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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CANDANCE NOLL, individually and as
Personal Representative of the Estate
of Donald Noll, Deceased,               No. 71345-1-

                   Appellant,           DIVISION ONE

            v.



AMERICAN BILTRITE, INC.; AMETEK,
INC.; BIRD INCORPORATED;
BORGWARNER MORSE TEC, INC., as
successor-by-merger to BORG
WARNER CORPORATION; CBS
CORPORATION, a Delaware
corporation, f/k/a VIACOM INC.,
successor by merger to CBS              PUBLISHED OPINION
CORPORATION, a Pennsylvania
corporation, f/k/a WESTINGHOUSE         FILED: June 29, 2015
ELECTRIC CORPORATION; CERTAIN-
TEED CORPORATION; CONWED
CORPORATION; DOMCO PRODUCTS
TEXAS INC.; FORD MOTOR
COMPANY; GENERAL ELECTRIC
COMPANY; GEORGIA-PACIFIC, LLC;
HERCULES INCORPORATED;
HONEYWELL INTERNATIONAL, INC.;
INDUSTRIAL HOLDINGS CORPORA
TION, f/k/a THE CARBORUNDUM
COMPANY; INGERSOLL-RAND
COMPANY; J-M MANUFACTURING
COMPANY, INC.; KAISER GYPSUM
COMPANY, INC.; KELLY MOORE
PAINT COMPANY, INC.;
SABERHAGEN HOLDINGS, INC.;
No. 71345-1-1/2



SIMPSON LUMBER COMPANY, LLC;
SIMPSON TIMBER COMPANY;

                     Defendants,

SPECIAL ELECTRIC COMPANY, INC.,

                     Respondent.


       Becker, J. — A Washington court may exercise specific personal

jurisdiction over the nonresident supplier of raw asbestos used as a component

of asbestos-cement pipe when the pipe, manufactured in California, enters the

stream of commerce and is sold on a regular basis to buyers in Washington. The

defendant supplier in this case did not specifically target Washington as a

destination for its product and may not have actually known that its asbestos was

ending up in Washington as a component of pipe. Nevertheless, the regular

course of sales that brought the pipe into Washington satisfies the due process

requirement for minimum contacts because it shows that the defendant

purposefully availed itself of the protection of Washington's laws.

      This appeal arises from Donald Noll's death caused by malignant pleural

mesothelioma. Donald Noll died in 2013. Candace Noll is the representative of

his estate. She alleges that Donald's mesothelioma developed due to his

exposure to asbestos when he worked for a construction company in Port

Orchard between 1977 and 1979. Before he died, Donald Noll testified that he

was exposed to asbestos-cement dust on the job when he cut asbestos-cement

pipe manufactured by the CertainTeed Corporation.
No. 71345-1-1/3



        Candace Noll's complaint sought damages against CertainTeed, Special

Electric Company Inc., and other defendants. The only defendant that is a party

to this appeal is respondent Special Electric, a shell corporation. Special Electric

has financial responsibility for the conduct of Special Materials, an asbestos

broker that is now defunct. See Melendrez v. Superior Court. 215 Cal. App. 4th

1343, 1346-48, 1355-56, 156 Cal. Rptr. 3d 335. review denied. No. S211282

(Sup. Ct. July 17, 2013) (explaining the recent history and current status of

Special Electric). For purposes of this appeal, we refer to Special Electric and

the companies for which it has financial responsibility simply as "Special."

        At all relevant times, Special was a Wisconsin corporation with its principal

place of business in Milwaukee, Wisconsin. Special maintained offices and staff

in as many as eight different states to sell and help facilitate the delivery of

asbestos. It did not keep an office or staff in Washington.

        Noll's complaint asserted specific personal jurisdiction over Special in King

County under Washington's long-arm statute, RCW 4.28.185(1). Special entered

a limited appearance and attended Donald Noll's preservation depositions in April

2013.


        Special then moved to dismiss under CR 12(b)(2).1 Noll opposed the

motion, presenting as the sole issue whether Washington courts may exercise



        1 CR 12(b)(2) provides:
                (b) How Presented. Every defense, in law or fact, to a claim
        for relief in any pleading, whether a claim, counterclaim, cross
        claim, or third party claim, shall be asserted in the responsive
        pleading thereto if one is required, except that the following
        defenses may at the option of the pleader be made by motion: . . .
        (2) lack of jurisdiction over the person.
No. 71345-1-1/4



specific personal jurisdiction over Special under the stream-of-commerce

doctrine. The trial court dismissed Noll's complaint, citing J. Mclntvre Machinery.

Ltd. v. Nicastro. _ U.S. _, 131 S. Ct. 2780, 180 L Ed. 2d 765 (2011). Noll

appeals.

       When proceeding under CR 12(b)(2), we treat the allegations in the

complaint as established. If the trial court considers materials outside the

pleadings, as it did here, we review its decision under the de novo standard of

summary judgment, taking all factual inferences in favor of the plaintiff. State v.

AU Optronics. Corp.. 180 Wn. App. 903, 920-25, 328 P.3d 919 (2014).

       Reviewed in this light, the record shows that Special supplied asbestos to

a CertainTeed manufacturing plant in Santa Clara, California. CertainTeed used

the asbestos to make pipe that it shipped into Washington in substantial

quantities. According to shipping invoices, the Santa Clara plant sent at least

55,000 linear feet of asbestos-cement pipe to buyers in Washington between

1977 and 1979, through at least 31 discrete shipments.

       During that time period, Special supplied approximately 95 percent of the

asbestos used at CertainTeed's Santa Clara plant to manufacture asbestos-

cement pipe. In December 1977, Special contracted to supply CertainTeed's

pipe division with approximately 4,000 tons of blue asbestos per year from 1978

until 1983. The contract is acknowledged in a letter from General Mining, a

mining company in South Africa, agreeing to make that amount of blue asbestos

available to Special for distribution to CertainTeed. Special arranged for 1,018
No. 71345-1-1/5



tons of blue asbestos obtained from General Mining to be delivered to

CertainTeed's Santa Clara plant between 1977 and 1979.

       In short, Special regularly supplied raw asbestos for the manufacture of

pipe that moved into Washington through established channels of sale. The

issue is whether such conduct is enough to permit a Washington court to

exercise specific personal jurisdiction over Special, a nonresident defendant.

       A court may exercise specific personal jurisdiction over a nonresident

based on much more limited contacts with a forum state than would be required

for the exercise of general personal jurisdiction. But specific jurisdiction extends

only to causes of action that arise out of those limited contacts. AU Optronics.

180 Wn. App. at 913. Washington courts may exercise specific jurisdiction over

an out-of-state defendant if authorized by our long-arm statute, RCW

4.28.185(1), and if doing so is consistent with due process. Our long-arm statute

is designed to be coextensive with federal due process. Failla v. FixtureOne

Corp.. 181 Wn.2d 642, 650, 336 P.3d 1112 (2014). cert, denied. 135 S. Ct. 1904

(2015).

       A state court's assertion of jurisdiction is subject to review for compatibility

with the Fourteenth Amendment's Due Process Clause because it exposes

defendants to that state's coercive power. Goodyear Dunlop Tires Operations.

S.A. v. Brown       U.S.      , 131 S. Ct. 2846, 2850, 180 L. Ed. 2d 796 (2011).

The maintenance of the suit will not offend traditional notions of fair play and

substantial justice so long as the defendant has "certain minimum contacts" with

the forum that is asserting jurisdiction. Int'l Shoe Co. v. State of Wash.. 326 U.S.
No. 71345-1-1/6



310, 316, 66 S. Ct. 154, 90 L. Ed. 95 (1945). As a general rule, the sovereign's

exercise of power requires some act by which the defendant "purposefully avails

itself of the privilege of conducting activities within the forum State, thus invoking

the benefits and protections of its laws." Hanson v. Denckla. 357 U.S. 235, 253,

78 S. Ct. 1228, 2 L. Ed. 2d 1283 (1958). This principle "gives a degree of

predictability to the legal system that allows potential defendants to structure their

primary conduct with some minimum assurance as to where that conduct will and

will not render them liable to suit." World-Wide Volkswagen Corp. v. Woodson.

444 U.S. 286, 297, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980); accord Burger King

Corp. v. Rudzewicz. 471 U.S. 462, 471-72, 105 S. Ct. 2174, 85 L Ed. 2d 528

(1985).

       A three prong test is used to determine whether the federal due process

clause is satisfied. Specific jurisdiction comports with federal due process so

long as (1) purposeful "minimum contacts" exist between the defendant and the

forum state; (2) the plaintiff's injuries arise out of or relate to those minimum

contacts; and (3) the exercise of jurisdiction will be reasonable, that is, it will be

consistent with notions of fair play and substantial justice. AU Optronics. 180

Wn. App. at 914. If a plaintiff satisfies the first two prongs, the burden shifts to

the defendant to set forth a compelling case that the exercise of jurisdiction

would not be reasonable. AU Optronics, 180 Wn. App. at 914-15.

       At issue in the present case is the first prong, that is, whether Special

"purposefully established" minimum contacts with Washington. Burger King. 471

U.S. at 474. Defendants may not be haled into Washington solely as the result
No. 71345-1-1/7



of contacts that are random, fortuitous, or attenuated. Burger King. 471 U.S. at

475. Noll must show either that Special's activities constituted purposeful

availment of Washington's laws or purposeful direction toward Washington. AU

Optronics. 180 Wn. App. at 915.

        Noll relies on the stream-of-commerce doctrine to prove purposeful

availment. "The forum State does not exceed its powers under the Due Process

Clause if it asserts personal jurisdiction over a corporation that delivers its

products into the stream of commerce with the expectation that they will be

purchased by consumers in the forum State." World-Wide Volkswagen Corp..

444 U.S. at 297-98. Cases utilizing the stream-of-commerce doctrine as the

basis for long-arm jurisdiction are numerous. The limits of the doctrine were

recently explored by the United States Supreme Court in J. Mclntvre. 131 S. Ct.

2780.


        In that case, a British manufacturer—J. Mclntyre—wanted to develop a

market for its metal shearing machines in the United States. It sent

representatives to attend trade shows in a number of American cities, though not

in New Jersey. And it contracted with an American distributor who sold a single

machine to a company in New Jersey. That machine allegedly malfunctioned

and injured the plaintiff who brought a product liability suit in a New Jersey court.

The New Jersey Supreme Court held that the single sale in New Jersey was a

sufficient contact to satisfy the test for due process. J. Mclntyre "knew or

reasonably should have known that by placing a product in the stream of

commerce through a distribution scheme that targeted a fifty-state market the
No. 71345-1-1/8



product might be purchased by a New Jersey consumer." Nicastro v. Mclntvre

Mach. Am.. Ltd.. 201 N.J. 48, 987 A.2d 575, 577 (2010), reversed. J. Mclntvre.

131 S. Ct. 2780.

       Six justices of the United States Supreme Court agreed to reverse the

decision of the New Jersey Supreme Court, but they were not united in their

reasoning. All six agreed that the New Jersey court had erroneously rested

jurisdiction upon a single sale of a defective product in the forum State. The four-

justice plurality—Justice Kennedy writing for himself, Chief Justice Roberts, and

Justices Scalia and Thomas—was particularly concerned that the New Jersey

court was erasing the constraints of political boundaries. The plurality opinion

reminds courts that jurisdiction is rooted in "the central concept of sovereign

authority." J. Mclntvre. 131 S. Ct. at 2788 (plurality opinion). It is "inconsistent

with the premises of lawful judicial power" to exercise personal jurisdiction over a

nonresident "based on general notions of fairness and foreseeability." J.

Mclntvre. 131 S. Ct. at 2789 (plurality opinion). The plurality would have

permitted the exercise of jurisdiction to be based on transmission of goods "only

where the defendant can be said to have targeted the forum." J. Mclntvre. 131

S. Ct. at 2788-89 (plurality opinion).

       According to the plurality, the question is whether a defendant has

followed a course of conduct "directed at" the society or economy existing within

the jurisdiction of a given sovereign. J. Mclntvre. 131 S. Ct. at 2789 (plurality

opinion). The trial court here, relying on the plurality's statement of what is

required in a stream-of-commerce case, concluded that Noll's complaint had to


                                           8
No. 71345-1-1/9



be dismissed because there was no showing that Special directed its conduct at

the society or economy of the State of Washington.

       Justice Breyer authored a concurring opinion joined by Justice Alito. The

concurring opinion is controlling because it resolved the issue on narrower

grounds than the plurality's. AU Optronics. 180 Wn. App. at 919. The two

concurring justices did not endorse the plurality's proposal for a strict rule

requiring targeting of the forum. But neither were they willing to endorse New

Jersey's view of the stream-of-commerce doctrine, as they concluded it would

"abandon the heretofore accepted inquiry" into the relationship between the

defendant and the forum. J. Mclntvre. 131 S. Ct. at 2793 (Breyer, J., concurring

in the judgment). According to the concurrence, the defendant's activities in J_.

Mclntvre failed to establish personal jurisdiction under any articulation of the

stream-of-commerce theory and thus the case could be resolved under the

court's existing precedents, in particular World Wide Volkswagen Corp.. 444 U.S.

at 297-98. J. Mclntvre. 131 S. Ct. at 2792 (Breyer, J., concurring in the

judgment); State v. LG Elecs.. Inc.. 185 Wn. App. 394, 417-19, 341 P.3d 346

(2015). petition for review granted. No. 91391-9 (Wash. June 3, 2015). The

concurrence rejected the New Jersey court's approach as too "absolute." J.

Mclntvre. 131 S. Ct. at 2793 (Breyer, J. concurring in the judgment). "None of

our precedents" finds that a single isolated sale of a product in a State reflects a

relationship between the defendant and the forum sufficient to support jurisdiction

over an out-of-state defendant, "even if that defendant places his goods in the

stream of commerce, fully aware (and hoping) that such a sale will take place."
No. 71345-1-1/10



J. Mclntvre. 131 S. Ct. at 2792 (Breyer, J., concurring in the judgment); AU

Optronics. 180 Wn. App. at 918-19.

       Justice Breyer discussed the three separate opinions of Justices

O'Connor, Brennan, and Stevens analyzing the stream-of-commerce metaphor in

Asahi Metal Industry Co. v. Superior Court. 480 U.S. 102, 107 S. Ct. 1026, 94 L.

Ed. 2d 92 (1987). Justice O'Connor's opinion, he noted, would require

"'something more'" than simply placing a product into the stream of commerce,

even if the defendant is aware that the stream may or will sweep the product into

the forum State. J. Mclntvre, 131 S. Ct. at 2792 (Breyer, J., concurring in the

judgment). Justice Brennan's opinion would allow jurisdiction where a sale in a

State is part of '"the regular and anticipated flow'" of commerce into the State but

not where that sale is only an eddy, i.e., an isolated occurrence. J. Mclntvre. 131

S. Ct. at 2792 (Breyer, J., concurring in the judgment). Justice Stevens' opinion

indicated that "'the volume, the value, and the hazardous character'" of a good

may affect the jurisdictional inquiry and it emphasized Asahi's "'regular course of

dealing.'" J. Mclntvre. 131 S. Ct. at 2792 (Breyer, J., concurring in the judgment).

The isolated sale of a single metal shearing machine to one company in New

Jersey did not satisfy the stream-of-commerce analysis articulated by any of

these separate opinions in Asahi. Where there is no regular flow or regular

course of sales into the forum state, and no "'something more,' such as special

state-related design, advertising, advice, marketing, or anything else," the

stream-of-commerce doctrine does not support personal jurisdiction. J. Mclntvre.

131 S. Ct. at 2792 (Breyer, J., concurring in the judgment).


                                         10
No. 71345-1-1/11



       We have applied Justice Breyer's concurring opinion in two recent cases,

AU Optronics and LG Elecs. In AU Optronics, the defendant was an out-of-state

manufacturer of display panels. The display panels became components of

appliances that were sold in Washington through a regular flow or regular course

of sales. AU Optronics. 180 Wn. App. at 925. Considering the volume of sales

of these finished products in Washington, we rejected the defendant's argument

that there was an insufficient showing of purposefulness. AU Optronics. 180 Wn.

App. at 925. In LG Elecs.. we similarly permitted the exercise of personal

jurisdiction based on a regular flow of sales into Washington. LG Elecs.. 185

Wn. App. at 422-25. Purposeful availment will be found "if the incidence or

volume of sales into a forum points to something systematic—as opposed to

anomalous." LG Elecs.. 185 Wn. App. at 419.

       Here, too, we conclude a Washington court may assert specific personal

jurisdiction over Special, a component supplier, under the stream-of-commerce

doctrine. Special's product was a known hazardous material, one of the factors

mentioned by Justice Stevens in Asahi as affecting the jurisdictional inquiry.

Special's asbestos was supplied for use in making large quantities of pipe to be

distributed through existing channels of interstate commerce, including channels

regularly flowing into the State of Washington. It is the regular flow or course of

sales that distinguishes the facts here from the facts of J. Mclntyre. A plaintiff is

not required to prove both a regular flow and "something more."

       This result is consistent with the stream-of-commerce analysis articulated

in World-Wide Volkswagen Corp.. 444 U.S. at 286. There, the Court rejected a


                                          11
No. 71345-1-1/12



plaintiffs attempt to have an Oklahoma court exercise personal jurisdiction over a

New York seller based on "the fortuitous circumstance that a single Audi

automobile, sold in New York to New York residents, happened to suffer an

accident while passing through Oklahoma." World-Wide Volkswagen Corp.. 444

U.S. at 295. On the other hand, if the sale of a defective product in the forum

state arises from efforts to serve the market for that product in other states

"directly or indirectly," the exercise of jurisdiction in the forum state may be

consistent with the Due Process Clause.

               This is not to say, of course, that foreseeability is wholly
       irrelevant. But the foreseeability that is critical to due process
       analysis is not the mere likelihood that a product will find its way
       into the forum State. Rather, it is that the defendant's conduct and
       connection with the forum State are such that he should reasonably
       anticipate being haled into court there.. ..
              . . . Hence if the sale of a product of a manufacturer or
       distributor such as Audi or Volkswagen is not simply an isolated
       occurrence, but arises from the efforts of the manufacturer or
       distributor to serve, directly or indirectly, the market for its product in
       other States, it is not unreasonable to subject it to suit in one of
       those States if its allegedly defective merchandise has there been
       the source of injury to its owner or to others. The forum State does
       not exceed its powers under the Due Process Clause if it asserts
       personal jurisdiction over a corporation that delivers its products
       into the stream of commerce with the expectation that they will be
       purchased by consumers in the forum State. Cf. Gray v. American
       Radiator & Standard Sanitary Corp.. 22 III. 2d 432, 176 N. E. 2d
       761 (1961).

World-Wide Volkswagen Corp.. 444 U.S. at 297-98 (some citations omitted).

       Special claims that even when a steady current of sales carries a product

such as asbestos-cement pipe into the forum state, personal jurisdiction over the

asbestos supplier depends on the supplier's actual knowledge that the asbestos

would ultimately arrive in the forum state as a component. Special knew that its


                                           12
No. 71345-1-1/13



asbestos was being used to make pipe at CertainTeed's plant in Santa Clara,

California. But the record does not prove Special had actual knowledge that

CertainTeed distributed its pipe outside California. According to Special, its

dealings with the Santa Clara plant are sufficient purposeful contacts to allow

California to assert jurisdiction but not Washington. The regular flow of Special's

asbestos into Washington does not by itself support the assertion of jurisdiction

by Washington, Special argues, because it does not establish that Special had

contacts with Washington that were purposeful in nature.

      The governing precedents do not require a plaintiff to prove a component

supplier's actual knowledge of the manufacturer's plans to ship the finished

product into the forum state. AU Optronics. World-Wide Volkswagen Corp.. and

Justice Breyer's concurrence in J. Mclntvre require objective facts evidencing a

regular flow or regular course of sales by which the product enters the forum

state. As in AU Optronics. Special had a "large volume of expected and actual

sales." AU Optronics. 180 Wn. App. at 924. The volume of Special's shipments

of asbestos to CertainTeed's Santa Clara manufacturing plant, coupled with the

volume of finished pipe distributed into Washington by CertainTeed, signifies that

Special purposefully availed itself of the protection of Washington law.

      This reasoning is supported by Gray v. American Radiator, a leading case

on the application of the stream-of-commerce doctrine to a nonresident supplier

of components. Gray. 22 III. 2d at 442, cited with approval in World-Wide

Volkswagen Corp., 444 U.S. at 298. In Gray, the nonresident defendant in an

Illinois court was Titan, an Ohio manufacturer. Titan negligently manufactured


                                        13
No. 71345-1-1/14



and marketed a defective valve. The valve was later incorporated into a water

heater by a Pennsylvania company. The water heater was sold to an Illinois

resident, who was injured in Illinois when the heater exploded. Titan, the Ohio

manufacturer, had no other contacts with Illinois. Titan argued, as Special does

here, that the mere occurrence of an injury caused by its product in Illinois was

insufficient to support personal jurisdiction by the Illinois court. But Titan did not

claim that the use of its product in Illinois was an isolated occurrence. The court

recognized that "the relevant inquiry is whether defendant engaged in some act

or conduct by which he may be said to have invoked the benefits and protections

of the law of the forum." Gray. 22 III. 2d at 440. Based on the inference that

there was substantial use in Illinois of hot water heaters incorporating Titan's

valves, the court determined that Titan purposefully availed itself of the protection

of Illinois law, directly or indirectly:

       While the record does not disclose the volume of Titan's business
        or the territory in which appliances incorporating its valves are
        marketed, it is a reasonable inference that its commercial
        transactions, like those of other manufacturers, result in substantial
        use and consumption in this State. To the extent that its business
        may be directly affected by transactions occurring here it enjoys
        benefits from the laws of this State, and it has undoubtedly
        benefited, to a degree, from the protection which our law has given
        to the marketing of hot water heaters containing its valves. Where
        the alleged liability arises, as in this case, from the manufacture of
        products presumably sold in contemplation of use here, it should
        not matter that the purchase was made from an independent
        middleman or that someone other than the defendant shipped the
        product into this State.
               With the increasing specialization of commercial activity and
        the growing interdependence of business enterprises it is seldom
        that a manufacturer deals directly with consumers in other States.
        The fact that the benefit he derives from its laws is an indirect one,
        however, does not make it any the less essential to the conduct of
        his business; and it is not unreasonable, where a cause of action

                                           14
No. 71345-1-1/15



       arises from alleged defects in his product, to say that the use of
       such products in the ordinary course of commerce is sufficient
       contact with this State to justify a requirement that he defend here.

Gray, 22 III. 2d at 442.

       Special does not claim that the presence of its asbestos on the

construction sites in Washington where Donald Noll cut pipe was an isolated

event. Whether Special knew that CertainTeed's Santa Clara plant was shipping

pipe into Washington is not dispositive. Special's contacts with Washington were

systematic. They were not random, isolated, fortuitous, attenuated, or

anomalous. Pipe containing Special's asbestos flowed into Washington in the

regular stream of commerce, not in a mere eddy. Special benefited indirectly

from the laws of Washington that protected the marketing, sale, and use of

asbestos pipe in Washington during the years that Donald Noll was exposed to it.

Having accepted that benefit, Special cannot claim that its relationship with

Washington lacked purpose.

       Reversed.




WE CONCUR:




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                                        15
