Brown v. Crown Cork & Seal Company (2005)

Our plain-English summary of Brown v. Crown Cork & Seal Company (Washington Court of Appeals, March 7, 2005).

Owen Brown, diagnosed with mesothelioma in October 2002, sued several companies, including Honeywell International, the successor to Bendix Corporation. He claimed he was exposed to asbestos from Bendix brake products while working at a service station in Trentwood, Washington, from 1947 to 1949, where he replaced car brakes about once or twice every two weeks and blew dust out of the brake drums. He worked on several makes of car and took old brake parts to the dealership for new ones. In his deposition he could not say who made the brake parts he handled. He believed they were Bendix only because Bendix was 'associated' with General Motors. Bendix was one of several brake lining suppliers to GM. The trial court granted summary judgment to Honeywell. The Court of Appeals affirmed. It said identification can be shown by direct or circumstantial evidence, but here nothing showed Bendix parts were at the station, and a jury would have had to speculate.

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, 1st Division
• Decided: March 7, 2005
• Docket: No. 54039-4-I
• Stage: Appeal from summary judgment
• State: Washington

Outcome. The Court of Appeals affirmed summary judgment for Honeywell International (successor to Bendix) because Brown offered no evidence that he was exposed to Bendix brake products.

What the court held. A plaintiff may identify the maker of an asbestos product through direct or circumstantial evidence, but an inference resting only on speculation or conjecture that the defendant's product was present cannot defeat summary judgment.

Issues decided: Product Identification.

The people and their exposure

• Owen L. Brown: mesothelioma

Who	Work	Where	When	Products
Owen L. Brown	service station worker replacing car brakes (auto mechanics and brake work)	service station, Trentwood, Trentwood, Washington	1947-1949	brakes, clutches and friction materials, Bendix brake products

The defendants

• Honeywell International, Inc., as successor-in-interest to Allied-Signal, Inc. (Bendix Corporation's successor) (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Lockwood v. AC & S, Inc. (Washington Supreme Court, 1987). The Washington Supreme Court affirmed the Court of Appeals and the trial court, leaving in place the $183,372 jury verdict for Albert Lockwood against Raymark Industries.

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.

OWEN L. BROWN, Appellant,

v.

CROWN CORK & SEAL COMPANY; GARLOCK SEALING TECHNOLOGIES, LLC; METROPOLITAN

LIFE INSURANCE CO.; FOSTER WHEELER ENERGY CORPORATION; SABERHAGEN HOLDINGS,

INC.; ASBESTOS CORPORATION, LTD.; UNIROYAL, INC..; E.J. BARTELLS SETTLEMENT TRUST;

CERTAIN-TEED CORPORATION; FLINTKOTE CORPORATION; UNION CARBIDE CORPORATION;

GENERAL ELECTRIC COMPANY; and ALLIED-SIGNAL, INC., Defendants.

HONEYWELL INTERNATIONAL, INC., as successor-in-interest to ALLIED-SIGNAL, INC.,

Respondent.

No. 54039-4-I

Filed: March 7, 2005

The Court of Appeals of Washington, Division One.

Counsel for Appellant(s), William Joel Rutzick, Attorney at Law, 500 Central Bldg, 810 3rd Ave, Seattle, WA 98104-1693. Counsel for Respondent(s), Shylah R Alfonso, Perkins Coie LLP, 1201 3rd Ave Ste 4800, Seattle, WA 98101-3099. Cori Gordon Moore, Perkins Coie LLP, 1201 3rd Ave Fl 40, Seattle, WA 98101-3099.

James Fitzgerald Williams, Perkins Coie, 1201 3rd Ave Fl 48, Seattle, WA 98101-3029.

Counsel for Other Parties, Barry Neal Mesher, Lane Powell PC, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338. Brian David Zeringer, Lane Powell PC, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338.

G William Shaw, Preston Gates & Ellis LLP, 925 4th Ave Ste 2900, Seattle, WA 98104-1158.

Melissa K Habeck, Forsberg & Umlauf, 900 4th Ave Ste 1700, Seattle, WA 98164-1050.

Richard George Gawlowski, Wilson Smith Cochran Dickerson, 1215 4th Ave Ste 1700, Seattle, WA 98161-1010. John Donahue Jr Wilson, Wilson Smith Cochran Dickerson, 1215 4th Ave Ste 1700, Seattle, WA 98161-1010. Neal J. Philip, Carney Badley Spellman, 700 5th Ave Ste 5800, Seattle, WA 98104-5017.

Timothy Kost Thorson, Carney Badley Spellman, 700 5th Ave Ste 5800, Seattle, WA 98104-5017.

Kelly Patrick Corr, Corr Cronin Michelson Baumgardner & Pree, 1001 4th Ave Ste 3900, Seattle, WA 98154-1051. Chris Robert Youtz, Sirianni Youtz Meier & Spoonemore, 719 2nd Ave Ste 1100, Seattle, WA 98104-1728. Diane J. Kero, Attorney at Law, One Union Sq, 600 University St Ste 2101, Seattle, WA 98101-4161.

Katelyn Elizabeth Morgaine, Attorney at Law, 2133 5th Ave Apt 306, Seattle, WA 98121-2517.

Steven David Robinson, Attorney at Law, 1201 3rd Ave Ste 2900, Seattle, WA 98101-3284.

Bruce Duplan Campbell, Perkins Coie LLP, 1201 3rd Ave Ste 4800, Seattle, WA 98101-3099.

Adam Nathan Steinman, University of Cincinnati, College of Law, PO Box 210040, Cincinnati, OH 45221-0040. Per Curiam.

Owen Brown brought this action against respondent Honeywell International, alleging that he contracted mesothelioma after exposure to asbestos manufactured by Bendix Corporation, Honeywell's predecessor-in-interest. Because the evidence fails

to create a reasonable inference that Brown was exposed to asbestos manufactured by Bendix, we affirm the trial court's dismissal on summary judgment.

FACTS

Appellant Owen Brown served in the navy from 1940 to 1946. From 1947 to 1949, he worked in a service station. He later worked in a shipyard and at various construction jobs.

In October 2002, Brown was diagnosed with mesothelioma, a form of cancer associated with exposure to asbestos. He then filed this action for personal injury against multiple defendants, alleging negligence, product liability, breach of warranty, and willful or wanton misconduct. At issue in this appeal is Brown's contention that he was exposed to asbestos from Bendix brake products while employed at a Trentwood, Washington, service station from 1947 to 1949.

Brown estimated that while working at the station, he replaced car brakes once or twice every two weeks using the following procedure: You'd take the wheels off, take the drums off, take an air hose and blow all the asbestos dust and things out of the — from around the back of the plate, remove the shoes, replace the old shoes with the new ones, place the drum back on, adjust the brakes to the drum, and get the air out of the cylinder.

Clerk's Papers, at 57. Brown recalled that he worked on various makes of cars, including General Motors, Chrysler, Plymouth, Dodge, and Ford. After removing old brakes from a car, Brown would take them to the dealership for that car and exchange them for new parts. From 1947 to 1950, Bendix was one of several suppliers of brake linings to GM. In an initial deposition, Brown stated he could not recall the brand name, manufacturer, or supplier of any brake parts that he removed or installed while working at the service station. He later explained the basis for his belief that Bendix had supplied some of the old brake parts that he removed from cars:

Q. You said in your earlier testimony that you did not know the brand name or manufacturer of the old brake materials that you removed; is that correct?

A. Most of them. There was a Bendix at one time, it seems to me, and —

Q. Do you remember —

A. I can't remember the others.

Q. Do you remember that time that you removed a Bendix product?

A. Well, I — no, I can't really say.

Q. How did you know it was Bendix?

A. Well, I went — seems to me I took them to the Chevrolet dealer.

Q. And how did that tell you that it was a Bendix product?

A. I really can't answer that.

Q. So other than the fact that you took the old brake work materials to the Chevy dealer, there was no other indication that it was a Bendix product?

A. Well, most — I think most General Motor products was Bendix, as I recall.

Q. How did you know that?

A. Well, the name rings a bell. It was associated with General Motors.

...

Q. I was talking about the old brake materials that you would remove from cars, and you said that you thought some of those would have been Bendix, correct?

A. Right.

Q. Okay. And your reason for believing that is because you would take them to Chevy dealers, and you were under the impression that GMC vehicles were associated with Bendix brakes; is that correct?

A. Right.

CP 58-59.

Brown also explained why he believed the new brake parts that he picked up at the GM dealership were made by Bendix: Q. {Y}ou stated that you believed that these were Bendix parts that you were putting on, these new parts were Bendix parts, because they were associated with GM is that correct?

A. That's what I thought. Yes.

Q. What do you mean by that exactly?

A. Well, the shoes, the hydraulic sounders, were made by Bendix, as I recall.

Q. And how did you know they were made by Bendix?

A. I don't know. They were just associated with General Motors at the time.

Q. Did someone tell you that?

A. I really can't answer that. It's just one of those things that ... (Pause.)

Q. Maybe you read it somewhere?

A. Could have.

Q. And you said most General Motor {sic} products? What type of products?

A. Bendix.

Q. Right. But you said it was associated with General Motors. Every General Motors product?

A. Yes.

Q. So all General Motors cars.

A. They were using Bendix at that time.

...

Q. Do you have any other indication, besides that association that you were aware of, that the products you were dealing with, the new brake products for GM cars, were Bendix products? ... And I'm asking if there's anything beyond that that told you were using Bendix products.

A. I guess not.

CP 89-90.

Honeywell moved for summary judgment. Concluding that the evidence failed to create a genuine factual issue that Brown had been exposed to asbestos from Bendix products, the trial court granted the motion.

STANDARD OF REVIEW

When reviewing a grant of summary judgment, an appellate court undertakes the same inquiry as the trial court.[1] We consider the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party.[2] Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'[3]

DECISION

On appeal, Brown contends the trial court erred in dismissing his claim on summary judgment. He argues that his recollection of brake replacement procedures at the service station was sufficient to support an inference that he was exposed to asbestos from Bendix products.

In order to maintain his cause of action, Brown was required to establish, among other things, the identity of the particular manufacturer of the product that caused his injury.[4] Under Washington law, a plaintiff need not personally identify the manufacturer of asbestos products to which he was exposed in order to recover.[5] Rather, direct or circumstantial evidence may be sufficient to identify the manufacturer of asbestos products present in a workplace.[6]

In this case, Brown failed to present any evidence, direct or circumstantial, that tended to identify Bendix as the manufacturer of brake products used in the Trentwood service station. The evidence was uncontroverted that Bendix was not the sole supplier of brake linings for GM cars. Nothing in the record indicates whether Bendix supplied the original equipment brake products for any of the GM cars that Brown serviced or whether the original brakes were still on those cars when Brown worked on them. Indeed, Brown could not recall who manufactured any of the old brake products that he removed from cars. Although Brown stated that he would exchange old brake parts at the GM dealership, he could not identify Bendix as the manufacturer of any replacement parts that he installed. Even when these circumstances are viewed in the light most favorable to the Brown, they do not support an inference that he was exposed to asbestos from Bendix products.

Brown relies on his deposition testimony that the brake shoes `were made by Bendix, as I recall,' that GM was `using Bendix at that time,' and that he was `sure' that he was obtaining Bendix parts from GM dealerships. But these statements cannot be viewed in isolation. Brown repeatedly acknowledged that he was relying on his belief that Bendix was `associated' with GM, not on any recollection of having worked with Bendix products. Under the circumstances, the evidence established nothing more than an inference that Bendix could have supplied some of the brake parts. In order to place Bendix brake parts in the Trentwood service station, the trier of fact would have had to rely solely on speculation or conjecture. Reliance on speculation is insufficient to defeat summary judgment.[7] Because the evidence failed to raise a genuine factual issue as to whether Brown was exposed to Bendix products, the trial court properly entered summary judgment.

Affirmed.

BAKER, ELLINGTON and AGID, JJ.

[1] Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).

[2] Schaaf v. Highfield, 127 Wn.2d 17, 21, 896 P.2d 665 (1995).

[3] CR 56(c); White v. State, 131 Wn.2d 1, 9, 929 P.2d 396 (1997).

[4] Lockwood v. AC&S, Inc., 109 Wn.2d 235, 245, 744 P.2d 605 (1987).

[5] Lockwood, 109 Wn.2d at 246.

[6] See Lockwood, 109 Wn.2d at 247 (testimony from other workers placing a manufacturer's product at defendant's work site, along with expert testimony about asbestos drifting, sufficient to permit reasonable inference that defendant was exposed to the manufacturer's product); see also Van Hout v. Celotex Corp., 121 Wn.2d 697, 706-07, 853 P.2d 908 (1993) (testimony by witnesses that defendant's products were used on the ships that plaintiff worked on was sufficient to support the verdict).

[7] See Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).

Sources

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