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Tarver v. E.J. Bartells Co.5/15/2000
Marthelma Tarver, on her own behalf and as the representative of the estate of Jewel Tarver, appeals the trial court's ruling dismissing their asbestos-related claims against Rapid-American Corporation, a successor in interest to the Philip Carey Manufacturing Corporation. The trial court dismissed the Tarvers' claims after granting Rapid-American's motion to enforce an earlier settlement the plaintiffs had entered into with Celotex Corporation, another corporate successor to Philip Carey. In Niven v. E.J. Bartells Co., 97 Wn. App. 507, 983 P.2d 1193 (1999), this court rejected Rapid-American's attempts to enforce a similar agreement, concluding that Rapid-American had independently succeeded to Carey's liabilities and that neither Carey nor Rapid-American were released in their own right under the agreement. Because the Tarvers' settlement also did not name Carey or Rapid-American, we conclude that the trial court erred in finding that Rapid-American was released under the agreement and reverse the trial court's order dismissing the Tarvers' claims.
DISCUSSION
In 1981, the Tarvers sued Celotex and other defendants, alleging that they developed asbestosis after being exposed to the defendants' products in shipyards in Portland, Oregon and in Washington. The plaintiffs obtained a judgment against several of the defendants and in 1990, while the judgment was being appealed, many of the defendants, including Celotex, settled with the Tarvers. In the settlement, the Tarvers agreed to release all future claims against the companies participating in the settlement and their 'successors, assigns, parents, subsidiaries, {and} affiliated entities{.}'
The Tarvers filed this action in 1997 after Jewel Tarver was diagnosed with lung cancer. Rapid-American moved to enforce the Tarvers' settlement with Celotex, arguing that the settlement released all claims against Rapid-American as a successor to Philip Carey's liability and as an affiliate of Celotex. The trial court agreed and dismissed the Tarvers' claims.
On appeal, the Tarvers contend that the trial court erred in enforcing their 1990 agreement with Celotex in the instant suit because the agreement did not release Philip Carey or Rapid-American as a successor to Carey. In Niven, this court recently considered a similar agreement in which the plaintiff in an asbestos case had released all claims against Celotex and its successors, assigns, parents, subsidiaries, and 'affiliated entities,' including claims for unknown or future complications relating to the plaintiff's exposure to asbestos. Niven, 97 Wn. App. at 510-12. When the plaintiff later sued Rapid-American to recover for cancer resulting from his asbestos exposure, Rapid-American attempted to enforce the earlier agreement, contending that the settlement also released Philip Carey and its corporate successors. On appeal, the court rejected that argument, concluding that Rapid-American had independently succeeded to Carey's liabilities. Niven, 97 Wn. App. at 510-11. Finding that the plaintiff's prior settlement 'names the Carey companies only in the context of defining Celotex,' the court concluded that the agreement clearly did not release Philip Carey or other successor corporations in their own right. Niven, 97 Wn. App. at 512.
The Niven court also rejected Rapid-American's argument that it benefited from the agreement as an affiliate of Celotex. Adopting the definition of 'affiliate' in RCW 23B.19.020(2), 'a person who directly or indirectly controls, or is controlled by, or is under common control with, a person,' the court concluded that the companies were not affiliates since they were not under common control at the time of Niven's sett
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