¶ 1 The trial court granted summary judgment dismissing Thomas and Marjorie Montaney's claim against J-M Manufacturing (JMM) arising from Thomas's exposure to asbestos from pipe JMM sold. At the summary judgment hearing, evidence was presented that (1) Thomas Montaney was repeatedly exposed to asbestos dust while
¶ 2 In 2012, Thomas Montaney died of mesothelioma. Before his death, he and his wife filed an asbestos products liability lawsuit against nine defendants, including JMM.
¶ 3 Beginning in 1972, Montaney continually worked with A/C pipe in his career with the Cedar River Water and Sewer District.
¶ 4 Johns-Manville manufactured A/C "Transite" pipe for decades before it sold its pipe manufacturing operations in December 1982. JMM purchased Johns-Manville's PVC
¶ 5 JMM acknowledges that it sold A/C pipe under the trade name J-M Transite from January 1, 1983 until 1988. JMM conceded at oral argument that it may have sold the existing Johns-Manville A/C Transite pipe in stock as of January 1983, as well as A/C pipe manufactured by J-M A/C Pipe Corporation after January 1983. Pacific sold A/C pipe distributed by JMM.
¶ 6 Montaney was responsible for selecting and purchasing replacement pipe and supplies. He only had two sources for pipe. He either obtained leftovers from contractors or purchased new pipe, exclusively from Pacific. Montaney explained in his deposition that he only purchased or used A/C pipe made by two manufacturers, Johns-Manville and Certainteed. Montaney also testified that the water district kept an inventory of A/C pipe for repair jobs. Montaney's coworker Kirk Hunkeler confirmed in his deposition that the A/C pipe in the water district's inventory was all either Johns-Manville or Certainteed pipe.
¶ 7 JMM successfully moved for summary judgment dismissing Montaney's claim.
¶ 8 "Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law."
¶ 9 Asbestos plaintiffs in Washington may establish exposure to a defendant's product through direct or circumstantial evidence.
¶ 10 In Lockwood v. AC & S, Inc., our Supreme Court held that evidence supplied by the plaintiff's coworkers supported the inference that the defendant's product was used on a ship where Lockwood worked.
¶ 11 Applying the Lockwood standard, in Van Hout v. Celotex Corp., the court held that sufficient evidence supported the jury's verdict for an asbestos plaintiff, where the plaintiff testified that he worked in asbestos dust on ships, and witnesses placed the defendant's asbestos-containing insulation materials on those ships.
¶ 12 This court's opinion in Berry v. Crown Cork & Seal Co., Inc. is instructive as to the evidence necessary to survive a defendant's motion for summary judgment.
¶ 13 The facts of this case resemble those in Berry, where there was evidence that the plaintiff worked around materials that created asbestos dust, that certain brands of asbestos-containing products were commonly used at the worksite, and there is evidence allowing the reasonable inference that the defendant distributed or sold an asbestos-containing product used at the plaintiff's worksite.
¶ 14 Montaney presented evidence that (1) he worked at the water district from 1972 until 1995; (2) at times in the course of his work, he performed approximately 10 repair jobs per month using A/C pipe; (3) he used A/C pipe for repairs until 1990 or shortly thereafter; he stopped using A/C pipe 1990; and (4) he was exposed to airborne, asbestos-containing dust.
¶ 15 Montaney testified that he obtained pipe from only two sources: contractors and Pacific. He exclusively used pipe manufactured by Certainteed and Johns-Manville, and purchased Johns-Manville A/C pipe from
¶ 16 From this evidence, a jury could reasonably infer that Montaney purchased new A/C pipe from Pacific in 1983 and 1984, and that the new pipe purchased then would have included A/C pipe sold by JMM. A jury could also reasonably infer that Montaney used the A/C pipe for repairs between 1983 and the early 1990s, when he stopped using A/C pipe altogether. This is enough to establish a prima facie case.
¶ 17 Significantly, the Berry court rejected an argument similar to JMM's here, that the inference of exposure by defendant's products was based on "impermissible speculation."
¶ 18 JMM concedes that Montaney purchased new A/C pipe into the 1980s, but argues that he did not clarify exactly how far into the 1980s such purchases occurred. But the inferences from Montaney's statement must be drawn in his favor. Summary judgment was not appropriate.
¶ 19 Both parties identify potential confusion as to the distinction between Johns-Manville, JMM and J-M A/C Pipe Corporation.
¶ 20 JMM's remaining arguments are premised on evidence that appears to contradict Montaney's account. First, JMM argues that a document referring to the water district keeping an inventory of A/C pipe that was claimed to be at least 30 years old when it was abated in 1993 supports summary judgment. But the document does not purport to account for all of the A/C pipe that Montaney worked with during his employment, and at most, raises a question of fact. Second, JMM argues that Montaney's coworkers' testimony establishes that the water district stopped purchasing new A/C pipe prior to 1983. But contradictory evidence on
¶ 21 Montaney's evidence supports the reasonable inference that JMM sold A/C pipe through Pacific between 1983 and 1984 that reached Montaney's worksite and was used before 1990. Coupled with the abundant evidence of Montaney's exposure to airborne asbestos dust from A/C pipe while employed at the water district, Montaney states a sufficient prima facie claim against JMM.
¶ 22 Reversed.
WE CONCUR: DWYER and SCHINDLER, JJ.