                                                                                                                  LED
                                                                                                        COURT OF APPEALS
                                                                                                             D, VS!
                                                                                                              1' y oN 1!

                                                                                                       2IJ14 APR 15   AM 8: 55
    IN THE COURT OF APPEALS OF THE STATE OF WASHI

                                               DIVISION II


SHAOUL S. HAI, an individual,                                                      No. 43877 -1 - II


                                  Appellant,


        v.




STL INTERNATIONAL, INC., a Washington                                     UNPUBLISHED OPINION
corporation,   and    TSA    STORES,          INC.,    a

Delaware corporation,


                                  Respondents.




        LEE, J. —    Shaoul Hai injured himself tripping over an inversion table on display in a

Texas sporting   goods store.     He then waited nearly three years before bringing a personal injury

claim   in Washington     against    retail    store   owner      The     Sports    Authority ( " TSA    ") and STL


International, Inc. ( " STL "),   the company that designed and manufactured the inversion table.

Both defendants successfully moved for summary judgment on the grounds that Texas law

should govern this dispute and that the suit is time -
                                                     barred by Texas' s two -year statute of

limitations.   Hai now appeals, arguing that the Washington Products Liability Act ( WPLA),

chapter   7. 72 RCW,    should govern     this dispute.          We disagree and affirm the superior court' s


summary dismissal of Hai' s claims.

                                                       FACTS


          On February 8, 2009, Hai, a Texas resident, was shopping for stationary bicycles at a

Dallas, Texas sporting      goods   store     owned    by       TSA.     Hai was in the area of the store that


displayed large     exercise equipment,       including     a   Teeter   Hang -Up     inversion table designed    and
No. 43877- 1- 11



manufactured         by   STL,       a   Washington company.              Although .STL had provided TSA with an


external lock to keep the inversion table locked in place while on display, the inversion table was

not secured     at   the time.           With his back to the Teeter Hang -Up, and while moving to look at

another piece of equipment,                Hai tripped      on   the inversion table'   s   bottom     support   tubing. As Hai


fell, the inversion table allegedly flipped up, causing Hai to be thrown and injure his neck.

           Hai sought treatment for his injuries from a number of doctors in Texas and, within six

months of the accident, retained counsel in Texas for a potential premises liability lawsuit

against    TSA.      In a May 11, 2009 letter to TSA' s insurer, Hai' s Texas attorney argued that Hai' s

injuries


           were due to multiple failures of your insured, including but not limited to your
           insured' s improper placement of the equipment in an unsafe manner and location
           on the showroom floor, your insured' s failure to properly secure the equipment
           and maintain it in a safe manner for customers, and your insured' s failure to
           properly warn customers of the dangers associated with the equipment.

Clerk' s Papers ( CP)          at   29.        In a later settlement demand letter, Hai' s Texas attorney repeated

these arguments.


           Texas has      a   two -
                                  year         statute of   limitations for   personal      injury   suits.   TEX. Civ. PxAC. &


REM. CODE Ann. § 16. 003( a).                    On   February    28, 2011 — after the applicable statute of limitations


in Texas had already                run —      Hai' s attorney again wrote TSA' s insurer concerning a potential

settlement.     In that letter, Hai' s attorney stated that he planned to file suit in Washington, STL' s

primary place of business, but nevertheless requested that TSA allow a six -month tolling period

in   Texas " to negotiate with STL, finalize those negotiations and hopefully resolve this matter

 outside of court."           CP    at   42.    The   record   does   not reflect   how TSA      responded       to this letter.   In


December 2011, nearly three years after the accident, Hai filed suit in Washington.


                                                                      2
No. 43877 -1 - II



         Hai'   s complaint against       STL    and   TSA    alleged several       theories     of   liability.   Hai alleged


that STL was liable under the WPLA because the inversion table he tripped over was either ( 1)

defectively. manufactured           or constructed   by   STL, ( 2)      defectively designed by STL, or ( 3) lacked

sufficient warnings      alerting     consumers    to the danger         of   walking    near   the   product.     Hai alleged


that TSA was liable as a negligent product seller under the WPLA because it positioned " the

product   in   such a   way that     a consumer might        trip   on   it." CP   at   302.    He also separately alleged

that TSA was liable under common law negligence for providing unsafe premises in its Texas

store.




          Both TSA and STL moved for summary judgment arguing that Texas law should govern

this   case and   that Texas'   s   two -year   statute of   limitations barred Hai'           s suit.   In opposition to the


motions, Hai produced a declaration from Jef Nelson, a Washington fitness instructor and gym

owner.     In his declaration, Nelson opined on the inadequacies of TSA and STL' s safety

procedures, the engineering of the Teeter Hang -Up, and the architecture and design of TSA' s

stores. Hai provided no other expert declarations in opposition to summary judgment.

          On July 27, 2012, the superior court heard argument on the summary judgment motion,

applied Texas' s statute of limitations and dismissed the suit as time -
                                                                       barred. Hai appeals.

                                                       ANALYSIS


          Hai argues that the WPLA should govern this dispute and that the superior court erred in

granting summary judgment to TSA and STL based on Texas' s two - ear statute of limitations.
                                                               y

Because the contacts in this case favor application of Washington law, and policy considerations

 and caselaw do not dictate a different result, we disagree.




                                                               3
No. 43877 -1 - II



A.         STANDARD OF REVIEW


           Hai appeals from the trial court' s summary judgment order dismissing his products

liability    claim as    time- barred under Texas law. "                      In review of summary judgment, this court

engages      in the   same        inquiry     as    the trial   court."    Rice    v.   Dow Chem. Co., 124 Wn.2d 205, 208,


875 P. 2d 1213 ( 1994).                We resolve all factual disputes and reasonable inferences in favor of the


nonmoving party.             Our Lady of Lourdes Hosp. v. Franklin County, 120 Wn.2d 439, 452, 842

P. 2d 956 ( 1993). "[             I]ssues of law are not resolved in either party' s favor, but are reviewed de

novo."      Rice, 124 Wn.2d             at   208.    In addition, we review choice of law questions de novo. Erwin

v.    Cotter Health Ctrs:, 161 Wn.2d 676, 690 -91, 167 P. 3d 1112 ( 2007).


B.          CHOICE OF LAW


            Hai   argues     that because STL "                 failed to design a locking mechanism on the inversion

table, the    most     significant contacts                in this   suit occurred       in Washington" and this court should


apply Washington law to his WPLA                                claim   against    STL       and        TSA.    Br. of Appellant at 1.


Because the only significant contact to Washington in this case involves STL' s corporate

headquarters and none of the
    q                                          contacts involving TSA' s negligence as a product seller under the

WPLA favor         application of            Washington law,'           we   disagree.       Accordingly, we affirm the superior



 1
     At oral argument before this court, Hai argued for the first time that the doctrine of depecage
pertains to this case and that we should apply the law of Texas to TSA and Washington law to
 STL.      Wash. Court            of   Appeals       oral   argument,      Hai    v.    STL International, Inc., No. 43877 -1 - II
     Jan. 10, 2014),    at   2     min. ( on       file   with court).     Hai is correct that Washington has adopted the
principal of      depecage in           conflicts of        law   analysis.      See,    e. g.,   Williams     v.   Leone & Keeble, Inc.,
 170 Wn.      App.    696, 285 P. 3d 906 ( 2012) (                applying Idaho law to some claims and federal law to
 others),    review     denied, 176 Wn.2d 1030 ( 2013).                           However, Hai incorrectly states how the
 doctrine     functions.            As Division One of this court explained in FutureSelect Portfolio
 Management, Inc.            v.    Tremont     Group,        175 Wn.      App.   840, 856         n.   15, 309 P. 3d 555 ( 2013), " Under
 the    principle of [ depecage],             different issues in         a single case       arising      out of a common nucleus of
No. 43877 -1 - II



court' s dismissal of Hai' s products liability claim as time -
                                                              barred under Texas' s statute of

limitations.


          As a general matter, Washington courts analyze choice of law questions in a three -step

process.    First, "[ a] n actual conflict between the law of Washington and the law of another state


must be shown to exist, before Washington courts will engage in a conflict of law analysis."

Burnside    v.   Simpson Paper Co., 123 Wn.2d 93, 103, 864 P. 2d 937 ( 1994).                             If such a conflict


exists,   we     then apply the "'    most     significant     relationship'      test, set forth in the Restatement


 Second) of Conflict of Laws §               145 ( 1971),"      adopted by the Washington Supreme Court in

Johnson    v.   Spider   Staging Corp.,      87 Wn. 2d 577, 580, 555 P. 2d 997 ( 1976). Martin v. Goodyear


Tire &     Rubber Co.,      114 Wn. App. 823, 829, 61 P. 3d 1196, review denied, 149 Wn.2d 1033

 2003).    As discussed      more    fully   below, "[ u] nder this approach, the rights and liabilities of the


parties are determined by the local law of the state which, with respect to that issue, has the most

significant      relationship to the    occurrence       and    the   parties."    Zenaida- Garcia v. Recovery Sys.

Tech., Inc., 128 Wn.         App.   256, 260, 115 P. 3d 1017 ( 2005), review denied, 156 Wn.2d 1026


 2006).     Finally, if the   contacts are      evenly balanced, the last step           of    the   analysis "   involves an


evaluation of the interests and public policies of the concerned states to determine which state

has the    greater   interest in determination      of   the   particular   issue."   Zenaida -Garcia, 128 Wn. App.

at 260 -61.




facts may be decided according to the              substantive        law   of   different   states." (   Emphasis added.)

Thus, contrary to Hai' s assertion that different state laws can apply to different defendants on the
same claim, the principle of depecage allows for the application of different substantive state law
only to different legal claims, not different defendants on the same claim.

                                                                5
No. 43877 -1 - II



           1.           Actual Conflict


           A number of actual conflicts between Washington and Texas law are present under the

circumstances of this case, apart from the obvious differences between the two states' statutes of

limitations for         personal     injury   suits.    This is important because " variations in limitation periods

are not subject         to    conflict of   laws methodology."            Rice, 124 Wn.2d         at   210. Washington adopted


the " Uniform Conflict            of   Laws —Limitations Act" ( Act) in 1983. Under this Act, RCW 4. 18. 020


directs that courts first determine which state' s substantive law applies before determining which

state' s   statute      of    limitation    applies.     Then, "[ a] fter the forum chooses the substantive law of


another state,         then that state' s    limitation      period will   apply." Rice, 124 Wn.2d at 210.


           First, in Washington, the WPLA, chapter 7.72 RCW, is the exclusive remedy for product

liability   claims and preempts             traditional      common       law   remedies   for   product -
                                                                                                         related   harms. Wash.


State Physicians Ins. Exch. &                 Ass' n    v.   Fisons   Corp., 122 Wn.2d 299, 322 -23, 858 P. 2d 1054

 1993); Wash. Water Power Co.                   v.   Graybar Elec. Co., 112 Wn.2d 847, 853, 774 P. 2d 1199, 779


P. 2d 697 ( 1989).             In contrast, under the Texas Products Liability Act, Texas. Civil Practice &

Remedies Code Ann. §                   82, a claimant may bring a personal injury claim under several legal

theories,       including      strict products       liability.   Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez,


995 S. W.2d 661, 664 ( Tex. 1999).

            Second,          under   Washington law, a plaintiff need not prove the availability                          of an

alternative, safe design to recover under a design defect theory but may " establish that a product

is unreasonably dangerous by means of factors other than the existence of alternative design."

Connor          v.   Skagit   Corp.,   99 Wn.2d 709, 715, 664 P. 2d 1208 ( 1983).                        Texas law, by contrast,

requires a plaintiff in a design defect products liability action to prove by a preponderance of the



                                                                      6
No. 43877 -1 - II



evidence      that there is         a "   safer alternative design" that " would have prevented or significantly

reduced     the      risk    of    the    claimant' s     personal    injury. . .     without substantially impairing the

product' s utility" and that such a design " was economically and technologically feasible at the

time the product left the control of the manufacturer or seller by the application of existing or

reasonably        achievable          scientific     knowledge."           TEX.     CIV.   PRAC. &   REM.      CODE   ANN. §


82. 005( a)( 1), (    b).


           Third, Washington has abolished joint and several liability in cases where the plaintiff's

own negligence             has   contributed     to his   or   her injuries. RCW 4. 22. 070( 1).        In Texas, by contrast,

a defendant is jointly and severally liable any time its share of responsibility for a plaintiff' s

injuries is greater than 50               percent.    TEx. CIV. PRAC. & REM. CODE Ann. § 33. 013( a)( 1).                Here,


there is evidence that Hai may have been injured, in part, due to his own negligence.

           Fourth, and of special importance given the facts of this case, Washington applies a

 pure" comparative fault approach to negligence actions, meaning that a plaintiff' s contributory

negligence,          no    matter     how    great,     does    not   bar recovery.         RCW 4. 22. 005.      Instead, " any


contributory fault chargeable to the claimant diminishes proportionately the amount awarded as

compensatory damages for                    an   injury    attributable to the claimant' s       contributory fault."    RCW.


4. 22. 005.     Texas,       by    contrast,     applies a " modified"       comparative fault approach to negligence


actions meaning that a plaintiff is barred from recovering damages if his or her percentage of

fault is   greater        than 50 percent. TEx. Civ. PRAC. & REM. CODE Ann. § 33. 001.                        Accordingly, if a

Washington jury was to find that Hai was 70 percent at fault for his own injuries due to his

carelessness while               shopping, he      could recover      30   percent of      any damage   award.    Under Texas




                                                                      7
No. 43877- 1- 11



law, though, if a jury found that Hai was greater than 50 percent at fault for his injuries, he would

recover nothing.


           Actual and substantial differences exist between the laws of Washington and Texas


governing        products   liability   claims.    Accordingly, it is appropriate for us to conduct a choice of

law inquiry.

           2.       Contacts


           After determining that an actual conflict of laws exists, we must determine which state

has the    most significant contacts with           the     parties and   the issues in the     case.   Johnson, 87 Wn.2d


at   580 -81.     In Johnson, the Washington Supreme Court adopted the approach set forth in the

Restatement (Second) of Conflict of Laws § 145. 87 Wn.2d                       at    580 -81.   The Restatement states:


            1)   The rights and liabilities of the parties with respect to an issue in tort are
           determined by the local law of the state which, with respect to that issue, has the
           most significant relationship to the occurrence and the parties.. .
            2) Contacts to be taken into           account ...       to determine the law applicable to an
           issue include:
                     a) the place where the injury occurred,
                     b) the place where the conduct causing the injury occurred,
                     c) the domicile, residence, nationality, place of incorporation and place
                     of business of the parties, and
                     d) the     place     where     the relationship,       if any, between the parties is
                     centered.

           These contacts are to be evaluated according to their relative importance with
           respect to the particular issue.


RESTATEMENT § 145.             Under this approach, the court " is not merely to count contacts, but rather

to consider which contacts are most significant and to determine where these contacts are

found." Johnson, 87 Wn.2d at 581.


           For personal injury actions, courts generally consider the place where the injury occurred

as   the   most significant contact.        See,   e. g.,   Rice, 124 Wn.2d     at   215 ( " where the negligent act ( for




                                                                 8
No. 43877 -1 - II




example, negligent manufacturing) took place out of state, but the product arrived in Washington

and caused personal        injury      here, it follows that the     place of      the tort is Washington "). Thus, in a



number of cases involving personal injury, Washington courts have adopted the reasoning in the

Restatement § 146,         which states, "     In an action for a personal injury, the local law of the state

where the injury occurred determines the rights and liabilities of the parties, unless, with respect

to the   particular   issue,   some other state       has   a more significant       relationship."   See,   e. g.,   Williams


v.   Leone &   Keeble, Inc., 170 Wn.               App.   696, 707, 285 P. 3d 906 ( 2012), review denied, 176


Wn.2d 1030 ( 2013).            Here, Hai' s injury occurred in Texas, and this significant contact clearly

favors application of Texas law to this dispute.


          Hai argues that the second factor, the place where the conduct causing the injury

occurred, weighs         heavily      in his favor.   This assertion, however, is not supported by the record.

As a preliminary matter, this argument ignores the negligent product seller component of Hai' s

products    liability    claim.       Under that portion of the claim, Hai alleged that TSA created unsafe


premises in its Texas store, failed to adequately warn consumers of the dangers of the product on

display, and failed to secure the Teeter Hang -Up with the external lock provided by STL. All of

this potential misconduct occurred entirely in Texas and Hai has provided no explanation or

argument as to why Washington law should be applicable to these aspects of his products

liability claim.

          The crux of Hai' s argument is that the Teeter Hang -Up was defectively designed by STL

in Washington       and   that    a   design defect primarily       caused   his   injury. In support of this claim, Hai

relies   entirely   on   the declaration      of   fitness instructor Nelson.          Nelson opined that an inversion


table without a built -n lock is inherently more dangerous than an inversion table with a built -n
                      i                                                                         i


                                                                9
No. 43877- 1- 11




lock. This argument is a red herring. The mere presence of a lock, whether internal or external,

would necessarily have still required someone to lock the inversion table in order to prevent the

type    of   incident involved here.         Thus, the direct cause of the accident was the decision to leave


the inversion table on the store floor unlocked, a decision made in Texas and one seemingly not

affected      by   the lack      of a   built - lock.
                                              in        Accordingly,         the    second   factor —the place where the


conduct       causing the    injury     occurred —  does not favor application of Washington law.


             The third factor to consider under the Restatement, the domicile, residence, nationality,

place of incorporation and place of business of the parties, is generally given very little weight.

The Washington Supreme Court, for instance, has held that "residency in the forum state alone

has not been considered a sufficient relation to the action to warrant application of forum law."

Rice,    124 Wn. 2d         at    216.    Here,    STL is    a    Washington        corporation.    TSA is a Delaware


corporation with        its headquarters in Colorado. Hai is             a   Texas    resident.   Accordingly, this factor

does not favor application of the law of either Washington or Texas ( or Colorado or Delaware).


             The final factor, the place where the relationship, if any, between the parties is centered,

weighs       in favor   of    applying Texas law.           The only readily ascertainable relationship of any

significance between these parties involves the negligence component of Hai' s products liability
                                                                                                        2
claim.       Under that   component of        the claim,    Hai   was   TSA'   s"   business invitee"       in its Texas store.


Accordingly, this factor also favors application of Texas law.




2"
     A business invitee is defined as ` a person who is invited to enter or remain on land for a
purpose directly or indirectly connected with business dealings with the possessor of the land. "'
Beebe        v.   Moses, 113 Wn.          App.    464, 467, 54 P. 3d 188 ( 2002) (            quoting the RESTATEMENT
 SECOND) OF TORTS § 332( 3) ( 1965)).



                                                                  10
No. 43877 -1 - II




           On balance, the contacts in this case tip in favor of applying Texas law. Hai was injured

in   a   Texas    retail    store ( owned           by    a   Delaware      corporation       headquartered in Colorado)           while




inadvertently tripping on a product designed in Washington, manufactured. in China, and shipped

to Texas from Georgia.                 The decisions on how to display the Teeter Hang - p were made in
                                                                                       U

Texas, and to the extent there is any relationship between the parties, it is centered in Texas.

Accordingly, we conclude that Texas' s substantive law is applicable to this dispute.

           3.        Policy Considerations

           Hai    argues       that Washington law               should         apply to this dispute "      because it has a strong

interest in      deterring     the design,      manufacture, and sale of unsafe products within                      its borders."     Br.


of   Appellant      at   22.    TSA and STL argue that the policy considerations behind the Washington

Products        Liability   Act      will not   be       advanced     by    applying Washington law to Hai'                s claims.   We


agree with TSA and STL.


           First, Hai argues that Texas has no interest in having its statute of limitations applied in

circumstances like these. Texas courts, however, have upheld a strong policy in favor of prompt

prosecution of       known        claims. "[        T] he primary      purpose of ...         all limitations statutes, is to compel


the exercise of a right of action within a reasonable time so that the opposing party has a fair

opportunity to defend            while witnesses are available."                    Moreno v. Sterling Drug, Inc., 787 S. W.2d

348, 351 ( Tex. 1990).                Moreover, Texas courts have held that " preclusion of a legal remedy

alone     is    not enough      to   justify    a   judicial    exception         to the   statute [ of   limitations]."     Robinson v.


Weaver, 550 S. W.2d 18, 20 ( Tex. 1977).


           Second, Texas has evidenced a strong interest in protecting its residents from personal

injury    caused     by    defective     products.            Huddy   v.   Fruehauf Corp.,       953 F.2d 955, 957 -58 ( 5th Cir.),




                                                                           11
No. 43877 -1 - II



cent.   denied, 506 U. S. 828 ( 1992); Mitchell              v.   Lone Star Ammunition, Inc., 913 F. 2d 242, 250 ( 5th


Cir. 1990) ( " The        Texas legislature and courts have developed an almost paternalistic interest in

the   protection of consumers. ").           Washington, on the other hand, has a policy of protecting its

designers       and manufacturers        from   excessive         liability   to injured       plaintiffs.     Zenaida -Garcia, 128


Wn.     App.    at   264 ( citing LAws OF 1981,        ch.   27, § 1).


           Third, application of Texas law " achieves a uniform result for injuries caused by products

used in the state of [Texas] and predictability for manufacturers whose products are used or

consumed        in [ Texas]."     Rice, 124 Wn.2d at 216.


           Finally, Washington has a strong policy against forum shopping when the applicable

statute of limitations has passed in another state. RCW 4. 16. 290 provides:


           When the cause of action has arisen in another state, territory or country between
           nonresidents of this state, and by the laws of the state, territory or country where
           the action arose, an action cannot be maintained thereon by reason of the lapse of
           time, no action shall be maintained thereon in this state.


Thus, policy considerations do not weigh in Hai' s favor.

           4.          Applicable Caselaw

           Hai       argues   that Johnson      and   Zenaida -Garcia dictate                  a   different   result.   Both cases,


however, are distinguishable.


           In Johnson, a Kansas resident fell to his death ( in Kansas) from scaffolding designed,

manufactured, and             tested   in Washington. 87 Wn.2d                at   581.      After determining that the contacts

between Washington and Kansas were evenly balanced, the Washington Supreme Court weighed

the     various      policy   considerations and      interests      of   both     states.    Importantly, the court noted that,

although Kansas had a $ 50, 000 limit on wrongful death damages designed " to protect defendants




                                                                     12
No. 43877- 1- 11



from       excessive     financial burdens" and " eliminate speculative claims and difficult computation


issues,"      those      concerns        were         inapplicable    because "       all   the   defendants [ in the   case]   are




Washington corporations, and the application of the Kansas wrongful death limitation will not

protect     Kansas     residents."         Johnson, 87 Wn.2d               at   582 -83.    The court further noted that, under


Washington          law, "[      u] nlimited recovery will deter tortious conduct and will encourage

respondents to make safe products for its customers. "3 Johnson, 87 Wn.2d at 583.

            Here, Texas law does not have a similar cap on the damages that a plaintiff can recover in

a products liability action. In fact Texas, unlike Washington, allows for punitive damage awards

in   products     liability     actions.        See,   e. g.,   Sears, Roebuck & Co. v. Kunze, 996 S. W.2d 416, 429 -30


    Tex.   App.   1999) ( allowing              a $   2 million punitive damage award in a products liability case).



3
    The Johnson case predates passage of the Washington Products Liability Act. The preamble to
the 1981 Act states,


                   Of particular concern is the area of tort law known as product liability law.
            Sharply rising premiums for product liability insurance have increased the cost of
            consumer       and    industrial           goods.     These increases in premiums have resulted in
            disincentives to industrial innovation                   and   the development        of new products.   High

            product liability premiums may encourage product sellers and manufacturers to
            go without liability insurance or pass the high cost of insurance on to the
            consuming public in general.
                  It is the intent of the legislature to treat the consuming public, the product
            seller, the product manufacturer, and the product liability insurer in a balanced
            fashion in order to deal with these problems.
                       It is the intent of the legislature that the right of the consumer to recover
            for injuries sustained as a result of an unsafe product not be unduly impaired. It is
             further the intent of the legislature that retail businesses located primarily in the
             state of Washington be protected from the substantially increasing product
             liability insurance costs and unwarranted exposure to product liability litigation.

LAWS        OF   1981,    ch.  Accordingly, although Washington law still has an interest in
                                 27, §     1.

deterring the tortious conduct of its manufacturers, the legislature would clearly have courts
balance that interest against the costs of questionable products liability suits.


                                                                        13
No. 43877- 1- 11



Thus, unlike in Johnson, Hai would not have been prejudiced in his ability to receive full

compensation      for any      alleged "   tortious   conduct"     of the product manufacturer had he filed this


suit in Texas within the appropriate statute of limitations.

         Zenaida -Garcia        also   is distinguishable.        In that case, an Oregon resident was killed ( in


Oregon)    by     a    piece   of   farm    equipment     designed,        manufactured,      and originally sold in

Washington.               Garcia, 128 Wn.
                  Zenaida -                           App.   at   258.    After deciding that the contacts between

Oregon and Washington were balanced, Division One of this court concluded:


         Washington has strong policy interests in deterring the design, manufacture and
         sale of unsafe products within its borders.  In contrast, Oregon has no strong
         interest in application of its statute of repose to protect a Washington corporation,
         and application of the Oregon rule would not protect Oregon residents, but would
         merely limit their ability to recover damages.

Zenaida -Garcia, 128 Wn. App. at 266 ( emphasis added).

         This case does not involve statutes of repose but, instead, involves statutes of limitations.


Moreover, unlike in Zenaida -Garcia, this case does not involve a Washington corporation selling

a   defectively   designed     or manufactured product within              its   own   borders.   In fact, this case does


not   involve the     sale or use   of any item —either here         or   in Texas. Unlike in both Zenaida -Garcia


and Johnson, Hai never used the product he alleges injured him. As previously discussed, Hai' s

products liability claims primarily relates to the actions of an allegedly negligent product seller in

Texas, not actual design defects of a product manufactured in Washington. Accordingly, neither

of these cases are on point.




                                                             14
No. 43877 -1 - II



           Because the contacts in this case favor application of Texas law, we affirm the superior

                                                                                                                           4
court' s   summary dismissal         of Hai' s claims as        barred
                                                           time -           under   Texas'      s statute of   limitations .


           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:




4 TSA moved for summary judgment below on the alternative ground that it was not subject to
personal      jurisdiction    by    Washington    courts   under     the facts      of   this   case.   Contrary to Hai' s
assertions,     TSA did       not abandon      this issue below      and    again   briefed it      on appeal.      However,

because we affirm the trial court' s ruling applying Texas law to this dispute, we do not reach this
issue. We do note that Hai requested attorney fees in his reply brief related solely to TSA' s
claim that it should not be subject to the personal jurisdiction of Washington' s courts under the
facts   of this case.      Hai   cites   RAP 18. 9 in   support of   this   contention.         RAP 18. 9, however, gives
this court the power to sanction a party for filing a frivolous appeal. Here, TSA is not appealing
the trial     court' s   decision ( Hai is).
                                   Furthermore, an appeal is frivolous only if "it presents no
debatable issues and is so devoid of merit that there is no reasonable possibility of reversal."
Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 619, 94 P. 3d 961 ( 2004).     The superior

court never decided the jurisdictional question and, accordingly, it was not unreasonable for TSA
to   ask us   to   consider   it.   Moreover, RAP 2. 5( a) allows a party to raise " at any time the question
 of appellate court       jurisdiction."  Hai' s argument for attorney fees is not well founded and we do
not consider it further.


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