrums could

not provide evidence satisfying the deliberate intention exception, Howmet relied

on the Cockrums’ expert’s deposition testimony that asbestos exposure is never

certain to cause mesothelioma or any other disease.

The trial court concluded that under Walston v. Boeing Co., 181 Wn.2d 391,

395, 334 P.3d 519 (2014), the Cockrums failed to satisfy the deliberate intention

exception. The trial court granted Howmet’s motion for summary judgment. The

Cockrums appeal.

II

This court reviews summary judgment orders de novo. Hadley v. Maxwell,

144 Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate

only where there are no genuine issues of material fact and the moving party is

entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn.

App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, the court

draws reasonable inferences in the light most favorable to the nonmoving party.

Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

The IIA established a system for workplace related injuries that gave

employers immunity from civil suits in return for giving injured workers “a swift, no-

fault compensation system for injuries on the job.” Birklid v. Boeing Co., 127 Wn.2d

853, 859, 904 P.2d 278 (1995). The IIA does not exempt employers from claims

by an employee for injuries resulting “from the deliberate intention of his or her

employer to produce such injury.” RCW 51.24.020.

3 No. 85182-9-I/4

Birklid held “deliberate intention” means (1) “the employer had actual

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

disregarded that knowledge.” 127 Wn.2d at 864. “Neither gross negligence” nor

“an act that has a substantial certainty of producing injury [are] sufficient to show

deliberate intention.” Id. at 860. Birklid rejected standards under which a claim

would be permitted if the employer knew injury was “ ‘substantially certain’ ” to

occur, id. at 864-65 (quoting Beauchamp v. Dow Chem. Co., 427 Mich. 1, 21-22,

398 N.W.2d 882 (1986)), or which focused on “whether 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.” Birklid, 127

Wn.2d at 865 (citing Lusk v. Monaco Motor Homes, Inc., 97 Or. App. 182, 775 P.2d

891 (1989)).

Birklid arose out of Boeing’s use of phenol-formaldehyde resin at a

fabrication facility in 1987. Id. at 856. A general supervisor wrote that the resin

caused “ ‘dizziness, dryness in nose and throat, burning eyes, and upset

stomach’ ” in employees and the general supervisor “ ‘anticipate[d] this problem to

increase as temperatures rise and production increases.’ ” Id. Boeing declined to

improve ventilation. Id. When full production began, “workers experienced

dermatitis, rashes, nausea, headaches, and dizziness.” Id. Boeing’s general

manager said “he knew these complaints were reactions to working with the

phenolic material.” Id. Birklid concluded that Boeing knew in advance its workers

would become ill, yet put the chemicals into production anyway. Id. at 863. The

4 No. 85182-9-I/5

facts were sufficient for a jury to find that Boeing had actual knowledge that injury

was certain to occur. See id. at 865-66.

Walston applied Birklid in an asbestos case. Walston, 181 Wn.2d at 393.

Walston sued Boeing, claiming that his mesothelioma was caused by his exposure

to asbestos while employed by the company. Id. at 394-95. Although Walston

alleged he was exposed to asbestos throughout his career at Boeing, he pointed

to a specific exposure in 1985. Id. at 394. That year, maintenance workers

rewrapped overhead pipes to contain flaking asbestos insulations. Id. Walston

and other employees continued to work below. Id. The repairs created visible dust

and debris. Id. Walston’s request to work in a different location during the pipe

repair was denied, but a supervisor recommended he avoid working directly

underneath the overhead repairs. Id. He was diagnosed with mesothelioma in

2010. Id. Walston alleged Boeing deliberately intended to cause his injuries when

it exposed him to asbestos during this repair work. Id. at 395. One of Walston’s

experts “conceded that asbestos exposure is not certain to cause mesothelioma

or any other disease.” Id. at 394. Boeing did not dispute that it was aware that

asbestos was a hazardous material in 1985. Id. Instead, it argued it did not have

actual knowledge that Walston was certain to be injured. Id.

The Supreme Court agreed, holding in that context “[a]n act that has

substantial certainty of producing injury is insufficient to meet” the “ ‘deliberate

intention’ standard.” Id. at 396-97. The court noted Walston had no evidence (as

the Birklid plaintiff did) that Boeing had actual knowledge of injury because it did

not observe immediate and visible injury due to asbestos exposure. Walston, 181

5 No. 85182-9-I/6

Wn.2d at 398. The court held that because “asbestos exposure is not certain to

cause mesothelioma or any other disease” and because it causes only “a risk of

disease,” Walston did not meet the Birklid standard. Id. at 397. At the same time,

the court explained that establishing observed immediate and visible injury was

not necessarily the only way to show deliberate intention:

The Court of Appeals explained that immediate and visible injury is one way to raise an issue of material fact as to whether an employer had constructive knowledge that injury was certain to occur. Walston [v. Boeing Co.], 173 [Wn.] App [271,] 284, 294 P.3d 759 [2013]. The court noted that this was how the employees raised an issue of material fact in Birklid and other cases involving exposure to toxic chemicals. Id. Since immediate and visible injury was not present in this case, Walston could not use that to show that Boeing had knowledge of certain injury. However, the Court of Appeals did not hold that immediate and visible injury is the only way to show an employer's knowledge that injury was certain to occur.

Id. at 398.

Citing this paragraph, the Cockrums argue their evidence is distinguishable

from that presented in Walston, and equivalent to that in Birklid, because their

evidence shows Alcoa knew of “continuing illnesses among employees” currently

manifesting at the time of Cockrum’s asbestos exposure. The Cockrums’ evidence

is that between 1953 and 1982, Alcoa observed its employees contract asbestosis

and mesothelioma due to asbestos exposure. In 1953, Dr. Woodrow Murphy

examined an x-ray of an Alcoa employee and found “thickened pleura between the

right upper and middle lobes . . . and some fibrosis [in] each upper lung.” In 1972,

a former Alcoa employee filled out a worker’s compensation claim for asbestosis,

and related his injury to his work in the ingot plant at Alcoa. In 1979, Alcoa received

a letter from Dr. Theodore Fuller discussing the diagnosis of an Alcoa employee

6 No. 85182-9-I/7

who had been employed for the past 15 years. Dr. Fuller stated, “In view of his

history of exposure to asbestos, I think the odds are that this uni-lateral

asymptomatic pleural density is an early mesothelioma.” In 1982, Dr. Fuller again

sent a letter to Alcoa to diagnose another Alcoa employee. After learning the

patient was exposed to asbestos dust from his job at Alcoa, Dr. Fuller wrote,

“[T]here is no question but what these calcified pleural plaques represent a pleural

asbestosis.”

This evidence does not show that Alcoa had actual knowledge that

Cockrum was certain to be injured, but amounts at most to knowledge of the

hazardousness of asbestos that was present in Walston, and was insufficient. The

Cockrums argue this must be a faulty interpretation of the IIA, reasoning that their

expert testified that asbestos and carcinogens are never “certain” to cause

disease, yet such diseases, when related to the workplace, are included in the

definition of injury in RCW 51.24.030(3), and are subject to the same treatment as

injuries are under RCW 51.32.180. But the IIA’s covering an ailment does not

imply a particular amenability to its being deliberately caused, or proven to be

deliberately caused. The Cockrums’ evidence fails to rise above the evidence in

Walston, so summary judgment was appropriate.

III

Quoting Andrus v. Department of Transportation, 128 Wn. App 895, 900-

01, 117 P.3d 1152 (2005), Howmet argues RAP 18.9(a) sanctions are appropriate

because the Cockrums’ argument is “ ‘precluded by well-established and binding

precedent that [the appellant] does not distinguish.’ ” (Alteration in original.)

7 No. 85182-9-I/8

RAP 18.9(a) authorizes the appellate court to impose sanctions when a

party brings a frivolous appeal. An appeal is frivolous if, considering the entire

record, the court is convinced that the appeal presents no debatable issues upon

which reasonable minds might differ and that it is so devoid of merit that there is

no possibility of reversal. Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d

219 (2007). All doubts as to whether an appeal is frivolous are resolved in favor

of the appellant. Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980).

With doubts resolved in their favor, the Cockrums’ arguments are not frivolous.

We deny Howmet’s request for sanctions.

Affirmed.

WE CONCUR: