Background
Lee Hetterly worked as a maintenance technician at the ARCO Cherry Point petroleum refinery in Whatcom County beginning in 1971. During his employment, he worked with asbestos-containing insulation that had been selected, purchased, and installed by Brand Insulations, Inc. during the refinery’s construction between 1971 and 1972. Hetterly’s work involved contact with insulated piping and equipment, which often broke or was knocked off during maintenance, generating asbestos dust.
Decades later, in 2021, Hetterly was diagnosed with malignant mesothelioma, which he died from shortly thereafter. His executor, Frederick K. Polinder III, sued 53 defendants, including Brand, alleging the mesothelioma resulted from asbestos exposures at the refinery and other locations. Brand moved for summary judgment, asserting that the six-year construction statute of repose (RCW 4.16.300-.310) barred all claims against it because construction was substantially completed in the early 1970s—decades before the injury was discovered.
The Court’s Holding
The Washington Supreme Court held that the construction statute of repose bars some but not all of the Estate’s claims against Brand. The court concluded that to the extent claims arise from Brand’s construction activities—specifically the installation of thermal insulation as part of the refinery’s construction—those claims are barred by the six-year repose period. The insulation Brand installed was found to be a normal and integral component required for the refinery to function as intended, and Brand’s installation activities contributed to constructing the improvement on real property.
However, the court held that claims arising from Brand’s independent activities as a product seller or negligent supplier of asbestos-containing insulation are not barred by the statute of repose. The court found a material question of fact regarding whether Brand was acting as a seller (purchasing and reselling insulation at a marked-up price, exercising discretion in product selection) versus solely as a contractor. Because Brand had not established as a matter of law that all of the Estate’s claims arose solely from construction activity, summary judgment was inappropriate.
Key Takeaways
- The construction statute of repose applies only to claims arising from construction activities; it does not bar claims based on a defendant’s independent duties as a product seller or supplier.
- The critical inquiry focuses on the defendant’s activities, not the materials used or whether products are incorporated into a real property improvement.
- Thermal insulation was held to be integral to a refinery’s operation, and its installation contributed to the refinery’s construction, thus subjecting such claims to the repose statute.
- A contractor who also supplies products may face product liability even if its construction activities are time-barred, depending on factual circumstances regarding the seller/supplier relationship.
- A constitutional challenge to the statute’s validity was not addressed because it was not timely raised in the trial court.
Why It Matters
This decision is significant for asbestos litigation and construction law because it clarifies that the Washington construction statute of repose does not entirely shield defendants who function in multiple capacities. While the six-year limitation applies to construction work, plaintiffs may still pursue product liability theories against contractors who also selected and resold materials. This ruling is particularly important in latent-injury cases like asbestos exposure, where disease manifestation occurs decades after exposure, often falling outside the statutory period. The decision prevents contractors from using the repose statute as an absolute shield against product seller liability, preserving a potential avenue of recovery for injured parties when factual disputes exist about the defendant’s role.
For practitioners, the case establishes that courts will examine the totality of a contractor’s activities rather than mechanically applying the statute to any construction-related work. The holding also reinforces that the legislature’s intent in enacting the repose statute was to protect traditional construction professionals, not to eliminate product liability law through clever structuring of contractor-supplier relationships.