Divided Washington Court Again Refuses to Adopt Substantially Certain Test

A divided Supreme Court of Washington, noting that in Birklid v. Boeing Co., 127 Wn.2d 853, 904 P.2d 278 (1995) [see Larson’s Workers’ Compensation Law, § 103.04[3][c]], it had earlier refused to adopt the “substantially certain” test in defining deliberate injuries within the workers’ compensation context, held a Boeing aircraft worker failed to raise a material issue of fact as to whether Boeing had actual knowledge of certain injury resulting from asbestos exposure at its facility [see Walston v. Boeing Co., 2014 Wash. LEXIS 764 (Sept. 18, 2014)]. Plaintiff contended her husband, a Boeing employee, died after contracting mesothelioma after being exposed to asbestos at Boeing’s hammer shop in 1985 during a special maintenance operation. Plaintiff contended Boeing knew the maintenance operation was hazardous, since Boeing’s maintenance workers wore protective clothing and used ventilators while performing their work. Plaintiff’s husband and others worked in the area below the ceiling without special clothing or breathing equipment.

The majority of the high court agreed that summary judgment in favor of Boeing was appropriate, that as the experts in the case had acknowledged, asbestos exposure is not certain to cause mesothelioma or any other disease. The majority added that asbestos exposure does cause a risk of disease, but that is insufficient to meet the Birklid standard. The widow was limited to relief under the state’s Workers’ Compensation Act.