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May 28, 2019 – Washington Court of Appeals Ruling

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Today, Division One of the Washington Court of Appeals affirmed a trial verdict just shy of $1,000,000 for our client, Marvin Leren, who unfortunately died from mesothelioma before his case was filed. The Court held in a published opinion that a distributor of asbestos is liable under the “product line” exception to successor nonliability. The defendant corporation, Elementis Chemicals, is the admitted successor to HCP. In 1977, HCP purchased 100% of the stock in Benson Chemical, a distributor of raw asbestos products. Within a few months of the stock purchase, Benson Chemical was dissolved. But rather than wind down the business and liquidate the assets, HCP continued operating Benson Chemical as a division of HCP long after the legal entity of Benson ceased to exist. HCP sold the same or similar products to the same customers, kept on the same employees, used the same office space, and continued to sell under the Benson name. One employee testified that he didn’t even known Benson had been dissolved until he was told as much by the plaintiff’s attorney decades later. Our client, Marvin Leren, worked at a Z-brick factory manufacturing brick facing products that used the raw asbestos fibers sold by Benson.

At trial, the jury answered special interrogatories finding six of the eight factors making up the various tests for exceptions to successor nonliability. The trial court found that HCP was liable under the “product line” exception, and on appeal Judge Verellen noted HCP’s “intentional steps to take control of Benson, making the company’s assets part of HCP and leveraging Benson’s goodwill while extinguishing Leren’s ability to hold Benson liable for injuries.” In holding for the first time that the exception applies to distributors as well as manufacturers, Division One cited to the reasoning of a California case, Kaminski v. Western MacArthur Company, 175 Cal. App. 3d 445 (Cal. Ct. App. 1985). Not only did the “product line” exception arise from California originally, but Kaminski cited as support our own Supreme Court reasoning in Hall v. Armstrong Cork, Inc., 103 Wn.2d 258 (1984).

In addition to deciding the product line issue, the Court of Appeals held that Leren’s step-daughter was a statutory beneficiary under Washington’s wrongful death the law despite the fact that Leren and her mother had divorced. The appellate court also reaffirmed Washington’s strong law on employer negligence, holding that the employer fault cannot be a superseding cause absent evidence of the employer’s actual specific knowledge of the hazard.

The published holding represents a years-long effort to hold Elementis accountable in this and other cases. Special congratulations Matt Bergman and Justin Olson, who did the appellate work. Also thanks to the trial team of Craig Sims, Matthew Bergman, Colin Mieling, and Justin Olson who obtained the verdict.

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