larger amounts of dust from previously-installed brake shoes and clutch assemblies.
This resulted in "[k]ind of a cloud from all the dust that was in—that was in the brake
shoes." CP at 861
Fagg produced evidence that Bendix brakes contained chrysotile asbestos until
at least 1985 and that Victor gaskets contained asbestos until 1988. He also submitted
a declaration by his expert, Charles Ay, which concluded, without quantifying the extent
of Fagg's alleged exposure to asbestos fibers from these products, that "the installation i
of the Bendix brakes and Victor gaskets caused the release of respirable asbestos
fibers into the air, and Mr. Fagg was injuriously exposed to respirable asbestos dust and
fibers as a result.'! CP at 373-374.
Fa;gg's Other Exposures to Asbestos-Containing Products
In addition to his exposure to PWWS and CSK products, Fagg acknowledged
extensive exposure to asbestos-containing products from other sources. From 1965-
1968, he served iji the navy as a machinist mate and was exposed on a daily basis to
asbestos from th^ gaskets and packing in pumps and valves that he repaired. As a part of his job, he cut away asbestos-containing insulation on steam lines and cut and
installed new asbestos-containing insulation. He was also present when boiler tenders
opened boilers and disturbed asbestos-containing refractory and insulation.
Fagg also worked for Sunshine Construction from 1963-1965, the two years
before he entereq the Navy, and again from 1968-1972 or 1973. During those years he
used an estimated 400 five gallon buckets of asbestos-containing drywall compound
manufactured by Kaiser Gypsum and sold to his employer by Dunn Lumber. No. 69719-6-1/7
After leaving Sunshine Construction in 1972 or 1973, Fagg went to work as an
equipment operator for the King County road department, where he stayed approximately seyen years. In that job he took equipment, case backhoes and
caterpillar graders, to the repair facility at least once a week. Once in the facility, he was
in close proximity to mechanics as they serviced the asbestos-containing brakes on the
equipment, grinding and sanding the brakes to fit, and using compressed air to blow out
the brake dust.
Lastly, beginning in the early 1980s, Fagg would spend three months of each
year visiting the L|bby and Troy, Montana area; he lived in Troy year round from 2001 until 2007. Over the past several decades, hundreds of residents of Libby and the
neighboring town of Troy have died and over 1,700 residents have been sickened as a
result of asbestos contamination from W.R. Grace & Co.'s vermiculite mine.3 In 1999,
shortly before Fagg moved to Troy, the Environmental Protection Agency (EPA) began
cleanup efforts in the area. At the time, the measurable asbestos fiber level in the
ambient air in Libby was 10,000 times greater than in 2009, and asbestos fibers were present in "garden soil" "driveway materials," and playgrounds. See Libbv Major
Milestones, U.S. Protection Agency, http://www2.epa.gov/reoion8/libbv-maior-
milestones (last undated Mar. 16, 2014); see also, Andrew Schneider, Uncivil Action: A Town Left To Die , Seattle Post-Intelligencer, Nov. 18,1999 (reporting that by 1975,
"half a million pounds of asbestos a day were processed" in the mine, leading to "5,000
3 PWWS notes that we may take judicial notice of the asbestos contamination and EPAefforts in the Libby area under ER 201(b) because evidence of the contamination is in the public record. Fagg does not challenge the coiirt's notice of this fact. No. 69719-6-1/8
Ibs./day of asbestos" dust expelled per day). Libby was placed on the EPA's superfund
list in 2002 and was declared a "Public Health Emergency" in 2009.
DISCUSSION
We review the trial court's entry of summary judgment de novo. Ranger Ins. Co.
v. Pierce County, *164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summary judgment is proper if, viewing the facts and inferences in favor of the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter
of law. ]d.; CR 56(c). Where liability depends upon a mixed question of fact and law,
and the facts are disputed, a motion for summary judgment should be denied. Rathvon
v. Columbia Pac. Airlines. 30 Wn. App. 193, 633 P.2d 122 (1981).
Applicability of the WPLA
Products liability cases in Washington are governed by the WPLA. The statute
immunizes product sellers from product liability claims except under certain enumerated
circumstances. It provides in relevant part:
(1) Except as provided in subsection (2) of this section, a product seller other thana manufacturer is liable to the claimant only if the claimant's harm was proximately caused by: (a) The negligence of such product seller; or (b) Bregch of an express warranty made by such product seller; or (c) The intentional misrepresentation of facts about the product by such product seller or the intentional concealment of information about the product by such product seller.
RCW 7.72.040(1). The WPLA supplants common law claims or actions based on harm
caused by a product that arise on or after its effective date, July 26, 1981. Macias v.
Saberhagen Holdings, Inc., 175 Wn.2d 402, 408, 282 P.3d 1069 (2012) (citations
omitted). Insofar as a negligence claim is product based, the negligence theory is
subsumed within the WPLA product liability claim. Jd. (Citations omitted).
8 No. 69719-6-1/9
When a plaintiff's alleged exposure to injury-causing products is prolonged or
continuous in nature, as in the present case, Washington courts consider when
"substantially all" pf the exposure occurred in determining when the claim arises.
Macias, 175 Wn.2d at 408-09; Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 381 n.
1, 4, 198 P.3d 493 (2008); Koker v. Armstrong, 60 Wn. App. 466, 472 n.4, 804 P.2d 659
(1991). The parties agree the WPLA applies unless "substantially all" of the exposure
occurred before July 26, 1981.4 There is also no dispute that ifthe WPLA applies, the
respondents are irjimune from suit and Fagg's claims against them were properly
dismissed.
Under the l^/lodel Business Corporation Act, the term "substantially all" was intended to mean "nearly all." See Model Bus. Corp. Act § 12.01 cmt. 1 (1984). Other
jurisdictions have accorded the term similar meaning. See e.g., Ice Service Co., Inc. v.
Comm'r of Internal Revenue, 30 F.2d 230, 230 (2d Cir. 1929) (holding that substantially
all, in the context bf when two corporations are affiliated for tax purposes, means all
except "a negligib e minority" or when a "practically negligible" amount remains); Hook
v. Astrue, 2010 WL 2929562, *4 (N.D. Ohio July 9, 2010) (holding, in the context of
"This approach is consistent with our caselaw. In Koker, 60 Wn. App. at 472, Viereck, 81 Wn. App. 579, 584-85, 91 5 P.2d 581 (1996), and Krivanek v. Fibreboard Corp.. 72 Wn. App. 632, 635, 865 P.2d 527 (1993), we held the WPLA did not apply because substantially all of the plaintiffs' exposures to asbestos occurred bqfore enactment of the statute. Likewise, in Braaten, the Supreme Court "noted that the exposure to asbestos products 'substantially occurred before the enactment' of the WPLA.... [and] decided the case under common product liability and negligence law." Macias, 175 Wn.2d at 408 (citing Braaten. 165Wn.2d qt383 n.4). In Macias, the Court expressed the test for applicability of the WPLA somewhat differently, holding that the WPLA barred the claims in that case where substantially all the plaintiffs exposure to asbestos occurred after enactment of the statute. Macias at 408-09. We do not perceive this to be a ifneaningful distinction because under the facts of Macias it is evident that, consistent with the cited precedent, substantially all of the plaintiffs exposure did not occur before the effective date of the WPLA. Moreover, the Macias Court expressly stated that its holding was "[i]n accord with Koker, Viereck, and Braaten "Id. at409. No. 69719-6-1/10
social security disability analysis, that "substantially all means 'essentially all' as
opposed to 'in the main' or 'for the most part'").
In quantifying the term, courts have found "substantially all" to mean 85 percent
or more. Seee.g., Continental Can Co.. Inc. v. Chicago Truck Drivers. 916 F.2d 1154,
1158 (7th Cir. 1990) (assets in a pension fund); Central States Southeast & Southwest
Pension Fund v. Bellmont Trucking. Co.. 610 F. Supp. 1505, 1511 (N.D. Ind. 1985)
(employee contributions in a pension fund). Similarly, seventy-five percent and sixty-five
percent have been found not to be the equivalent of "substantially all." See §&, Theurer
v. Bd. of Review, |ndus. Com'n. 725 P.2d 1338 (Utah 1986) (assets acquired by dentist upon acquisition c-f practice); James v. McCoy Mfg. Co., 431 So.2d 1147, 1149 (Ala.
1983) (assets acquired by an employer from a former employer). For purposes of this
case, however, we need not decide whether to define "substantially all" by its plain
meaning or quantitatively because the outcome is the same under either definition.
As a threshold matter, the parties dispute what should be measured in
determining whether substantially all of Fagg's exposure occurred before enactment of
the WPLA. Fagg Argues that we should consider his total exposure to asbestos from any source and thjen determine whether substantially all of his exposure occurred before July 26, 1981.5 If so, and a respondent's product was a part of that exposure,
then Fagg urges us to conclude that the WPLA does not apply to that respondent.
5 Specifically he urges the court to consider all exposure during (1) his employment from 1963 through the late 1970s as a construction worker, naval machinist mate, and heavy equipment operator, which involved exposure to various asbestos-containing products; (2) personal automotive repair jobs between the 1950s and 1980s using products sold by CSK Auto; (3) work with transite pipe sold by PWWS over a period of approximately ten and a half years beginning in the late 1970s; and (4) his time vacationing and living near the Libby, Montana Superfund site from the 1980s to 2007.
10 No. 69719-6-1/11
Fagg analogizes the "substantially all" test for application of the WPLA to the
"substantial factor" causation test applied in toxic exposure cases. He argues that just
as a plaintiff need not "prove that a particular defendant's product was the sole cause of
the injury, only that it was present in the work environment when the exposure
occurred," neither should a plaintiff have to prove that substantially all of his or her
exposure to asbestos before July 26, 1981 was attributable to a particular defendant,
but only that the defendant's product made up a part of that exposure. Brief of Appellant at 32.
PWWS and CSK argue that we should measure a plaintiff's exposure to a
specific defendant's products and only ifsubstantially all of a plaintiffs exposure to that
defendant's product occurred before July 26, 1981 can we conclude that the WPLA
does not apply.6 We agree with respondents.
In Macias, 175 Wn.2d 402, the plaintiff sued various sellers of asbestos-
containing products, claiming he was exposed to their products in the naval shipyards
where he worked from 1978 to 2004.7 jd at 405. The Court found that the plaintiff's
claims as to somei of the defendant sellers arose under the WPLA because all or
substantially all of the plaintiff's exposure to those defendants' specific products
6Fagg arguels that the respondents are "judicially estopped" from making this argument because it contradicts the pos tion they took in the trial court. The claim is without merit for several reasons. First, PWWS argued for a pefendant-specific approach in its summary judgment motion below. CP at 102-03. And, although CSK Auto argued for an aggregate approach below, itdid so without the benefit of the Macias decision, whiph offered guidance on this issue. Lastly, we may affirm a grant of summary judgment on an issue not decided by the trial court provided that it is supported by the record and is within the pleadings ind proof. Plein v. Lackey. 149 Wn.2d 214, 222, 67 P.3d 1061 (2003). To the extent that the parties argue for a defendant-specific approach on appeal, they do so to provide a basis for this court to affirm the trial court based on the record in this case. We, therefore, consider the argument.
7The trial court considered this case when deciding PWWS's motion for summary judgment, but not CSK Auto's.
11 No. 69719-6-1/12
occurred after the effective date of the WPLA. \± at 408-09. The Court applied the
WPLA to the plaintiff's claim even though he was exposed to asbestos-containing
products sold by s^ome of the defendants for at least two years before the effective date of the statute. The Court specifically addressed the applicability of the WPLA to three of
the defendants, stating:
The record indicates that Macias maintained and cleaned respirators manufactured by the Mine Safety Appliances Company and North America Safety Products USA only after June 1981. The WPLA clearly governs the claims against these defendants. With respect to American Optical Corporation, the WPLA applies, as explained, because substantially all of Mr. Macias's exposure to asbestos occurred after the effective date of the Act.
Ig\ at 409, n.2. In Concluding that the WPLA applied to these defendants, the Court
reiterated the rule that "a 'manufacturer's duty to warn is restricted to warnings based on
the characteristics of the manufacturer's own products'; "[t]he law generally does not i
require a manufacturer to study and analyze the products of others and warn users of
the risks ofthose products." Id. at 411, quoting Braaten, 165 Wn.2d at 385, citing American Law of Products Liability 3d §32:9 (John D. Hodson & Richard E. Kay eds.
2004); 63A Am.Jur.2d Products Liability §1127 (1997). Thus, for purposes of i determining whether a claim arises under the WPLA as to a specific defendant, the
determinative factor is when all or substantially all of the plaintiff's exposure to that
defendants' particular asbestos-containing products occurred. Simonetta y-Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008) and Braaten, 165 Wn.2d 373, are in accord. In Simonetta. a former navy machinist sued the manufacturer
of an evaporator, jjsed for desalinization ofsea water, alleging that the manufacturer was liable for the machinist's asbestos related disease; the machinist had been
12 No. 69719-6-1/13
exposed to asbestos insulation, which the navy had used to encapsulate the evaporator
and was manufactured by a third party. In Braaten, a former pipe fitter sued the manufacturers of various valves and pumps, alleging that they were liable for his
asbestos related disease; the pipe fitter had also been exposed to asbestos insulation,
manufactured by a third party and used by the navy to insulate the defendants'
products. In each sase, the Court focused on the asbestos-containing products that
were alleged to have caused the plaintiffs' injuries and whether those products were
manufactured by the defendants or were in the defendants' chain of distribution.
Concluding they were not, the Court held that the defendants had no duty to warn "of
the dangers of exposure to asbestos in products it did not manufacture and for which
the manufacturer Was not in the chain of distribution." Braaten, at 398.8
In light of Mjcias, Simonetta and Braaten, Fagg's contention that we take into
account all of his Exposure to asbestos from any source to determine when his claim
arose is untenable^. Whether the respondents owe Fagg a duty at all, the breach of which gives rise to his claim, depends on the products alleged to have caused Fagg's
injuries and whether those products were in the respondents' chain of distribution.
Under the controlling cases, to the extent Fagg's claimed injuries arise from products outside the respondents' "chain of distribution", no duty can be attributed to them.
Macias, 175 Wn.2d at 410-11. Thus, we conclude that the proper measure to determine
if Fagg's claims fa Is under the WPLA is whether all or substantially all his exposure to
the asbestos-containing products of each respondent occurred before July 26, 1981.
8 Simonetta and Braaten both involved manufacturer defendants, but the analysis regarding chain of distribution seems to us equally applicable to seller-defendants who are outside the chain of distribution of their co+defendants' products.
13 No. 69719-6-1/14
Applying the Analysis to PWWS and CSK
PWWS
Viewing the: evidence in the light most favorable to Fagg, he was exposed to
PWWS's transite beginning with his employment with C&D in 1979 and concluding with
his employment with the City of Kirkland in 1990. Considering only the years of Fagg's
exposure to transite, it is evident that less than twenty-five percent of this time is before
July 26, 1981. Thus, Fagg's pre-WPLA exposure to transite is sold by PWWS
insufficient to constitute "substantially all" of his exposure to that product. By this
measure, Fagg's claim against PWWS falls under the WPLA.
The result does not change when we consider the relative extent of exposure
during each year of employment. Fagg made approximately fifty cuts and bevels during
his time at C&D (1979-1980); seventy-five cuts and bevels to new pipe (the rest
involved pipe already in the ground from unknown sources), an average of fifteen per
year, at Lake Washington (1980-1985); and twenty-five cuts and bevels, an average of
five per year, at City of Kirkland (1980-1990). Of his approximately 150 total cuts and
bevels between 1979 and 1990, an average of fifty-nine cuts and bevels, or thirty-nine
percent, occurred before July 26, 1981. Because this amount cannot be considered
substantially all, the trial court properly concluded that Fagg's claims arose under the
WPLA and did not err in dismissing them. CSK
Fagg claims he was exposed to asbestos-containing auto parts purchased from
CSK on fourteen occasions beginning in the 1950s through the 1980s. Viewing the
evidence in the light most favorable to him, thirteen of those exposures occurred before
14 No. 69719-6-1/15
July 26, 1981: Fagg testified that seven occurred before 1981, five in the early 1980s,
and one in late 1970 or early 1980. Therefore, we conclude that because substantially
all of Fagg's exposure to CSK's asbestos-containing products occurred before July 26,
1981, the WPLA does not apply with respect to Fagg's claims against CSK. The trial
court erred in entering summary judgment for CSK on this ground.9
Affirm with Respect to PWWS. Reverse with respect to CSK.
WE CONCUR:
9 Although CSK also moved for summary judgment on grounds that Fagg failed to raise a disputed issue of fact regarding causation, the trial court did not rule on that issue and CSK did not brief the issue on appeal. Apcordingly, we do not reach that issue in our opinion.
i 15