    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JOHN M. KALAHAR and PEGGY L.
KALAHAR, husband and wife,                            No. 72635-8-1


                    Appellants,                       DIVISION ONE

                                                      UNPUBLISHED OPINION

ALCOA, INC.,

                     Respondents
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CERTAINTEED CORPORATION;                                                       en

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HANSON PERMANENTE CEMENT, INC.,                                                C~3      CD -.

f/k/a KAISER CEMENT CORPORATION;                                               no           ' ' ^
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KAISER GYPSUM COMPANYJNC;
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 PFIZER INC.; RILEY POWER, INC., f/k/a                                         IX       ;£*-"
 RILEY STOKER CORP., f/k/a BABCOCK                                             o        cn'^~
 BORSIG POWER, INC., f/k/a D.B. RILEY,                                         -p-      o      —
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 INC.; SABERHAGEN HOLDINGS, INC.;
and UNION CARBIDE CORPORATION,

                     Defendants.                      FILED: August 24, 2015


      Appelwick, J. — The Kalahars appeal the summary judgment dismissal of their

personal injury action against Alcoa. Kalahar and his wife sued Alcoa claiming that

Kalahar's mesothelioma was caused by asbestos exposure during his employment at an

Alcoa plant. Because RCW 51.04.010 provides employers immunity from civil suits by

workers for injuries on the job, the Kalahars brought suit under the intentional injury

exception outlined in RCW 51.24.020. The trial court dismissed the Kalahars' action
No. 72635-8-1/2




reasoning that Alcoa did not have actual knowledge that injury was certain to occur as

required by the intentional injury exception. We affirm.

                                         FACTS


       John Kalahar worked various jobs at the Alcoa "Wenatchee Works" plant in

Wenatchee, Washington from March 1963 to September 1963 and from March 1964 to

April 1971. Wenatchee Works was an aluminum smelter where raw alumina ore was

converted into molten aluminum. At the plant, alumina ore was placed into large pots and

high levels of electricity were used to separate the aluminum molecules from the alumina

ore.



       Kalahar first worked as a trainee in "potrooms" at the plant. A separate team of

"potliners" would periodically "dig out" spent pots and reline them while Kalahar was

nearby. There was asbestos in the materials used to line the pots where the molten

aluminum was created. Kalahar also worked near the machine shop around machinists

who would cut Marinite boards creating dust with asbestos particles. Kalahar's position

in the machine shop as a sheet metal apprentice required him to cut asbestos-containing

cloth himself. As a result of working around the dust from the Marinite in the machine

shop, Kalahar would often sneeze and blow his nose. When he worked as a sheet metal

apprentice he would get an itchy sensation in his face. At the time Kalahar worked at the

plant, Alcoa was aware of the health risks of asbestos exposure and that exposure could

result in asbestosis and lung cancer.

       In January 2014, Kalahar was diagnosed with mesothelioma, a cancer primarily

associated with asbestos exposure. Kalahar and his wife filed a complaint against Alcoa

for personal injuries.   On September 25, 2014, Alcoa filed a motion for summary
No. 72635-8-1/3




judgment. It asserted that the Kalahars' claims against it are barred by the exclusive

remedy of the Washington Industrial Insurance Act (WIIA)—RCW 51.04.010. Alcoa

asserted that the Kalahars' claims were barred unless they could demonstrate Kalahar's

mesothelioma was caused by the deliberate intention of Alcoa to produce such injury—a

narrow exception to RCW 51.04.010 outlined in RCW 51.24.020. It argued that under

Washington case law, the Kalahars had to provide evidence that (1) Alcoa had actual

knowledge Kalahar was certain to develop mesothelioma and (2) that it willfully

disregarded that knowledge. In arguing that the Kalahars could not provide evidence

satisfying the deliberate intention exception, Alcoa relied heavily on the Kalahars' expert's

deposition testimony that asbestos exposure is never certain to cause mesothelioma or

any injury.

       The trial court agreed with Alcoa and concluded that under the Washington

Supreme Court's recent decision in Walstonv. Boeing Co., 181 Wn.2d 391, 334 P.3d 519

(2014), the Kalahars failed to satisfy the deliberate intention exception. Consequently, it

granted Alcoa's motion for summary judgment. The Kalahars appeal.

                                       DISCUSSION


       This court reviews summary judgment orders de novo. Hadlev v. Maxwell, 144

Wn.2d 306, 310-11, 27 P.3d 600 (2001). Summary judgment is appropriate only where

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. CR 56(c); Peterson v. Groves, 111 Wn. App. 306, 310, 44 P.3d 894

(2002). When considering the evidence, the court draws reasonable inferences in the

light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wn.2d 17, 21, 896

P.2d 665 (1995).
No. 72635-8-1/4




      The WIIA was the product of a "grand compromise" in 1911. Birklid v. Boeing Co.,

127 Wn.2d 853, 859, 904 P.2d 278 (1995). Injured workers were given a swift, no-fault

compensation system for injuries on the job and employers were given immunity from civil

suits by workers. ]d_. But, employers who deliberately injured their employees would not

enjoy the immunity from suit under RCW 51.24.020's deliberate intention exception, jd.

       RCW 51.24.020 states:


      If injury results to a worker from the deliberate intention of his or her
      employer to produce such injury, the worker or beneficiary of the worker
      shall have the privilege to take under this title and also have cause of action
      against the employer as if this title had not been enacted, for any damages
      in excess of compensation and benefits paid or payable under this title.

       In 1995, in Birklid. the Washington Supreme Court examined earlier intentional

injury exception cases. 127 Wn.2d at 862. It noted that previous courts interpreted RCW

51.24.020 as providing an exception for only cases of assault and battery by the employer

against the employee. Id. Itconcluded that the statutory words "deliberate intention ... to

produce such injury" must mean more than assault and battery.               Id. at 862-63.

Consequently, it set out to define "deliberate intention" in RCW 51.24.020. See id at 865.

      The Birklid court held that "deliberate intention" means (1) the employer had actual

knowledge that an injury was certain to occur and (2) willfully disregarded that knowledge.

Id at 865; see ajso Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 27-

28, 109 P.3d 805 (2005). Before adopting that narrow test, the Birklid court considered

and rejected broader tests from other jurisdictions. See id. at 864-65. The Washington

Supreme Court recently applied the standard outlined in Birklid in Walston. 181 Wn.2d at

396-97.
No. 72635-8-1/5




      Walston was exposed to asbestos while working at Boeing and was later

diagnosed with mesothelioma. jd at 393. Walston was exposed to asbestos throughout

his career with Boeing (from 1956 to 1995), but only one 1985 incident of asbestos

exposure was at issue, jd at 394. In 1985, maintenance workers began repairing pipe

insulation in the ceiling above the hammer shop where Walston worked,             jd.   The

maintenance workers wore protective clothing and ventilators, but the hammer shop

employees below did not.     ]d   The repairs caused visible dust and debris, and the

employees requested that they work in a different location during the pipe repair.       Id

Their supervisor told them to go back to work in the hammer shop, but told them to avoid

working directly under the overhead repairs. jd

      Walston was diagnosed with mesothelioma in 2010 and passed away in 2013. Id

Walston's estate sued Boeing claiming that Walston's disease was caused by the

asbestos exposure during his employment. Id at 395. One of the experts testifying on

behalf of the decedent stated that asbestos exposure is not certain to cause

mesothelioma or any other disease. ]d at 394.

       Boeing did not dispute that it was aware in 1985 that asbestos was hazardous or

that the 1985 incident happened as described, jd at 395. Instead, it argued that it did

not have actual knowledge that Walston was certain to be injured and therefore it was

immune from suit under the WIIA. Id. Boeing moved for summary judgment, jd

      The Walston court reasoned that as the expert acknowledged, asbestos exposure

is not certain to cause mesothelioma or any other disease, jd at 397. It continued that

even though asbestos exposure does cause a risk of disease that is insufficient to meet

the standard in Birklid. Id. It thus concluded that Walston's estate did not raise an issue
No. 72635-8-1/6




of material fact as to whether Boeing had actual knowledge that injury was certain to

occur.1 Id.


       Here, the trial court granted Alcoa summary judgment based on the Washington

Supreme Court's holding in Walston. The Kalahars argue that summary judgment was

improper, because Walston is distinguishable. They argue that in Walston there was no

evidence that Walston or any workers in his vicinity suffered immediate visible symptoms

from asbestos exposure.      They claim that unlike in Walston, the Kalahars offered

evidence that Alcoa employees had visible symptoms and complained of those

symptoms.

       The Kalahars attempt to distinguish Walston based on their evidence of Kalahar's

contemporaneous physical symptoms claiming that none existed in Walston. But, the

Walston court ultimately reached its conclusion by reasoning that asbestos exposure is

not certain to cause mesothelioma or any other disease—not because Walston failed to

provide evidence of physical injury—contemporaneous or delayed. 181 Wn.2d at 397

("[Asbestos exposure] does cause a risk of disease, but as we have previously held, that

is insufficient to meet the Birklid standard."). Like the expert in Walston, the Kalahars'

expert admitted that asbestos exposure, at any level, is never certain to cause

mesothelioma or any other disease. We are bound by the Supreme Court's decision in

Walston. Therefore, we conclude that the Kalahars have not raised a genuine issue of


       1 The Kalahars argue that the effect of the Walston court's application of the first
prong of the Birklid test removes occupational diseases from the intentional injury
exception to the WIIA altogether. They contend this is so, because no employee could
ever prove that his or her employer knew with certainty that the employee would suffer
an injury in the form of disease several years later. We can respond only that both
Walston and Birklid are Washington Supreme Court decisions, and the legislature has
not taken issue with either decision.
No. 72635-8-1/7




material fact as to whether Alcoa had actual knowledge that the injury—mesothelioma-

was certain to occur.


      We affirm.




WE CONCUR:




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