Hall v. Warren Pumps 2/26/10 CA2/2

SUPREME COURT CASES

Laws-info.com » Cases » California » Court of Appeal » 2010 » Hall v. Warren Pumps 2/26/10 CA2/2

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B208275

Case Date: 05/13/2010

Preview:Filed 2/16/10 Hall v. Warren Pumps CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION TWO

BERTIE G. HALL, Plaintiff and Appellant, v. WARREN PUMPS LLC et al., Defendants and Respondents.

B208275 (Los Angeles County Super. Ct. No. BC373038)

APPEAL from a judgment of the Superior Court of Los Angeles County. Terry Green, Judge. Affirmed. Waters, Kraus & Paul, Paul C. Cook, Michael B. Gurien; The Ehrlich Law Firm, Jeffrey I. Ehrlich for Plaintiff and Appellant. Carroll, Burdick & McDonough, James P. Cunningham, Laurie J. Hepler for Defendant and Respondent Warren Pumps LLC. K&L Gates, Robert E. Feyder, Geoffrey M. Davis, Nicholas P. Vari, Michael J. Ross for Defendant and Respondent Crane Co. Howard Rome Martin & Ridley, Henry D. Rome, Bobbie R. Bailey, Lisa K. Rauch for Defendant and Respondent IMO Industries Inc. Morgan, Lewis & Bockius, Joseph Duffy, P. Daffodil Tyminski, Noelle B. McCall for Defendant and Respondent Yarway Corporation. Shook, Hardy & Bacon, Mark A. Behrens, Christopher E. Appel, Patrick J. Gregory for Coalition for Litigation Justice, Inc., Chamber of Commerce of the United States of America, National Association of Manufacturers, Association of California Insurance Companies, American Insurance Association, American Petroleum Institute and American Chemistry Council, as Amici Curiae on behalf Defendants and Respondents.

___________________________________________________

2

Alfred Hall, husband of appellant Bertie Hall, died of mesothelioma caused by workplace exposure to asbestos. Appellant is suing four manufacturers of pumps and valves for Mr. Halls injuries. None of the defendants manufacture asbestos products. The trial court gave judgment to defendants. The court found that defendants had no liability because they did not manufacture, sell or distribute the asbestos products that injured Mr. Hall, nor did they have a duty to warn about using asbestos products with their pumps and valves. The court rejected appellants theory that defendants could be liable for harmful asbestos products they neither made nor sold if they could foresee the use of such products with their equipment. We agree, and affirm the judgment. FACTS Alfred Hall (Decedent) joined the United States Navy in 1944. Starting in 1945, Decedent served as a fireman and machinist mate on numerous Navy ships, working in boiler rooms and engine rooms. He retired from military service in 1964. Decedent worked as a stationary engineer at a B.F. Goodrich (Goodrich) tire manufacturing facility from 1969 until 1988. He was diagnosed with malignant pleural mesothelioma in January 2007, and died on August 31, 2008. During his military and civilian careers, Decedent worked on high temperature pumps and valves (the Equipment), which are incorporated into elaborate steam propulsion systems. The Equipment is metal, and requires the use of insulation: absent insulation, workers would be exposed to dangerously hot metal surfaces and energy efficiency would be compromised. Packing is used to seal internal moving parts of the Equipment and prevent leakage. Gaskets are used to create a seal between a valve and adjacent piping. The "predominant insulation" used during Decedents career was asbestos. As a result, Decedent applied asbestos gaskets, asbestos packing, and asbestos insulation (Asbestos Products) to the Equipment. Asbestos Products had to be removed from in and around the Equipment during routine maintenance. In the course of his work, Decedent removed gaskets, insulation and packing material by scraping them off or digging into them with knives, screwdrivers, paint scrapers and wire brushes, releasing dust particles into the air. The 3

gaskets were practically "cooked on" by the high temperatures, and were difficult to remove. The same was true for the packing material. Until the mid 1950s, when asbestos blanketing came into use, Decedent mixed dry asbestos powder in a bucket to form a mortar that was applied as insulation. Respondents manufactured the Equipment that Decedent came in contact with during his military and civilian work.1 Respondents did not design the steam propulsion systems into which their Equipment was incorporated: the Navy designs its ships, then solicits bids for individual pieces of machinery. Respondents did not manufacture or supply any Asbestos Products that Decedent was exposed to in his work. The original Equipment shipped by respondents may have contained Asbestos Products manufactured by third parties; however, appellant concedes that she cannot show that Decedent had "exposure to asbestos containing materials originally supplied by any of the Respondents." Given the age of the Equipment, the original Asbestos Products that respondents shipped with the Equipment had been replaced long before Decedent ever worked on the Equipment. Indeed, Decedent testified that the Asbestos Products on the ships where he worked "had been changed a thousand times before I got there." The replacement Asbestos Products that Decedent was exposed to were manufactured and supplied to the Navy and Goodrich by companies that are not parties to this appeal. Appellants counsel conceded at trial that there is no evidence that respondents supplied asbestos replacement parts to Decedents employers.2 A manual issued by the Navy Bureau of Ships stated that engine steam cylinders, valve chests, and other steam enclosing surfaces "should have" asbestos-containing insulation. Following the Navys manual, some (but not all) of respondents manuals

1

Respondents are Warren Pumps LLC; Yarway Corporation; IMO Industries Inc.; and Crane Co. In her opening brief, appellant agrees that respondents "did not sell or supply the asbestos insulation and flange gaskets used on their equipment."
2

4

recommended the use of Asbestos Products with the Equipment. Respondents shipboard manuals were written to comply with military specifications. Equipment that did not conform to Navy specifications was rejected. According to appellants expert in naval engineering, respondents could have recommended non-asbestos products for use with the Equipment. Asbestos Products were one of the acceptable alternatives permitted by the Navy Bureau of Ships. The Navy "usually" applied asbestos insulation on high temperature equipment, and purchased Asbestos Products from third parties as replacement parts for use in conjunction with the Equipment. By the same token, the Navy purchased (and Decedent also used) non-asbestos gaskets, packing and sealing materials made from rubber, cork, metal, plastic, cotton and so on. The Navy retained ultimate authority to decide whether to purchase asbestos or non-asbestos replacement products. The replacement Asbestos Products purchased by the Navy were the products to which Decedent was exposed. While the Navy supplied its ships with asbestos insulation, gaskets and packing, Decedent was never warned about the dangers of asbestos. The Navy continued to use Asbestos Products as replacement parts until the 1980s, at which point it switched to non-asbestos components for use on the Equipment. PROCEDURAL HISTORY The Halls filed this tort suit in 2007. The trial court bifurcated proceedings. The threshold issue presented for the courts determination was whether the Halls could make a showing of exposure to asbestos-containing products for which respondents could be held responsible. The court conducted a seven-day bench trial on this issue. At the conclusion of the Halls case, respondents made a motion for judgment. The court found that all of the Asbestos Products that Decedent was exposed to were manufactured by third parties, and purchased and supplied by the Navy or by Goodrich. Respondents had no control over the type of insulation, packing or gaskets purchased and used by Decedents employers. The court concluded that there was nothing inherently dangerous about the Equipment manufactured by respondents. As a result, the Halls failed to establish threshold exposure to Asbestos Products attributable to respondents. 5

Further, respondents duty to warn about the risks of asbestos ended after removal of the Asbestos Products originally shipped with the Equipment. DISCUSSION 1. Standard of Review Respondents moved for judgment after the Halls presented their evidence during the bench trial. (Code Civ. Proc.,

Download Hall v. Warren Pumps 2/26/10 CA2/2.pdf