Court of Appeals of Washington

Cindy Maxwell, the personal representative of the Estate of Edmond Brown, and Marilou Brown (collectively the Browns) appeal the trial court’s order granting summary judgment in favor of Parsons Government Services, Inc. (Parsons) and Brand Insulations, Inc. (Brand). This action arises from Edmond’s alleged exposure to asbestos between 1971 and 1972 during the construction of Atlantic Richfield Corporation’s (ARCO) petroleum refinery at Cherry Point in Ferndale. Parsons was the general contractor who constructed the Cherry Point refinery and Brand was the insulation subcontractor who installed asbestos-containing insulation and gaskets during construction of the refinery.

The trial court granted summary judgment in favor of both Parsons and Brand based on RCW 4.16.300 and RCW 4.16.310, which provide a six-year statute of repose for claims arising from the construction of improvements upon real estate property. The Browns argued there is a question of fact regarding application of the construction statute of repose to their claims against both parties. The Browns now appeal the trial court’s decision. The Browns argued that RCW 4.16.300 must be interpreted narrowly, and that the legislature enacted the construction statute of repose only to protect defendants from the liability of others and forces beyond their control. They suggest that the statute of repose is inapplicable when a plaintiff seeks to hold a defendant liable for its own negligence. Parsons argued that the language of RCW 4.16.300 is broad and sweeping and should be applied expansively. Brand emphasizes that the construction statute of repose was designed to protect contactors from stale claims. The court ruled that it was unnecessary to adopt either a narrow or broad interpretation of RCW 4.16.300 as the statute of repose applies to “all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property.”

The Browns also argued that the construction statute of repose is inapplicable here because (1) their claims arose from Parsons’ and Brand’s sale of the insulation rather than their construction activities; and (2) the asbestos-containing insulation giving rise to their claims did not involve an “improvement upon real property” as required under RCW 4.16.300. However, the court noted that RCW 4.16.300 states that the construction statute of repose in RCW 4.16.310 applies if a claim arises from the construction, alteration, or repair of an improvement upon real property, both of which were met here.

The appeals court ultimately held that that (1) both Parsons and Brand satisfied the “construction activities” requirement of RCW 4.16.300 because there is no evidence that the Browns’ claims arose from Parsons’ and Brand’s sale of asbestos-containing insulation rather than from their construction activities; (2) both Parsons and Brand satisfied the “improvement upon real property” requirement of RCW 4.16.300 because the installation of the insulation occurred during the construction of the Cherry Point refinery, which was an improvement upon real property; and (3) the Browns’ argument based on the 2004 amendment to RCW 4.16.300 has no merit because the 1967 version of the statute applies in this case.

Therefore, the court affirmed the trial court’s grant of summary judgment in favor of Parsons and Brand.