Walston v. Boeing Co.

fl In 1911, the legislature passed the Industrial Insurance Act (IIA), Title 51 RCW, creating a no-fault system for efficiently compensating workers injured on the job. As part of that system, employers receive immunity from civil suits resulting from on-the-job injuries. RCW 51.04.010. However, the legislature specified that employers who deliberately injure their employees are not immune from suit. RCW 51.24.020. Under our precedent, an employer deliberately injures an employee if “the employer ha[s] actual knowledge that an injury [is] certain to occur and willfully disregard [s] that knowledge.” Birklid v. Boeing Co., 127 Wn.2d 853, 865, 904 P.2d 278 (1995).

¶2 In this case, Gary G. Walston was exposed to asbestos while working at The Boeing Company and was later diagnosed with mesothelioma. The Court of Appeals held that pursuant to the IIA, Boeing was immune from suit because Walston had not raised a material question of fact as to whether Boeing had actual knowledge that injury was certain to occur. We agree. Walston has not made such a showing, and therefore he is limited to the recovery provided by the IIA’s workers’ compensation system.

*394FACTS

|3 Walston worked for Boeing from 1956 to 1995. Although Walston was exposed to asbestos throughout his career with Boeing, at issue in this case is an incident of asbestos exposure that occurred in 1985. In January of that year, maintenance workers began repairing pipe insulation in the ceiling above the hammer shop. Specifically, the workers rewrapped the overhead pipes to contain flaking asbestos insulation. These maintenance workers used ventilators and protective clothing referred to as “moon suits” during the project. Clerk’s Papers (CP) at 2014. Although this work occurred overhead, Walston and the other hammer shop employees continued work below without protective ventilators or clothing. The repairs created visible dust and debris, and Walston used a plastic covering to protect his toolbox. Walston and other hammer shop employees requested that they work in a different location during the pipe repair. The supervisor told them to go back to work but recommended that they avoid working directly under the overhead repairs.

¶4 Walston was diagnosed with mesothelioma, a lung disease caused by inhaling asbestos fibers, in 2010. He passed away in April 2013. One of Walston’s experts, Dr. Carl Brodkin, concluded that Walston’s exposure during 1985 was “likely by far . . . the highest level of exposure experienced by Mr. Walston” during his Boeing career and “a component part of Mr. Walston’s cumulative exposure that resulted in his development of Mesothelioma.” CP at 2873. Another expert witness, Dr. Arnold Brody, testified that an individual exposed to asbestos fibers at levels greater than background sustain an immediate microscopic injury that is not observable. However, another of Walston’s experts, Dr. Andrew Churg, conceded that asbestos exposure is not certain to cause mesothelioma or any other disease.

*395¶5 Walston sued Boeing, claiming that his disease was caused by his exposure to asbestos while employed by the company. Boeing does not dispute that it was aware that asbestos was a hazardous material in 1985. Neither does Boeing dispute the facts underlying the 1985 incident. Instead, it argues that it did not have actual knowledge that Walston was certain to be injured and therefore it is immune from suit under the IIA. Boeing moved for summary judgment, but the trial court denied the motion. The Court of Appeals reversed and remanded for entry of an order granting summary judgment to Boeing. Walston v. Boeing Co., 173 Wn. App. 271, 288, 294 P.3d 759 (2013). We granted review. Walston v. Boeing Co., 177 Wn.2d 1019, 304 P.3d 115 (2013).

ISSUE

¶6 Has Walston raised a question of material fact as to whether Boeing had actual knowledge that he was certain to be injured by the asbestos exposure, thus allowing him to pursue his claim outside of the IIA’s workers’ compensation system?

STANDARD OF REVIEW

¶7 When reviewing summary judgment, we engage in the same inquiry as the trial court. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is appropriate only if “there is no genuine issue as to any material fact” and “the moving party is entitled to a judgment as a matter of law.” CR 56(c). All facts must be considered in the light most favorable to the nonmoving party. Vallandigham, 154 Wn.2d at 26. Summary judgment is granted only if, given the evidence, reasonable persons could reach only one conclusion. Id. The moving party bears the burden of showing that there is no genuine issue of material fact. Id. If this burden is satisfied, the nonmoving party must present evidence demonstrating *396material fact. Id. Summary judgment is appropriate if the nonmoving party fails to do so. Id.

ANALYSIS

¶8 The IIA created the workers’ compensation system, which we have described as a “grand compromise” that gave employers “immunity from civil suit by workers” in return for giving injured workers “a swift, no-fault compensation system for injuries on the job.” Birklid, 127 Wn.2d at 859.

f 9 However, the IIA does not exempt employers from civil claims filed by employees with injuries resulting “from the deliberate intention of his or her employer to produce such injury.” RCW 51.24.020 (emphasis added). Until the Birklid case in 1995, this exception was mainly applied in cases of physical assault against an employee. See 127 Wn.2d at 861-62. In Birklid, we considered for the first time a situation in which an employer knew in advance that its workers would become ill from the use of a new resin, yet still decided to put the resin into production. Id. at 863. The employer “then observed its workers becoming ill from the exposure.” Id. We held that “deliberate intention” includes when “the employer had actual knowledge that an injury was certain to occur and willfully disregarded that knowledge.” Id. at 865 (emphasis added).

flO Before adopting that narrow test, we reviewed broader tests from other jurisdictions and rejected them. Id. at 863-65. In particular, we considered a test that defined deliberate intention to include situations in which the injury is “ ‘substantially certain to occur.’ ” Id. at 864 (quoting Beauchamp v. Dow Chem. Co., 427 Mich. 1, 22, 398 N.W.2d 882 (1986)). We rejected that test and instead adopted a narrower test for Washington. Id. at 865. Thus, “deliberate intention” is a high standard that is met in Washington only when an employer had actual knowledge that an injury was certain to occur. Id. An act that has substantial certainty of producing injury is insufficient to *397meet that standard. Id. at 860. Similarly, negligence — even gross negligence — is not sufficient to meet the “deliberate intention” standard. Id.

¶11 We addressed the deliberate intention standard again in the Vallandigham case, where a school district was sued by two employees who had been injured by a severely disabled special education student. 154 Wn.2d at 17. The same student had injured staff members approximately 96 times during one school year. Id. at 24. We affirmed summary judgment for the school district, holding that the school district had no actual knowledge that injury was certain to occur. Id. at 35. The holding was based in part on the unpredictable nature of the special education student’s behavior. Although the district acknowledged that it was aware that further injuries to school employees was a “ ‘probability,’ ” we reiterated that “[e]ven substantial certainty that employee injury will occur by virtue of an employer’s action (or inaction) is insufficient.” Id. at 21, 36. “Disregard of a risk of injury is not sufficient to meet the [Birklid test]; certainty of actual harm must be known and ignored.” Id. at 28.

¶12 The holdings from Birklid and Vallandigham are binding on this case. As the experts in this case acknowledge, asbestos exposure is not certain to cause mesothelioma or any other disease. It does cause a risk of disease, but as we have previously held, that is insufficient to meet the Birklid standard. Id. Walston has not raised an issue of material fact as to whether Boeing had actual knowledge that injury was certain to occur. And to the extent that Walston argues that the deliberate intention standard is satisfied as long as the employer knows that someone, not necessarily the plaintiff, is certain to be injured, this court already rejected that argument in Birklid. 127 Wn.2d at 865. Therefore, the Court of Appeals properly remanded for entry of an order granting summary judgment to Boeing.

¶13 Walston contends that under the Court of Appeals’ holding, deliberate intention can be found only when the *398injury is immediate and visible. This is an incorrect reading of the Court of Appeals opinion. The Court of Appeals explained that immediate and visible injury is one way to raise an issue of material fact as to whether an employer had constructive knowledge that injury was certain to occur. Walston, 173 Wn. App. at 284. The court noted that this was how the employees raised an issue of material fact in Birklid and other cases involving exposure to toxic chemicals. Id. Since immediate and visible injury was not present in this case, Walston could not use that to show that Boeing had knowledge of certain injury. However, the Court of Appeals did not hold that immediate and visible injury is the only way to show an employer’s knowledge that injury was certain to occur.

¶14 Finally, Walston asks the court to find that Boeing had actual knowledge of certain injury because individuals exposed to asbestos are injured at the cellular level. We reject that argument because it would be inconsistent with the standard developed in Birklid and Vallandigham. Under Birklid, a risk of injury is insufficient to meet the deliberate intention standard. The asymptomatic cellular-level injury here is not itself a compensable injury. See, e.g., Dep’t of Labor & Indus. v. Landon, 117 Wn.2d 122, 125-28, 814 P.2d 626 (1991) (holding that a disease does not occur upon exposure; it occurs when it manifests itself). Instead, as Walston’s experts acknowledge, the asymptomatic cellular-level injury resulting from the exposure to asbestos created a risk of compensable injury. Thus, even if Boeing had actual knowledge that exposure to asbestos would cause asymptomatic cellular-level injury, the Birklid deliberate intention standard would not be met.

CONCLUSION

¶15 Workers who are injured on the job are compensated through the workers’ compensation system except in those *399egregious cases where the employer deliberately intended to injure the workers. Applying the standard set out in Birklid, we conclude that Walston has not raised a question of material fact as to whether Boeing had actual knowledge of certain injury resulting from the asbestos exposure. Therefore, Walston has not shown that Boeing deliberately intended to injure him and cannot pursue a claim outside of the workers’ compensation system. We affirm the Court of Appeals and remand for entry of an order granting summary judgment to Boeing on Walston’s claims.

Madsen, C.J.; C. Johnson and Fairhurst, JJ.; and Leach, J. Pro Tem., concur.