                                                                                                                       FILED
                                                                                                           E' 10t. T OF APPEALS
                                                                                                                    DIVISION II
                                                                                                          26.1Li JU    22 ?       IO: 23
      IN THE COURT OF APPEALS OF THE STATE OF
                                                                                                   WASI.- N             ti.    H 54TON
                                                          DIVISION II '                                     Y` m_
                                                                                                                      13EPI11Y
JACK         DON       KENNEDY                and      SANDRA                                No. 43941 -7 -II
KENNEDY, husband and wife,                                                               consolidated with

                                                                                             No. 45381 -9 -II
                                             Appellants,


            v.



SABERHAGEN HOLDINGS, INC,                                                           UNPUBLISHED OPINION


                                             Respondent.


            MELNICK, J. —          Jack Kennedy appeals the trial court' s grant of summary judgment for

Saberhagen Holdings, Inc.                and       its denial   of   his CR 60( b)( 3)   motion.     The trial court granted


summary judgment in favor of Saberhagen because it concluded Kennedy failed to present

sufficient evidence to create a reasonable inference that he was exposed to asbestos supplied by

Tacoma Asbestos, Saberhagen'                      s predecessor.'      Kennedy argues that there is sufficient evidence

to   create a genuine         issue   of material       fact regarding his        exposure   to Saberhagen' s   products.      We


agree.      Because Kennedy presented sufficient evidence to avoid summary judgment, we do not

consider         Kennedy' s    appeal        of   his CR 60( b)( 3)      motion.     We reverse and remand for further


proceedings.



                                                                 FACTS


I.          BACKGROUND


            In November 2011, a doctor diagnosed Kennedy with mesothelioma. Mesothelioma is a

cancer      in the   lining   of   the   lung      usually   caused    by   asbestos exposure.      Berry v. Crown Cork &

Seal Co., 103 Wn. App. 312, 314, 14 P. 3d 789 ( 2000).                                   Kennedy filed a lawsuit against

Saberhagen,           alleging        that    asbestos       supplied       by     Saberhagen     proximately         caused     his


1
     To   avoid confusion, we refer           to Tacoma Asbestos            as   Saberhagen.
43941 -7 -II / 45381 -9 -II



mesothelioma.         He alleged the exposure occurred on the Tacoma waterfront at pier 23 between


1964 and 1968 during his employment with the Washington Army National Guard.

         While on Pier 23, Kennedy personally handled asbestos and he worked around others

who    installed     and maintained     insulation containing        asbestos.       Kennedy' s exposure to asbestos

occurred   on    a    floating   machine   shop ( FMS), the FMS -789.                Kennedy and Richard Elmore,

Kennedy' s co- worker, testified in their depositions that the Army activated the FMS -789 in 1966

and awarded a contract           to Tacoma Boat     Building    to   prepare   the FMS -789 for    active   duty.   This


preparation     included    asbestos   insulation   repair and       installation.    Kennedy and other guardsmen

were on and off the FMS -789 during its repair to retrieve equipment and materials they needed

from the vessel.


         Kennedy'      s exposure    also occurred while        working     on   the FMS -6.     In their depositions,


Kennedy and Elmore testified that Kennedy replaced the insulation on the FMS -6' s boiler with

asbestos   Kennedy        procured     from Tacoma Boat.              The supplies for replacing the insulation

typically came from the vessel under repair or the National Guard' s main supply shop; however,

Kennedy ran out of insulation during the boiler repair and his supervisor instructed him to get

more    from Tacoma Boat.           Kennedy personally picked up the asbestos insulation from Tacoma

Boat.    Kennedy poured the powdered asbestos cement from the bags he retrieved from Tacoma

Boat into buckets        and     added water   to   make   insulating     asbestos     cement.   He then applied the


asbestos to the boiler with his bare hands.


         Kennedy and Elmore also testified that Kennedy worked with asbestos while repairing

insulation   on a small     tug boat,   the ST -2104.      Kennedy obtained the asbestos for the repair work

from Tacoma Boat.           Kennedy recalled obtaining a third bag of asbestos from Tacoma Boat, but

did not remember what use he made of that asbestos material.

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43941 -7 -II / 45381 -9 -II



          Kennedy provided evidence that Saberhagen, an insulation supplier and contractor in

Tacoma       during   the 1960'   s,   supplied asbestos    to Tacoma Boat.     Former Tacoma Boat employee,


Dennis Legas, testified in his deposition that Saberhagen was the only insulation contractor he

recalled     working for Tacoma Boat in the 1960s.                 Legas saw Saberhagen trucks in the Tacoma


Boat yard and testified that his brother - -
                                         in law delivered material from Saberhagen to Tacoma

Boat.    Another former Tacoma Boat employee, David Hansen, also testified in his deposition

that Saberhagen was the only insulation contractor he recalled working for Tacoma Boat in the

1960s    and    that Saberhagen        was present at    Tacoma Boat "[ d] efinitely   frequently."   Clerk' s Papers


 CP)    at   668.   Hansen also testified that he saw Ted Boscovich, who worked for Saberhagen,


doing    insulation     work   at      Tacoma Boat.        During its CR     30( b)( 6)   deposition, Saberhagen' s


representative testified that it had no evidence to either prove or disprove that Saberhagen

supplied insulation to Tacoma Boat.


II.          PROCEDURAL HISTORY


             Kennedy filed a complaint for negligence and products liability, among other claims,

against      Saberhagen   on   January        11, 2012.    Saberhagen moved for summary judgment, arguing

that Kennedy failed " to identify sufficient admissible evidence showing that [ Kennedy] was ever

actually exposed to or harmed by asbestos -containing products supplied by Saberhagen or its

alleged predecessors."         CP       at   17.   Saberhagen identified and argued only one issue to the trial

court: "     Where plaintiffs will be unable to introduce evidence at trial that Mr. Kennedy was ever

exposed to asbestos -containing products supplied by Saberhagen or its alleged predecessors,

should plaintiffs' claims against             Saberhagen be dismissed ?" CP at 22.


             Saberhagen moved to strike several exhibits attached to Kennedy' s response to summary

judgment.        The trial court denied Saberhagen' s motion to strike, and in granting Saberhagen' s
                                                               3
43941 -7 -II / 45381 -9 -II



motion    for    summary judgment              it   considered     the   Kennedy,   Elmore,   Legas,    and      Hansen


depositions taken for this specific litigation, in addition to the' depositions Kennedy submitted

that were taken in          prior   asbestos    cases   and   a   1971   Saberhagen letter.   Kennedy moved for

reconsideration of the trial court' s grant of summary judgment for Saberhagen, which the trial

court denied. Kennedy timely appealed.

         On July 25, 2013, Kennedy filed a CR 60( b)( 3) motion for relief from the order granting

Saberhagen summary judgment.                   With his motion, Kennedy submitted new evidence of his

alleged exposure      to    asbestos   from Saberhagen. The trial court considered the new evidence and


denied Kennedy' s CR 60( b)( 3) motion, concluding that the " alleged `newly discovered evidence'

is not of sufficient consequence as to vacate the Court' s prior order granting summary

judgment."       CP    at   1597.      Kennedy timely appealed and we consolidated that appeal with

Kennedy' s first appeal of the trial court' s grant of summary judgment in favor of Saberhagen.

                                                        ANALYSIS


         Kennedy argues the trial court improperly granted summary judgment because sufficient

circumstantial evidence exists to create a genuine issue of material fact as to whether Kennedy

was    exposed   to   asbestos      supplied   by   Saberhagen.      We hold sufficient circumstantial evidence


exists based on the Kennedy, Elmore, Legas, and Hansen depositions from which a reasonable

fact finder could infer that Kennedy' s worksite used Saberhagen' s product between 1964 and

1968 and that Kennedy suffered exposure to Saberhagen' s product. Because Saberhagen moved

for summary judgment only on the exposure issue, we do not consider its additional argument

that   Kennedy   failed to     offer   any   evidence   that he    suffered   harm from   being   exposed   to   asbestos
43941 -7 -II / 45381 -9 -II



that Saberhagen       supplied.      Accordingly, we reverse the trial court' s grant of summary judgment
                                               2
and remand       for further   proceedings.




I.         SUMMARY JUDGMENT IMPROPERLY GRANTED


           We review an order for summary judgment de novo, engaging in the same inquiry as the

trial   court.   Jones   v.   Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P. 3d 1068 ( 2002).                      Summary

judgment is proper if "the pleadings, depositions, answers to interrogatories, and admissions on


file, together with the affidavits, if any, show that there is no genuine issue as to any material fact

and     that the moving party is       entitled    to   a   judgment   as a matter of    law." CR 56( c).   We   construe




all facts and their reasonable inferences in the light most favorable to the nonmoving party.

Jones, 146 Wn.2d         at   300.    Summary judgment is proper only if reasonable persons could reach

but     one conclusion   from the      evidence presented.            Bostain   v.   Food Express, Inc., 159 Wn.2d 700,


708, 153 P. 3d 846 ( 2007).


           Generally, asbestos plaintiffs in Washington may establish exposure to a defendant' s

product     through   circumstantial evidence.                Lockwood    v.   A C & S, Inc., 109 Wn.2d 235, 246 -47,


744 P. 2d 605 ( 1987).         Due to the long latency of asbestos related diseases, a plaintiffs ability to

recall specific manufacturers of asbestos he was exposed to may be seriously impaired.

Lockwood, 109 Wn.2d             at   246. "   Hence, instead of personally identifying the manufacturers of

asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses

who identify manufacturers of asbestos products which were then present at his workplace."

Lockwood, 109 Wn.2d             at   246 -47. But the circumstantial evidence must be sufficient to allow a




2
 Because we determine summary judgment was improper, we do not consider whether the trial
court erred by denying Kennedy' s CR 60( b)( 3) motion.
                                                                  5
43941 -7 -II / 45381 -9 -II



reasonable     fact finder to deduce that the           plaintiff contacted       the defendant'      s product.      Lockwood,


109 Wn.2d at 247 -48.


          In Lockwood,          our   Supreme Court found              sufficient   evidence        of     exposure   where (   1)


shipyard workers testified that the defendant' s product was used on a large liner conversion and

the plaintiff testified that he worked on a similar ship overhaul in the same area in the same time

period, and ( 2) an expert testified that " after asbestos dust was released, it drifted in the air and

could    be inhaled     by bystanders       who   did   not work     directly   with asbestos."       Lockwood, 109 Wn.2d


at 247.


          In   Berry,   the   court   found   sufficient evidence of exposure where (                 1)    a purchaser for the


plaintiff' s workplace testified that some of the insulation products used at the workplace were


supplied by the defendant, and ( 2) an employee of the plaintiff' s workplace saw Plant and Carey

products almost every day at the workplace and another employee testified that the defendant

was a     distributor   of    Plant   and   Carey    products.     103 Wn.      App.   at   324.    The court in Berry held

that the evidence of exposure was not too speculative and did raise an inference that the

defendant'     s   products   were used at     the   plaintiff s workplace        during    the    relevant   time   period.   103


Wn. App. 324 -25.

          In Allen v. Asbestos Corp. Ltd., the court found sufficient evidence of exposure where ( 1)

evidence existed of three sale orders of asbestos cloth from the defendant over a period of three

years,    and (    2) an expert testified that if the plaintiffs workplace used asbestos cloths, the


plaintiff would have been exposed because the asbestos dust would have drifted throughout the

workplace.         138 Wn.    App.    564, 572 -73, 157 P. 3d 406 ( 2007).           The court in Allen determined that


it would be reasonable to infer that because the sales records establish that the plaintiff' s




                                                                 6
43941 -7 -II / 45381 -9 -II



workplace ordered large quantities of asbestos over multiple years, it would be reasonable to

infer that the plaintiff' s workplace used the asbestos it ordered. 138 Wn. App. at 573.

         When viewing the evidence in the light most favorable to Kennedy, we determine it

would be reasonable for a fact finder to find that Kennedy came in contact with Saberhagen' s

product.    Kennedy and Elmore provided evidence that Tacoma Boat overhauled the FMS -789 in

1966,   which      included      asbestos      insulation   repair   and   installation,   and that Kennedy was

occasionally    on     board the FMS -789         while   Tacoma Boat did the       repair.   Kennedy and Elmore

also stated that Kennedy worked directly with asbestos insulation he retrieved from Tacoma Boat

on   the FMS -6'   s   boiler   and   the   tug boat, ST -2104. Additionally the plaintiff presented evidence

that Saberhagen performed insulation work for Tacoma Boat using insulation containing

asbestos.    Two former Tacoma Boat employees testified that they remember Saberhagen as the

only insulation contractor working with Tacoma Boat in the 1960s and one testified that he saw

his brother - -
             in law,      who    worked       for Saberhagen, deliver      products   to Tacoma Boat.    Further,


Saberhagen could not offer any evidence to either refute or confirm the claims of the witnesses.

         Saberhagen argues the evidence leads to impermissible speculation that Kennedy' s

exposure came from its insulation materials. We reject Saberhagen' s argument. Testimony from

two former Tacoma Boat employees shows that Saberhagen worked extensively with Tacoma

Boat in the 1960s.         Kennedy, similarly situated to the plaintiffs in Lockwood, Berry, and Allen,

was a bystander while the FMS -789 had asbestos insulation work performed on it. And Kennedy

possibly had more exposure than the plaintiffs in Lockwood, Berry, and Allen, because there is

evidence that Kennedy worked directly with asbestos.

         Kennedy' s summary judgment evidence is sufficient to raise an inference that

Saberhagen' s products were used by Tacoma Boat and at their worksites during the 1960s when
                                                              7
43941 -7 -II / 45381 -9 -II




Kennedy      worked       for the Washington   Army   National Guard.         Further, the evidence is sufficient


to    raise an   inference that   Kennedy   had   exposure     to those   products.    Accordingly, the trial court

erred by granting summary judgment in favor of Saberhagen on the exposure issue because a

genuine issue of material fact exists as to whether Kennedy was exposed to Saberhagen' s
            3
products.          We reverse the order granting summary judgment and remand for further

proceedings.




II.        SABERHAGEN DID NOT RAISE THE ISSUE OF CAUSATION ON SUMMARY JUDGMENT


           Saberhagen argues that Kennedy raised no issue of material fact regarding whether

exposure        to Saberhagen'    s product caused   him   injury. Kennedy argues that Saberhagen did not

sufficiently raise this issue in the trial court. We agree with Kennedy.

           Every motion made to the trial court " must specify the grounds and relief sought ` with

particularity',     and courts    may   not consider grounds not stated       in the   motion."   Orsi v. Aetna Ins.


Co., 41 Wn.        App.   233, 247, 703 P. 2d 1053 ( 1985) (     citations omitted).     Specifically, " CR 7( b)( 1)

requires that a motion ` shall state with particularity the grounds therefor, and shall set forth the

relief   or order sought. "'      Pamelin Indus., Inc. v. Sheen -U.S.A., Inc., 95 Wn.2d 398, 402, 622 P. 2d

1270 ( 1981). "      The purpose of a motion under the civil rules is to give the other party notice of

the relief sought."        Pamelin, 95 Wn.2d at 402.




3 Because we hold the Kennedy, Elmore, Legas, and Hansen depositions Kennedy took for this
case are sufficient to overturn summary judgment, we do not consider the admissibility of the
evidence Saberhagen challenged in its motion to strike at the trial court.
                                                           8
43941 -7 -II / 45381 -9 -II




         Saberhagen identified               one   issue    on   summary judgment: " Where plaintiffs will be unable


to introduce evidence at trial that Mr. Kennedy was ever exposed to asbestos -containing products

supplied by Saberhagen or its alleged predecessors, should plaintiffs' claims against Saberhagen

be dismissed ?"            CP     at   22.   And while Saberhagen did make cursory mention ,in its summary

judgment motion that Kennedy failed to identify sufficient admissible evidence to show his harm

was caused by asbestos containing products supplied by Saberhagen, it did not particularly

identify    this issue in its          motion.     Saberhagen' s motion was clearly focused on exposure, arguing

that   Kennedy          could not prove          he   was   exposed      to Saberhagen'     s   product.     Saberhagen merely

mentioned         the   words "        harmed   by" or " causing his illness" without providing argument on the

causation        issue.    Our reading of Saberhagen' s motion is supported by the fact the trial court ruled

only   on   the    exposure       issue: "   The primary issue in this case is the issue of alleged exposure that

Mr. Kennedy experienced while working at the National Guard Marine Facility" and concluding

Kennedy failed to present sufficient evidence of exposure. CP at 950.

            Here,       the   mere      mention       of   the   words "   harmed     by"       or "   causing   his   injury"   was




insufficient to         raise   the issue of       causation with       particularity.    Saberhagen provided insufficient

                                                                                                                                      4
notice      to    the     other    party that      causation      was    one   of   the   grounds        for the   relief   sought.




Accordingly, we reviewed summary judgment only for sufficiency of evidence as to Kennedy' s

exposure to asbestos products from Saberhagen and its predecessors.




4 Our holding here does not prohibit Saberhagen from moving the trial court for summary
judgment on issues not relating to exposure.
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43941 -7 -I1 / 45381 -9 -II




        We reverse and remand for further proceedings.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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