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Niven v. E.J. Bartells Co.9/20/1999
This is an appeal from an order of summary Judgement dismissing an injured worker's cancer claim against Rapid-American Corporation. We reverse. First, Rapid-American was not released by the worker's earlier settlement of his asbestosis claim against an unaffiliated company. Second, although the claimant's cancer is also the result of his asbestos exposure, the statute of limitations does not bar a trial because Rapid-American has failed to show that the cancer could have been diagnosed three years before the present suit was filed.
We review an order of summary Judgement by conducting the same inquiry as the trial court, considering all facts and reasonable inferences in the light most favorable to the nonmoving party. Bruns v. Paccar, Inc., 77 Wn. App. 201, 208, 890 P.2d 469, review denied, 126 Wn.2d 1025 (1995).
David Niven worked as an insulator beginning in the mid-1950s and came into frequent contact with asbestos. In November 1980, Niven sued the Celotex Corporation for personal injuries related to asbestosis, a disease caused by the inhalation of asbestos fibers and characterized by the formation of fibrous tissue in the lungs. Niven alleged he had contracted asbestosis as the result of exposure to asbestos products in the course of his employment. He settled this suit in 1986.
In 1993, Niven developed symptoms of lung cancer, also allegedly caused by his workplace exposure to asbestos, and was later diagnosed with lung cancer. He filed another suit in November 1993 alleging that his workplace exposure to asbestos had also caused the lung cancer. One of the named defendants in Niven's second suit was Rapid-American Corporation. Rapid- American has never manufactured or distributed asbestos. Niven alleged that Rapid-American had liability as a successor to other companies. Rapid-American moved to dismiss on the basis that Niven had released his claim in the 1986 settlement agreement, and alternatively on the basis that the suit was time-barred. The court granted the motion based on the release and did not reach the statute of limitations issue. Niven appeals from the order of dismissal.
SUCCESSOR LIABILITY
Niven's injuries are allegedly the result of his exposure to asbestos products manufactured or distributed by the Philip Carey Manufacturing Company (old Carey). Old Carey no longer exists. In 1967, it merged with the Glen Alden Company. Liabilities typically become the responsibility of the surviving company when two corporations merge. Hall v. Armstrong Cork, Inc., 103 Wn.2d 258, 261-62, 692 P.2d 787 (1984). By the terms of the merger agreement as well as by operation of law, Glen Alden assumed old Carey's liabilities. Glen Alden then immediately assigned all the assets and liabilities of old Carey to its own new subsidiary, the Philip Carey Manufacturing Company, later renamed the Philip Carey Corporation (new Carey). In 1972, Glen Alden sold new Carey to Celotex, and Celotex assumed new Carey's liabilities, including the liabilities of old Carey.
Niven's 1980 suit against Celotex was based on the role of Celotex as a successor to the liabilities of the Carey companies. In the agreement, Niven released all claims against certain entities described as "facility members", including claims for unknown or future complications relating to his asbestos exposure, including lung cancer, but reserved his right to sue parties not released in the agreement. The 1986 settlement agreement did not list Rapid-American or Glen Alden among the entities released. Niven's present suit against Rapid-American is based on the theory that Rapid-American independently succeeded to the liabilities of old Carey through its own merger wi
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