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Washington Court Affirms Trial Court Order Granting Summary Judgment to Employer, Refusing to Extend Deliberate Intention Exception to Washington’s Industrial Insurance Act

Court of Appeals of Washington, Division One, August 24, 2015

The plaintiff filed a complaint against his employer, Alcoa, claiming his mesothelioma was caused by exposure to asbestos during the course of his employment. Alcoa filed a motion for summary judgment, arguing that the plaintiff’s claims against his employer were barred by the exclusive remedy of the Washington Industrial Insurance Act (WIIA) (RCW 51.04.010), unless the plaintiff could demonstrate that his mesothelioma was caused by a “deliberate intention” of Alcoa to produce such an injury. To meet the “deliberate intention” exception to the WIIA, there must be evidence that the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.
Alcoa relied upon the plaintiff’s expert’s testimony that mesothelioma was not “certain to occur” as a result of asbestos exposure, which supported the company’s argument that the plaintiff could not meet the deliberate intention exception to the statute. In opposition to Alcoa’s motion, the plaintiff argued there was evidence that Alcoa’s employees had contemporaneous visible symptoms and complained of those symptoms to Alcoa, which was sufficient to raise an issue of fact on the deliberate intention standard.
The trial court declined to adopt the plaintiff’s argument, and granted Alcoa’s motion for summary judgment on the grounds that there was no evidence of deliberate intention on the part of Alcoa, because mesothelioma was not “certain to occur” as a result of asbestos exposure. The appellate court affirmed, following the precedent of Walston v. Boeing Co., 181 Wn.2d 391, 334 P.3d 519 (2014). In affirming the trial court’s decision, the court held that “[asbestos exposure] does cause a risk of disease, but as we have previously held, that is insufficient to meet the Birklid standard . . . [Plaintiff’s] 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 [plaintiff has] not raised a genuine issue of material fact as to whether Alcoa had actual knowledge that the injury — mesothelioma — was certain to occur.”

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