       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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CASSIE LISBY, individually and as
Personal Representative of THE                   No. 69008-6-1                   m
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ESTATE OF CLAYTON LISBY, and as
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legal guardian for her minor child J.L.,         DIVISION ONE
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                     Respondent,                                                  O       QW
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              v.

                                                 PUBLISHED OPINION
PACCAR, INC.,
                                                  FILED: December 23, 2013
                     Appellant.


       Becker, J. —A Washington trial court that dismisses an action on the

ground that another state is a more convenient forum may not require the

defendant to stipulate that Washington's statute of repose will govern the case.

Deciding what state's statute of repose will apply to the action is a choice of law

issue that does not determine the adequacy or convenience of the alternative

forum. We reverse.

                                      FACTS


      Clayton Lisby was killed in a rollover accident at his workplace in Fort

Worth, Texas, in January 2011. The truck he was driving was designed in

Washington by engineers of the Kenworth Truck Company. Kenworth

manufactured the truck in Ohio in 1990, and it was likely delivered shortly

thereafter. The Kenworth Truck Company is an unincorporated division of
No. 69008-6-1/2



PACCAR, Inc. PACCAR is a Delaware corporation with its principal place of

business in Bellevue, Washington. Cassie Lisby, Clayton's widow, sued

PACCAR for wrongful death in Washington. She asserted claims of product

liability and negligence. PACCAR moved to dismiss the action on forum non

conveniens grounds, asserting that the case properly belonged in Texas.

       Washington recognized the doctrine of forum non conveniens in Werner v.

Werner, 84 Wn.2d 360, 371, 526 P.2d 370 (1974). "Forum non conveniens

refers to the discretionary power of a court to decline jurisdiction when the

convenience of the parties and the ends of justice would be better served if the

action were brought and tried in another forum." Johnson v. Spider Staging

Corp.. 87 Wn.2d 577, 579, 555 P.2d 997 (1976).

       The doctrine of forum non conveniens presupposes that there are at least

two forums in which the defendant is amenable to process, Werner. 84 Wn.2d at

370, and so the court must first determine whether there is an adequate

alternative forum. If so, the court then balances the private and public interest

factors articulated in Gulf Oil Corp. v. Gilbert. 330 U.S. 501, 67 S. Ct. 839, 91 L.

Ed. 1055 (1947). Spider Staging. 87 Wn.2d at 579. Unless the balance of

factors strongly favors the defendant, the plaintiff's choice of forum will seldom be

disturbed. Spider Staging, 87 Wn.2d at 579-80.

       Here, the trial court found that the Gulf Oil factors "strongly favor trial in

the State of Texas and strongly disfavor trial in Washington." The court granted

the motion to dismiss the action with prejudice, conditioned on PACCAR's
No. 69008-6-1/3



agreement to waive the Texas statute of limitations, a condition that PACCAR

accepted.

       Lisby remained concerned that in Texas, PACCAR would be able to have

the suit promptly thrown out on statute of repose grounds when it reaches Texas.

The Texas statute of repose cuts off all claims which accrue more than 15 years

after the original sale. The exceptions are few and narrow. See Tex. Civ. Prac.

& Rem. Code Ann. § 16.012 (2003). The Washington statute of repose is more

favorable to Lisby's chances of prevailing, given the fact that the truck accident

occurred more than 20 years after the truck was manufactured. Under

Washington law, a product is presumed to be past its useful safe life when it

causes injury more than 12 years after delivery to its first purchaser, but the

claimant may rebut that presumption by a preponderance of the evidence. RCW

7.72.060.

       At Lisby's request, the court amended the order of dismissal to add a

condition requiring PACCAR to stipulate to application of the Washington statute

of repose, chapter 7.72 RCW, in the Texas proceeding. The court order stated,

"All other choice of law issues will be addressed to the Texas court."

       PACCAR did not consent to the new condition. PACCAR claims the court

exceeded its discretionary powers by requiring a stipulation to a choice of law as

a condition of dismissal. That issue is before us on discretionary review.

       Forum non conveniens dismissals are reviewed for abuse of discretion.

Sales v. Weyerhaeuser Co.. 163 Wn.2d 14, 19, 177 P.3d 1122 (2008). An
No. 69008-6-1/4



untenable legal conclusion is an abuse of discretion. Sales. 163 Wn.2d at 19.

       Deciding which statute of repose will apply to Lisby's claim requires a

choice of law analysis. Ordinarily, it is the alternative forum that determines the

applicable law after assuming jurisdiction. Spider Staging. 87 Wn.2d at 579;

Myers v. Boeing Co.. 115Wn.2d 123, 136, 794 P.2d 1272(1990). Choice of law

is "not a necessary element of forum non conveniens doctrine." Hill v. Jawanda

Trans.. Ltd.. 96 Wn. App. 537, 546, 983 P.2d 666 (1999). "At most, resolution of

a choice of law question informs, but does not govern a trial court's forum non

conveniens dismissal." Hill. 96 Wn. App. at 546, citing Gulf Oil. 330 U.S. at 509.

       Preliminary consideration of a choice of law issue may be informative

because one of the Gulf Oil factors is the appropriateness of having the trial "in a

forum that is at home with the state law that must govern the case." Gulf Oil. 330

U.S. at 509. For example, in a case involving a Boeing aircraft that crashed in

Japan, the court recognized that at least some of the damages issues would be

governed by Japanese law. Myers. 115 Wn.2d at 130. "The Japanese courts'

expertise in applying their own law, while not a factor of paramount importance,

favors dismissal." Myers. 115 Wn.2d at 130.

       Unlike Myers, this is not a case where a preliminary determination of

choice of law allowed the trial court to weigh the relative expertise of Texas and

Washington courts in applying the law that would govern. Neither PACCAR nor

Lisby asked the trial court to engage in a choice of law analysis, and there is no

indication that the trial court did so.
No. 69008-6-1/5



          "The general authority is that statutes of repose are to be treated not as

statutes of limitation, but as part of the body of a state's substantive law in

making choice-of-law determinations." Rice v. DowChem., 124 Wn.2d 205, 212,

875 P.2d 1213 (1994). Washington will apply the statute of repose of a nonforum

state when appropriate, "even where such application would bar plaintiffs claim

from accruing and where plaintiff's claim would not have been barred under

forum law." Rice. 124 Wn.2d at 216. Therefore, if choice of law analysis dictates

application of the Texas statute of repose to this dispute, presumably the Texas

statute will be applied whether the case is tried in Texas or Washington.

       Lisby thus does not defend the condition on the basis that the Washington

statute of repose represents the correct choice of law. Her position,

fundamentally, is that trial courts have the discretion to impose a particular

choice of substantive law as a condition of dismissal.

       As a general proposition, a court that has assumed jurisdiction may attach

conditions to the removal of the cause to a more convenient forum. Sales. 163

Wn.2d at 21, citing Int'l Sales & Lease. Inc. v. Seven Bar Flying Serv.. Inc.. 12

Wn. App. 894, 899, 533 P.2d 445 (1975). The ability to attach conditions serves

the need for retaining the flexibility of the forum non conveniens doctrine. See

Piper Aircraft Co. v. Revno. 454 U.S. 235, 249, 102 S. Ct. 252, 70 L. Ed. 2d 419

(1981).

       In Sales, the court approved in concept the requirement of a stipulation

that the defendant actually submit to jurisdiction in an Arkansas state court rather
No. 69008-6-1/6



than requesting removal to federal court once in Arkansas. The stipulation would

ensure that the dispute would actually be litigated in the specific court that the

defendant had identified as the more convenient forum. Sales. 163 Wn.2d at 21-

23.


       Conditions can also be appropriate when they resolve doubts about

whether the alternative forum is truly a more convenient forum for the litigation.

Sales. 163 Wn.2d at 23. For example, this court affirmed a dismissal conditioned

on a defendant's admission of liability in Klotz v. Dehkhoda. 134 Wn. App. 261,

269, 141 P.3d 67 (2006). review denied. 160 Wn.2d 1014 (2007). Klotz involved

a car crash that occurred in Washington. Most damage witnesses were in

Canada. By conditioning dismissal upon the defendant's admission of liability,

the trial court ensured that there would be no problem with access to evidence,

one of the Gulf Oil private interest factors. See Gulf Oil. 330 U.S. at 508 (court

must consider private interests such as the cost of obtaining witnesses, "and all

other practical problems that make trial of a case easy, expeditious and

inexpensive"). Similarly, the court conditioned dismissal upon the defendant's

agreement to provide records relevant to the plaintiff's claims in Cariiano v.

Occidental Petroleum Corp.. 643 F.3d 1216, 1235 (9th Cir. 2011). cert, denied.

133 S. Ct. 1996 (2013). This condition was designed to mitigate a concern that

the plaintiff's access to evidence would be reduced in the alternative forum.

       The condition at issue here—PACCAR's stipulation to the Washington

statute of repose—was not designed to mitigate any particular concern about the
No. 69008-6-1/7



inconvenience of litigating in Texas. Lisby claims the condition is necessary to

ensure that Texas is an adequate forum.

       Whether the proposed alternative forum is adequate is a preliminary

determination that a court should make before weighing the Gulf Oil factors. An

alternative forum is adequate iftrial in the alternative forum would address "'the

essential subject matter of the dispute.'" HE 96 Wn. App. at 542, quoting Capital

Currency Exch.. N.V. v. Nat'l Westminster Bank PLC. 155 F.3d 603, 611 (2d Cir.

1998), cert, denied. 526 U.S. 1067 (1999). The possibility that moving the case

to a more convenient alternative forum will result in an unfavorable change in the

law is not a factor to be given substantial weight unless the remedy provided by

the alternative forum is "so clearly inadequate or unsatisfactory that it is no

remedy at all." Piper Aircraft. 454 U.S. at 254, cited in HjH, 96 Wn. App. at 543.

       It is the rare case where the remedy provided by the alternative forum is

so clearly inadequate or unsatisfactory that it is "'no remedy at all.'" Hill, 96 Wn.

App. at 541, citing Piper Aircraft. 454 U.S. at 254. When the court in Piper

Aircraft referred to the possibility of rejecting an alternative forum because it

provided "no remedy at all," the court had in mind a forum in which the subject

matter of the litigation could not be litigated. See Piper Aircraft. 454 U.S. at 254

n.22, citing Phoenix Canada Oil Co. v. Texaco. Inc., 78 F.R.D. 445 (D. Del.

1978). In the cited case, it was unclear whether the tribunal in the alternative

forum—Ecuador—would hear the case, "and there is no generally codified

Ecuadorean legal remedy for the unjust enrichment and tort claims asserted."
No. 69008-6-1/8



Piper Aircraft. 454 U.S. at 254-55 n.22.

       This is not the rare case of an alternative forum that cannot provide a

satisfactory remedy. Courts in Texas routinely hear product liability claims.

There is no reason to believe Texas would be unable to provide a remedy to

Lisby if she prevails. Assuring the plaintiff of a forum that can address the

essential subject matter of the dispute and provide a remedy should not be

confused with attaching conditions to make it more likely that the plaintiff will

obtain a favorable decision on a choice of law issue. Texas is an adequate

forum for Lisby's claim regardless of which statute of repose a Texas court may

decide to apply.

       Lisby emphasizes that the trial court also conditioned the order of

dismissal upon PACCAR's agreement to waive the statute of limitations. She

argues that there is no principled distinction between a condition that requires a

defendant to waive a statute of limitations and a condition that requires a

defendant to waive a statute of repose.

       Because PACCAR has not objected to waiving the statute of limitations,

the propriety of that condition is not before us. We note, however, that there are

numerous cases where courts have conditioned dismissal upon the defendant's

agreement to waive the statute of limitations in the alternative forum. See, e.g..

Myers. 115 Wn.2d at 127: Paper Operations Consultants Int'l. Ltd. v. S.S. Hong

Kong Amber. 513 F.2d 667, 672-73 (9th Cir. 1975). Typically, the reason for

requiring such a waiver is that the statute of limitations in the foreign forum may


                                             8
No. 69008-6-1/9



have run while the action was pending in the plaintiff's chosen forum. As a

consequence of delays inherent in litigation, the defendant may have acquired

"an airtight defense of untimeliness in the alternative forum since the litigation

began." Chang v. Baxter Healthcare Corp.. 599 F.3d 728, 736 (7th Cir.), cert-

denied. 131 S. Ct. 322(2010).

       Here, the lapse of time while this case has been pending in Washington

has not contributed to the possibility that Lisby's claim will be barred by the

Texas statute of repose. The potential bar of the Texas statute of repose

depends solely on the choice of law question that will be decided by the forum

court. Requiring PACCAR to agree in advance to application of the Washington

statute gives Lisby what the Chang court referred to as "a gratuitous substantive

advantage." Chang. 599 F.3d at 737.

       In short, a court's authority to impose conditions on a forum non

conveniens dismissal is not unlimited. Here, the trial court's choice of

Washington's statute of repose as the applicable law does not solve any problem

with the adequacy or convenience of Texas as a forum. Its only effect is to

impose Washington substantive law on the courts of Texas. An order dismissing

a case on forum non conveniens grounds is not to be used as a vehicle for

extending the reach ofWashington's substantive law.1 The trial court abused its



       1See Thomas Orin Main, Toward a Law of "Lovely Parting Gifts": Conditioning
Forum Non Conveniens Dismissals, 18 Sw. J. Int'l L. 475 (2011) (inquiring into sources
of authority for placing conditions on forum non conveniens dismissals and, at 493-94,
noting cases where reviewing courts found the conditions went too far).
No. 69008-6-1/10



discretion by imposing the condition.

       Reversed. The order of dismissal is remanded, and the trial court is

directed to strike the challenged condition.



                                                              •e<2)
WE CONCUR:




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