IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN M. KALAHAR and PEGGY L. KALAHAR, husband and wife, No. 72635-8-1
Appellants, DIVISION ONE
UNPUBLISHED OPINION
ALCOA, INC.,
Respondents tj-jr- —. —)C CERTAINTEED CORPORATION; en
3* •-VM t ' '" HANSON PERMANENTE CEMENT, INC., C~3 CD -.
f/k/a KAISER CEMENT CORPORATION; no ' ' ^ 4T- KAISER GYPSUM COMPANYJNC; X» con PFIZER INC.; RILEY POWER, INC., f/k/a IX ;£*-" RILEY STOKER CORP., f/k/a BABCOCK o cn'^~ BORSIG POWER, INC., f/k/a D.B. RILEY, -p- o — cn INC.; SABERHAGEN HOLDINGS, INC.; and UNION CARBIDE CORPORATION,
Defendants. FILED: August 24, 2015
Appelwick, J. — The Kalahars appeal the summary judgment dismissal of their
personal injury action against Alcoa. Kalahar and his wife sued Alcoa claiming that
Kalahar's mesothelioma was caused by asbestos exposure during his employment at an
Alcoa plant. Because RCW 51.04.010 provides employers immunity from civil suits by
workers for injuries on the job, the Kalahars brought suit under the intentional injury
exception outlined in RCW 51.24.020. The trial court dismissed the Kalahars' action No. 72635-8-1/2
reasoning that Alcoa did not have actual knowledge that injury was certain to occur as
required by the intentional injury exception. We affirm.
FACTS
John Kalahar worked various jobs at the Alcoa "Wenatchee Works" plant in
Wenatchee, Washington from March 1963 to September 1963 and from March 1964 to
April 1971. Wenatchee Works was an aluminum smelter where raw alumina ore was
converted into molten aluminum. At the plant, alumina ore was placed into large pots and
high levels of electricity were used to separate the aluminum molecules from the alumina
ore.
Kalahar first worked as a trainee in "potrooms" at the plant. A separate team of
"potliners" would periodically "dig out" spent pots and reline them while Kalahar was
nearby. There was asbestos in the materials used to line the pots where the molten
aluminum was created. Kalahar also worked near the machine shop around machinists
who would cut Marinite boards creating dust with asbestos particles. Kalahar's position
in the machine shop as a sheet metal apprentice required him to cut asbestos-containing
cloth himself. As a result of working around the dust from the Marinite in the machine
shop, Kalahar would often sneeze and blow his nose. When he worked as a sheet metal
apprentice he would get an itchy sensation in his face. At the time Kalahar worked at the
plant, Alcoa was aware of the health risks of asbestos exposure and that exposure could
result in asbestosis and lung cancer.
In January 2014, Kalahar was diagnosed with mesothelioma, a cancer primarily
associated with asbestos exposure. Kalahar and his wife filed a complaint against Alcoa
for personal injuries. On September 25, 2014, Alcoa filed a motion for summary No. 72635-8-1/3
judgment. It asserted that the Kalahars' claims against it are barred by the exclusive
remedy of the Washington Industrial Insurance Act (WIIA)—RCW 51.04.010. Alcoa
asserted that the Kalahars' claims were barred unless they could demonstrate Kalahar's
mesothelioma was caused by the deliberate intention of Alcoa to produce such injury—a
narrow exception to RCW 51.04.010 outlined in RCW 51.24.020. It argued that under
Washington case law, the Kalahars had to provide evidence that (1) Alcoa had actual
knowledge Kalahar was certain to develop mesothelioma and (2) that it willfully
disregarded that knowledge. In arguing that the Kalahars could not provide evidence
satisfying the deliberate intention exception, Alcoa relied heavily on the Kalahars' expert's
deposition testimony that asbestos exposure is never certain to cause mesothelioma or
any injury.
The trial court agreed with Alcoa and concluded that under the Washington
Supreme Court's recent decision in Walstonv. Boeing Co., 181 Wn.2d 391, 334 P.3d 519
(2014), the Kalahars failed to satisfy the deliberate intention exception. Consequently, it
granted Alcoa's motion for summary judgment. The Kalahars appeal.
DISCUSSION
This court reviews summary judgment orders de novo. Hadlev 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). No. 72635-8-1/4
The WIIA was the product of a "grand compromise" in 1911. Birklid v. Boeing Co.,
127 Wn.2d 853, 859, 904 P.2d 278 (1995). Injured workers were given a swift, no-fault
compensation system for injuries on the job and employers were given immunity from civil
suits by workers. ]d_. But, employers who deliberately injured their employees would not
enjoy the immunity from suit under RCW 51.24.020's deliberate intention exception, jd.
RCW 51.24.020 states:
If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.
In 1995, in Birklid. the Washington Supreme Court examined earlier intentional
injury exception cases. 127 Wn.2d at 862. It noted that previous courts interpreted RCW
51.24.020 as providing an exception for only cases of assault and battery by the employer
against the employee. Id. Itconcluded that the statutory words "deliberate intention ... to
produce such injury" must mean more than assault and battery. Id. at 862-63.
Consequently, it set out to define "deliberate intention" in RCW 51.24.020. See id at 865.
The Birklid court held that "deliberate intention" means (1) the employer had actual
knowledge that an injury was certain to occur and (2) willfully disregarded that knowledge.
Id at 865; see ajso Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 27-
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
JOHN M. KALAHAR and PEGGY L. KALAHAR, husband and wife, No. 72635-8-1
Appellants, DIVISION ONE
UNPUBLISHED OPINION
ALCOA, INC.,
Respondents tj-jr- —. —)C CERTAINTEED CORPORATION; en
3* •-VM t ' '" HANSON PERMANENTE CEMENT, INC., C~3 CD -.
f/k/a KAISER CEMENT CORPORATION; no ' ' ^ 4T- KAISER GYPSUM COMPANYJNC; X» con PFIZER INC.; RILEY POWER, INC., f/k/a IX ;£*-" RILEY STOKER CORP., f/k/a BABCOCK o cn'^~ BORSIG POWER, INC., f/k/a D.B. RILEY, -p- o — cn INC.; SABERHAGEN HOLDINGS, INC.; and UNION CARBIDE CORPORATION,
Defendants. FILED: August 24, 2015
Appelwick, J. — The Kalahars appeal the summary judgment dismissal of their
personal injury action against Alcoa. Kalahar and his wife sued Alcoa claiming that
Kalahar's mesothelioma was caused by asbestos exposure during his employment at an
Alcoa plant. Because RCW 51.04.010 provides employers immunity from civil suits by
workers for injuries on the job, the Kalahars brought suit under the intentional injury
exception outlined in RCW 51.24.020. The trial court dismissed the Kalahars' action No. 72635-8-1/2
reasoning that Alcoa did not have actual knowledge that injury was certain to occur as
required by the intentional injury exception. We affirm.
FACTS
John Kalahar worked various jobs at the Alcoa "Wenatchee Works" plant in
Wenatchee, Washington from March 1963 to September 1963 and from March 1964 to
April 1971. Wenatchee Works was an aluminum smelter where raw alumina ore was
converted into molten aluminum. At the plant, alumina ore was placed into large pots and
high levels of electricity were used to separate the aluminum molecules from the alumina
ore.
Kalahar first worked as a trainee in "potrooms" at the plant. A separate team of
"potliners" would periodically "dig out" spent pots and reline them while Kalahar was
nearby. There was asbestos in the materials used to line the pots where the molten
aluminum was created. Kalahar also worked near the machine shop around machinists
who would cut Marinite boards creating dust with asbestos particles. Kalahar's position
in the machine shop as a sheet metal apprentice required him to cut asbestos-containing
cloth himself. As a result of working around the dust from the Marinite in the machine
shop, Kalahar would often sneeze and blow his nose. When he worked as a sheet metal
apprentice he would get an itchy sensation in his face. At the time Kalahar worked at the
plant, Alcoa was aware of the health risks of asbestos exposure and that exposure could
result in asbestosis and lung cancer.
In January 2014, Kalahar was diagnosed with mesothelioma, a cancer primarily
associated with asbestos exposure. Kalahar and his wife filed a complaint against Alcoa
for personal injuries. On September 25, 2014, Alcoa filed a motion for summary No. 72635-8-1/3
judgment. It asserted that the Kalahars' claims against it are barred by the exclusive
remedy of the Washington Industrial Insurance Act (WIIA)—RCW 51.04.010. Alcoa
asserted that the Kalahars' claims were barred unless they could demonstrate Kalahar's
mesothelioma was caused by the deliberate intention of Alcoa to produce such injury—a
narrow exception to RCW 51.04.010 outlined in RCW 51.24.020. It argued that under
Washington case law, the Kalahars had to provide evidence that (1) Alcoa had actual
knowledge Kalahar was certain to develop mesothelioma and (2) that it willfully
disregarded that knowledge. In arguing that the Kalahars could not provide evidence
satisfying the deliberate intention exception, Alcoa relied heavily on the Kalahars' expert's
deposition testimony that asbestos exposure is never certain to cause mesothelioma or
any injury.
The trial court agreed with Alcoa and concluded that under the Washington
Supreme Court's recent decision in Walstonv. Boeing Co., 181 Wn.2d 391, 334 P.3d 519
(2014), the Kalahars failed to satisfy the deliberate intention exception. Consequently, it
granted Alcoa's motion for summary judgment. The Kalahars appeal.
DISCUSSION
This court reviews summary judgment orders de novo. Hadlev 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). No. 72635-8-1/4
The WIIA was the product of a "grand compromise" in 1911. Birklid v. Boeing Co.,
127 Wn.2d 853, 859, 904 P.2d 278 (1995). Injured workers were given a swift, no-fault
compensation system for injuries on the job and employers were given immunity from civil
suits by workers. ]d_. But, employers who deliberately injured their employees would not
enjoy the immunity from suit under RCW 51.24.020's deliberate intention exception, jd.
RCW 51.24.020 states:
If injury results to a worker from the deliberate intention of his or her employer to produce such injury, the worker or beneficiary of the worker shall have the privilege to take under this title and also have cause of action against the employer as if this title had not been enacted, for any damages in excess of compensation and benefits paid or payable under this title.
In 1995, in Birklid. the Washington Supreme Court examined earlier intentional
injury exception cases. 127 Wn.2d at 862. It noted that previous courts interpreted RCW
51.24.020 as providing an exception for only cases of assault and battery by the employer
against the employee. Id. Itconcluded that the statutory words "deliberate intention ... to
produce such injury" must mean more than assault and battery. Id. at 862-63.
Consequently, it set out to define "deliberate intention" in RCW 51.24.020. See id at 865.
The Birklid court held that "deliberate intention" means (1) the employer had actual
knowledge that an injury was certain to occur and (2) willfully disregarded that knowledge.
Id at 865; see ajso Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 27-
28, 109 P.3d 805 (2005). Before adopting that narrow test, the Birklid court considered
and rejected broader tests from other jurisdictions. See id. at 864-65. The Washington
Supreme Court recently applied the standard outlined in Birklid in Walston. 181 Wn.2d at
396-97. No. 72635-8-1/5
Walston was exposed to asbestos while working at Boeing and was later
diagnosed with mesothelioma. jd at 393. Walston was exposed to asbestos throughout
his career with Boeing (from 1956 to 1995), but only one 1985 incident of asbestos
exposure was at issue, jd at 394. In 1985, maintenance workers began repairing pipe
insulation in the ceiling above the hammer shop where Walston worked, jd. The
maintenance workers wore protective clothing and ventilators, but the hammer shop
employees below did not. ]d The repairs caused visible dust and debris, and the
employees requested that they work in a different location during the pipe repair. Id
Their supervisor told them to go back to work in the hammer shop, but told them to avoid
working directly under the overhead repairs. jd
Walston was diagnosed with mesothelioma in 2010 and passed away in 2013. Id
Walston's estate sued Boeing claiming that Walston's disease was caused by the
asbestos exposure during his employment. Id at 395. One of the experts testifying on
behalf of the decedent stated that asbestos exposure is not certain to cause
mesothelioma or any other disease. ]d at 394.
Boeing did not dispute that it was aware in 1985 that asbestos was hazardous or
that the 1985 incident happened as described, jd at 395. Instead, it argued that it did
not have actual knowledge that Walston was certain to be injured and therefore it was
immune from suit under the WIIA. Id. Boeing moved for summary judgment, jd
The Walston court reasoned that as the expert acknowledged, asbestos exposure
is not certain to cause mesothelioma or any other disease, jd at 397. It continued that
even though asbestos exposure does cause a risk of disease that is insufficient to meet
the standard in Birklid. Id. It thus concluded that Walston's estate did not raise an issue No. 72635-8-1/6
of material fact as to whether Boeing had actual knowledge that injury was certain to
occur.1 Id.
Here, the trial court granted Alcoa summary judgment based on the Washington
Supreme Court's holding in Walston. The Kalahars argue that summary judgment was
improper, because Walston is distinguishable. They argue that in Walston there was no
evidence that Walston or any workers in his vicinity suffered immediate visible symptoms
from asbestos exposure. They claim that unlike in Walston, the Kalahars offered
evidence that Alcoa employees had visible symptoms and complained of those
symptoms.
The Kalahars attempt to distinguish Walston based on their evidence of Kalahar's
contemporaneous physical symptoms claiming that none existed in Walston. But, the
Walston court ultimately reached its conclusion by reasoning that asbestos exposure is
not certain to cause mesothelioma or any other disease—not because Walston failed to
provide evidence of physical injury—contemporaneous or delayed. 181 Wn.2d at 397
("[Asbestos exposure] does cause a risk of disease, but as we have previously held, that
is insufficient to meet the Birklid standard."). Like the expert in Walston, the Kalahars'
expert admitted that asbestos exposure, at any level, is never certain to cause
mesothelioma or any other disease. We are bound by the Supreme Court's decision in
Walston. Therefore, we conclude that the Kalahars have not raised a genuine issue of
1 The Kalahars argue that the effect of the Walston court's application of the first prong of the Birklid test removes occupational diseases from the intentional injury exception to the WIIA altogether. They contend this is so, because no employee could ever prove that his or her employer knew with certainty that the employee would suffer an injury in the form of disease several years later. We can respond only that both Walston and Birklid are Washington Supreme Court decisions, and the legislature has not taken issue with either decision. No. 72635-8-1/7
material fact as to whether Alcoa had actual knowledge that the injury—mesothelioma-
was certain to occur.
We affirm.
WE CONCUR:
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