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AWB Applauds the Washington Court of Appeals for Declining To Expand Employer Liability in Precedent-Setting Asbestos Exposure Case |
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Written On: November 09, 2004 |
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OLYMPIA – The Association of Washington Business (AWB) applauds the decision of the Washington State Court of Appeals, Division I to refuse to expand the liability of employers under our state’s costly workers’ compensation system in the context of asbestos exposure in Shellenbarger v. Longview Fibre.
The decision was announced on November 8. AWB, along with the Washington Self-Insurers Association (WSIA), filed an amicus curiae (“friend-of-the-court”) brief asking the court to reject the plaintiff’s claim.
“This is the first case in Washington history decided by an appeals court dealing with employer responsibilities under workers’ compensation when it comes to asbestos exposure claims,” said AWB’s General Counsel Kris Tefft. Tefft wrote the amicus brief for AWB and WSIA.
Shellenbarger worked in Longview Fibre’s papermaking plant in Longview between 1960 and 1996. After his retirement, he learned he had a respiratory disease called pulmonary fibrosis, which can be caused by any number of agents, including an exposure to asbestos. Shellenbarger filed for, and received, workers’ compensation benefits as a result of the disease.
Not content, Shellenbarger also filed suit against numerous parties, including his employer Longview Fibre, seeking civil damages for his exposure to asbestos. However, Washington’s workers’ compensation system is a “no-fault” system which represents a grand compromise between employers and workers: Workers receive swift, sure and certain benefits when injured on the job, and employers are immune from civil liability in tort lawsuits. The only exception to that immunity is if the worker’s injury is caused by the “deliberate intent” of the employer.
“Fortunately, Washington courts have very narrowly construed what it means for an employer to ‘deliberately intend’ the injury of a worker on the job,” Tefft added. The employer must have actual knowledge an injury is certain to occur, and the employer must willfully disregard that knowledge. This is a much more demanding standard than an employer’s carelessness or negligence but rises to the level of a physical assault.
In this case, Shellenbarger argued that Longview Fibre had actual knowledge dating back to the 1960s about the dangers of asbestos and still allowed Shellenbarger to be exposed to it. Shellenbarger attempted to have the Court of Appeals adopt a less stringent definition of “certain injury” employed by a small number of other states to hold Longview Fibre liable. Shellenbarger also sought to apply current day understandings of the dangers of asbestos exposure to activities that occurred long ago.
Following the requests made by Longview Fibre, AWB, and the WSIA, the Court of Appeals flatly rejected Shellenbarger’s case, stating “a reasonable [jury] could not conclude that the company knew with certainty that Shellenbarger, or any employee, would be injured by asbestos exposure in the workplace.”
Unfortunately, the Court of Appeals designated their decision as “unpublished” which means it cannot be cited as precedent in future cases. Because this is the first time the Court has issued such a decision in the controversial area of asbestos exposure, AWB is evaluating whether to formally request the Court to re-designate the decision as “published” and therefore set as a precedent.
“This is an important decision for Washington employers,” said AWB President Don Brunell. “First, the Court maintained the integrity of the ‘grand compromise’ of workers’ compensation from further erosion. Second, the Court rejected one of the main arguments of the asbestos plaintiffs in saying that just because the worker may have been exposed to asbestos, which is not by itself an injury, that falls outside the workers’ comp system.”
“Asbestos lawsuits are a major drain on the U.S. economy and are a problem all around the country,” Brunell continued. “Hopefully the Court’s decision here will have a positive effect on limiting these kinds of suits in Washington while still allowing injured workers the sure and certain benefits of workers’ comp.”
AWB continues to seek federal legislation to settle asbestos claims, but in previous years, the legislation passed the U.S. House, but was stopped in the Senate by Democrats who threatened to filibuster asbestos fairness reform bills. AWB has not been successful in convincing Washington’s two senators, Maria Cantwell and Patty Murray, to back asbestos reforms.
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