Washington Supreme Court Declines to Review Case Seeking to Extend Liability to Employers for Workplace Injuries Arising Out of Exposure to Asbestos


On July 12, 2005, the Washington Supreme Court declined to review the Court of Appeal's decision in Shellenbarger v. Longview Fibre, 125 Wn. App. 41, 103 P.3d 807 (2004). In Shellenbarger, the Court of Appeals rejected an attempt to expand RCW 51.24.020, Washington's statutory deliberate intention exception to employer immunity from suit under the Washington Industrial Insurance Act, in two important respects. First, the court refused plaintiffs' request to expand employers' liability to "continually operative dangerous conditions." Second, the court also refused plaintiffs' invitation to apply the actual knowledge of certain injury test announced in Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995), to an occupational disease that manifested itself years after the workplace exposure allegedly occurred. Perkins Coie attorneys Bruce Campbell and Jim McCullagh defended Longview Fibre Company throughout all stages of this litigation. This update summarizes the arguments raised by the Shellenbarger plaintiffs in seeking to expand the deliberate intention exception to apply to latent injuries and provides practical guidance to employers on the current state of Washington law.

Gerald Shellenbarger worked as a paper maker for Longview Fibre from the 1960s through the 1990s. He was diagnosed with a pulmonary disease several years after retiring from Longview Fibre and alleged that this injury was caused by occupational exposure to asbestos at his former employer's facility. Shellenbarger filed a workers' compensation claim under Washington's Industrial Insurance Act, and also filed a civil lawsuit against Longview Fibre in which he alleged that Longview Fibre was liable under the deliberate intention exception as interpreted by the Washington Supreme Court in Birklid. In Birklid, the Washington Supreme Court determined that an employer is not immune from civil liability if it had actual knowledge of certain injury and willfully disregarded that knowledge.

Plaintiffs conducted extensive discovery that focused on all aspects of Longview Fibre's use of asbestos containing products, including the quantity, use, location, handling and remediation of asbestos at the company's Longview, Washington pulp and paper mill. In addition, the timing of Longview Fibre's knowledge of the hazards of asbestos, monitoring of work locations, reasons for transitioning to asbestos-free products, compliance with state and federal asbestos regulations, implementation of safety procedures, communications with employees and knowledge of other claims of asbestos injury were investigated.

The plaintiffs opposed Longview Fibre's motion for summary judgment by arguing that an inference of actual knowledge could be made from the quantity of asbestos products used by Longview Fibre and its receipt of generalized information regarding the then perceived health hazards of asbestos beginning in the mid to late 1960s. Plaintiffs also argued that Washington courts should extend Birklid and adopt Michigan's "continually operative dangerous condition" test. The Superior Court rejected plaintiffs' arguments.

On appeal to the Washington Court of Appeals, plaintiffs (1) renewed their request to adopt Michigan's more liberal interpretation of "actual knowledge of certain injury," (2) modified their factual arguments by focusing on a portion of deposition testimony from one of Longview Fibre's senior managers, and (3) argued that Birklid requires only that the employer know its employees are being exposed to a substance causing a reaction at the cellular level that has the potential of developing into a compensable injury. The Court of Appeals summarily refused plaintiffs' invitation to adopt Michigan law. The Court did not address plaintiffs' novel theory of subclinical injury in its written opinion. Instead, the Court affirmed the narrow circumstances in which Birklid applies by briefly reviewing previously decided Washington cases. In so doing, the Shellenbarger opinion adds to the growing body of Washington law that applies a narrow and literal reading to the Birklid "actual knowledge of certain injury" test.

For example, the Court of Appeals stated in Shellenbarger that the deliberate intent exception was intended by the Legislature to be very narrow and that a literal meaning should be given to the "certain injury" test, meaning that "[c]ertainty leaves no room for chance." The court noted that an employer's "[g]ross negligence and . . . failure to follow safety procedures is not enough to show deliberate intention" and that prior cases found an issue of fact only in situations "in which there was virtually no doubt injury would occur." Finally, the court noted that the relevant inquiry under Birklid "is not whether the employer knew it was performing a dangerous activity, but rather whether the employer knew of certain injury."

Practice Guidelines

The Shellenbarger opinion and the Supreme Court's denial of review of that case reinforces the recognition that Washington's deliberate intention exception is narrow. The Shellenbarger case also provides precedent for precluding plaintiffs from seeking to recover for latent injuries under RCW 51.24.020.

In general, courts will require evidence that the employer knew that injury was certain to occur at the time the employee was exposed to the condition that caused the injury. In past cases, employers' motions for summary judgment have been denied when it could be demonstrated that there was an issue of fact about whether the employer had knowledge of prior injuries to the same or other workers and yet failed to take steps to eliminate the hazard that was certain to produce such injuries. Once management is on notice of a past injury, the employer cannot willfully disregard the danger that is certain to produce future injuries. Under these circumstances, the employer should take action to evaluate the risk of future injury and correct any conditions that will lead to additional injuries.