Arnold v. Saberhagen Holdings, Inc. (2011)

Our plain-English summary of Arnold v. Saberhagen Holdings, Inc. (Washington Court of Appeals, January 11, 2011).

Reuben Arnold, an insulator who worked with asbestos, died of mesothelioma in March 2008, and his son Daniel also died of the disease. The family sued Lockheed Shipbuilding and many other companies, alleging Reuben was exposed at several sites including Lockheed Shipyard and that Daniel was exposed through his father. The trial court granted Lockheed summary judgment. The Arnolds then found contracts they said showed Lockheed was a government contractor bound by the federal Walsh-Healey Act's workplace-safety provisions, and asked the trial court to vacate the judgment on newly discovered evidence. The trial court denied the motion. While this appeal was pending, the same court decided an earlier appeal in the case and held that the Act creates no duty running to the Arnolds. Applying the law of the case doctrine, the court affirmed the denial. Even if the motion had been granted, the trial court would be bound by that earlier holding, and no manifest error or change in law justified revisiting it.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Washington Court of Appeals, 2nd Division
• Decided: January 11, 2011
• Docket: No. 40015-4-II
• Stage: Appeal from post-trial motions
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Washington

Outcome. The court affirmed the trial court's denial of the Arnolds' CR 60(b)(3) motion to vacate summary judgment for Lockheed, because the earlier appeal had already decided that the Walsh-Healey Act creates no duty to the Arnolds.

What the court held. Under the law of the case doctrine, a second appellate court will not revisit the first appeal's holding absent manifest error or an intervening change in law, so reversing the denial of the motion would give the plaintiffs no relief.

Issues decided: Employer and Contractor Liability, and Workers' Compensation, Government Contractor Defense and Removal, Trial Procedure and Discovery.

The people and their exposure

• Reuben J. Arnold: mesothelioma; died

• Daniel J. Arnold (family member): mesothelioma; died

Who	Work	Where	When	Products
Reuben J. Arnold	insulator (shipyards and maritime work)	Lockheed Shipyard
Daniel J. Arnold	son of an insulator; dust brought home

The defendants

• Lockheed Shipbuilding Corporation (contractor)
• Saberhagen Holdings, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Arnold v. Saberhagen Holdings, Inc. (Washington Court of Appeals, 2nd Division, 2010). The Court of Appeals affirmed summary judgment for Lockheed on Daniel Arnold's own occupational exposure claim, but reversed it on all other claims by the Arnolds and remanded for trial.
• Zimko v. American Cyanamid (Louisiana Court of Appeals, 4th Circuit, 2005). The appeals court reversed the judgment against Tate & Lyle because workers' compensation exclusivity barred it, affirmed liability and the survival award against American Cyanamid, and cut the wrongful death award against American Cyanamid to 50% by allocating fault equally between the two companies.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

MARJORIE M. ARNOLD, Individually, and as Personal Representative of the Estate of REUBEN J.

ARNOLD; and DANIEL J. ARNOLD, Individually, Appellants,

v.

SABERHAGEN HOLDINGS, INC., as Successor to TACOMA ASBESTOS COMPANY and THE

BROWER COMPANY; AMERICAN OPTICAL CORP.; THE BOEING COMPANY; CERTAINTEED

CORPORATION; C.H. MURPHY/CLARK ULLMAN, INC., D&G MECHANICAL INSULATION, INC.,

HANSON PERMANENTE CEMENT, INC., f/k/a KAISER CEMENT CORPORATION; KAISER GYPSUM

COMPANY, INC.; INTERNATIONAL PAPER COMPANY, individually and as successor to ST. REGIS

PAPER COMPANY and CHAMPION INTERNATIONALCORPORATION; KIPPER & SONS

FABRICATORS, INC., LOCKHEED SHIPBUILDING COMPANY; LONE STAR INDUSTRIES, INC.,

individually and as successor-in-interest to PIONEER SAND & GRAVEL COMPANY; MARIANA

PROPERTIES, INC.; as successor-in-interest to Hooker Chemical Company; J.M. MARTINAC

SHIPBUILDING CORPORATION; METALCLAD INSULATION CORPORATION; MILLERCOORS, LLC,

as successor-in-interest to OLYMPIA BREWING COMPANY; MINE SAFETY APPLIANCES

COMPANY; NORTH SAFETY PRODUCTS USA; OCCIDENTAL CHEMICAL CORPORATION, as

successor-in-interest to HOOKER CHEMICAL COMPANY; P-G INDUSTRIES, INC., as successor-in-

interest to PRYOR GIGGEY CO., INC.; PIONEER AMERICAS, LCC, as successor-in-interest to

HOOKER CHEMICAL COMPANY; RAYONIER, INC.; RILEY POWER, INC., a/k/a RILEY STOKER

CORPORATION, f/k/a BABCOCK BORSIG POWER, INC., f/k/a D.B. RILEY, INC., SEQUOIA

VENTURES, INC., formerly known as and as successor-in-interest to BECHTEL CORPORATION,

BECHTEL INC., BECHTEL McCONE COMPANY, BECHTEL GROUP, INC.; SIMPSON TIMBER

COMPANY; TODD PACIFIC SHIPYARDS CORPORATION, individually and as successor-in-interest

to TODD SHIPYARDS CORPORATION; TODD SHIPYARDS CORPORATION, individually and as

successor-in-interest to TODD PACIFIC SHIPYARDS CORPORATION; TRANE U.S., INC., f/k/a

AMERICAN STANDARD, INC., individually and as parent and alter ego of AMERICAN BOILER

CORPORATION, WESTINGHOUSE AIR BRAKE — COMPANY and KEWANEE BOILER COMPANY, a

division of AMERICAN RADIATOR & STANDARD SANITARY COMPANY; TRICO CONTRACTING,

INC., TRANSALTA CENTRALIA GENERATION, LLC; UNION CARBIDE CORPORATION; GENERAL

CONSTRUCTION CO.; WRIGHT SCHUCHART HARBOR CO., WEYERHAUSER COMPANY; ZURN

INDUSTRIES LLC; GOULDS PUMPS (IPG), INC.; FLETCHER — CONSTRUCTION COMPANY NORTH

AMERICA and PACIFICORP, dba PACIFIC POWER & LIGHT COMPANY, Respondents.

No. 40015-4-II.

Filed: January 11, 2011.

Court of Appeals of Washington, Division Two.

Counsel for Appellant(s), Matthew Phineas Bergman, Bergman & Frockt, 614 1st Ave Fl 4, Seattle, WA, 98104-2233. David S Frockt, Bergman & Frockt PLLC, 614 First Ave, 3rd Floor, Seattle, WA, 98104-2233.

Brian F Ladenburg, Bergman Draper & Frockt, P.S., 614 1st Ave Fl 3, Seattle, WA, 98104-2233.

Philip Albert Talmadge, Talmadge/Fitzpatrick, 18010 Southcenter Pkwy, Tukwila, WA, 98188-4630.

Sidney Charlotte Tribe, Talmadge/Fitzpatrick, 18010 Southcenter Pkwy, Tukwila, WA, 98188-4630.

Counsel for Respondent(s), Robert Gregory Andre', Attorney at Law, 1601 5th Ave Ste 2100, Seattle, WA, 98101-1686.

Aaron Paul Riensche, Ogden Murphy Wallace PLLC, 1601 5th Ave Ste 2100, Seattle, WA, 98101-1686.

UNPUBLISHED OPINION

WORSWICK, A.C.J.

The Arnolds appeal from the trial court's denial of its CR 60(b) motion to vacate based on newly found evidence. The Arnolds argue that evidence of a statutory duty under the federal Walsh-Healey Act, 41 U.S.C. § 35, should have compelled the trial court to grant its motion. In light of this court's recent holding in Arnold v. Saberhagen Holdings, Inc., 157 Wn. App. 649, 240 P.3d 162 (2010) (Arnold I) establishing law of the case, we affirm.

FACTS

This case is the second appeal stemming from a suit against Lockheed Shipbuilding Corporation (Lockheed) and a series of other companies, including Saberhagen Holdings, Inc. (Saberhagen) for asbestos-related injury claims. In the first appeal, this court reversed a summary judgment order granted in favor of Lockheed. This appeal arises out of the trial court's denial of a CR 60(b)(3)[1] motion to vacate the trial court's original summary judgment order based on new evidence.[2] Reuben Arnold died of mesothelioma in March 2008 and his son Daniel also recently died from it. Reuben worked as an insulator with asbestos and was exposed to asbestos at several sites, including Lockheed Shipyard. The plaintiffs in this case sued Lockheed both for Reuben's exposure directly and Daniel's exposure through his father.

Lockheed moved for summary judgment, which the trial court granted. After that, the Arnolds' attorneys uncovered new evidence unavailable to them at the time to support its contention that Lockheed owed a duty of care to Rueben Arnold and Daniel Arnold pursuant to its status as a government contractor under the Walsh-Healey Act.

After considering the plaintiff's CR 60(b)(3) motion, declarations in support and opposition to the motion, and Lockheed's response, the trial court denied it. The Arnolds then filed this appeal.

Between the filing of the parties' briefs, and our consideration of this appeal, this court issued its opinion in Arnold I and reversed much of the trial court's summary judgment order. 157 Wn. App. at 649. With regard to the issue of whether the Walsh-Healey Act creates a duty, however, the court reasoned:

Next, we conclude that the Walsh-Healey Act does not create a duty on the part of Lockheed that runs to the Arnolds. The Act requires parties who contract with the United States to manufacture or furnish materials, supplies, articles, or equipment in any amount exceeding $10,000 to agree to contract provisions that they will provide a safe workplace. 41 U.S.C. § 35(d). The Act gives the United States a cause of action for breach of contract, allowing it to seek liquidated damages and other statutory penalties. 41 U.S.C. § 36. Nowhere does the Act suggest that a third party may enforce a contractor's breach of the Act's workplace provisions through a negligence lawsuit. The primary case that the Arnolds rely on to assert that the Act gives rise to such a duty—Zimko v. American Cyanamid, 905 So.2d 465 (La. Ct.App. 2005)—is unpersuasive. The Zimko

court did not address the issue of third party enforcement, and it emphasized that a "no-duty defense" to a negligence claim is limited to exceptional situations under Louisiana law, which is not the case in

Washington. 905 So.2d at 481-83.

Arnold I, 157 Wn. App. at 671. In light of this, we ordered supplemental briefing on the question of whether the Arnolds' CR 60(b)-related appeal is now moot. The parties submitted supplemental briefs discussing that question. ANALYSIS

The Arnolds initially contend on appeal that (1) Lockheed secured summary judgment on the duty issue by convincing the trial court that it was not subject to the Walsh-Healey Act because it was not an employer, (2) the newly discovered contracts prove otherwise, and will probably change the outcome of summary judgment, (3) the contracts were not disclosed during discovery despite diligent efforts by the Arnolds' counsel, (4) the contracts are material, and (5) the trial court abused its discretion in failing to grant the Arnolds' CR 60(b)(3) motion for relief based on newly discovered evidence.

Under CR 60, "the court may relieve a party. . . from final judgment, order, or proceeding" for, among other things, "[n]ewly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)". CR 60(b)(3). This court reviews a trial court's denial of a CR 60(b) motion to vacate for abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). An abuse of discretion occurs when a trial court bases its decision on untenable grounds or untenable reasons. Noble v. Safe Harbor Family Pres. Trust, 167 Wn.2d 11, 17, 216 P.3d 1007 (2009). In Arnold I, we affirmed the trial court on the issue of whether the Walsh-Healey Act creates a duty in favor of the plaintiffs, holding that, as a matter of law, it does not. This established the law of the case on this issue. Law of the case refers to three doctrines: (1) appellate court decisions bind the trial court on remand, (2) jury instructions not objected to become the properly applicable law on appeal, and (3) a second appellate court will not revisit the holdings of the first appellate court in the same case. Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 113, 829 P.2d 746 (1992).

Reversing the trial court's CR 60(b)(3) order would not provide the relief the Arnolds seek because on remand the trial court is bound by our holding in Arnold I. And further, it is improper for us to revisit our holding in Arnold I, absent a showing of manifest error or an intervening change in the law, neither of which are present here. See First Small Business Investment Co. of Cal. v. Intercapital Corp. of Or., 108 Wn.2d 324, 333, 738 P.2d 263 (1987). Thus, the Arnolds' argument fails. Affirmed.

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 pursuant to RCW 2.06.040, it is so ordered.

ARMSTRONG and DEREN JJ., concur.

[1] CR 60(b) provides in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:

. . .

(3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b); . . .

[2] The Arnolds moved to consolidate both of these appeals but we denied the motion.

Sources

• The opinion on Google Scholar
• Washington asbestos laws
• Washington asbestos exposure sites