Montaney v. J-M Manufacturing Co.
Montaney v. J-M Manufacturing Co.
Opinion of the Court
¶1 The trial court granted summary judgment dismissing Thomas and Maijorie Montaney’s claim against J-M Manufacturing (JMM) arising from Thomas’s exposure to asbestos from pipe JMM sold. At the summary judgment hearing, evidence was presented that (1) Thomas Montaney was repeatedly exposed to asbestos dust while working with asbestos concrete (A/C) pipe between 1972 and 1990; (2) he purchased A/C pipe from a single distributor, Pacific Water Works, into the 1980s; and (3) Pacific carried A/C pipe sold by JMM in 1983 and 1984. This evidence is sufficient for a jury to reasonably infer that Montaney was exposed to A/C pipe sold by JMM. We reverse.
FACTS
¶2 In 2012, Thomas Montaney died of mesothelioma. Before his death, he and his wife filed an asbestos products liability lawsuit against nine defendants, including JMM.
¶4 Johns-Manville manufactured A/C “Transite” pipe for decades before it sold its pipe manufacturing operations in December 1982. JMM purchased Johns-Manville’s PVC
¶5 JMM acknowledges that it sold A/C pipe under the trade name J-M Transite from January 1,1983 until 1988. JMM conceded at oral argument that it may have sold the existing Johns-Manville A/C Transite pipe in stock as of January 1983, as well as A/C pipe manufactured by J-M A/C Pipe Corporation after January 1983. Pacific sold A/C pipe distributed by JMM.
¶6 Montaney was responsible for selecting and purchasing replacement pipe and supplies. He had only two sources for pipe. He either obtained leftovers from contractors or purchased new pipe exclusively from Pacific. Montaney explained in his deposition that he purchased or used
¶7 JMM successfully moved for summary judgment dismissing Montaney’s claim.
ANALYSIS
¶8 “Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.”
¶9 Asbestos plaintiffs in Washington may establish exposure to á defendant’s product through direct or circumstantial evidence.
¶10 In Lockwood v. AC&S, Inc., our Supreme Court held that evidence supplied by the plaintiff’s coworkers supported the inference that the defendant’s product was used on a ship where Lockwood worked.
Because of the long latency period of asbestosis, the plaintiff’s ability to recall specific brands by the time he brings an action will be seriously impaired. A plaintiff who did not work directly with the asbestos products would have further difficulties in personally identifying the manufacturers of such products. The problems of identification are even greater when the plaintiff has been exposed at more than one jobsite and to more than one manufacturer’s product.[12 ]
¶11 Applying the Lockwood standard, in Van Hout v. Celotex Corp., the court held that sufficient evidence supported the jury’s verdict for an asbestos plaintiff, where the plaintiff testified that he worked in asbestos dust on ships and witnesses placed the defendant’s asbestos-containing insulation materials on those ships.
¶12 This court’s opinion in Berry v. Crown Cork & Seal Co. is instructive as to the evidence necessary to survive a
¶13 The facts of this case resemble those in Berry, where there was evidence that the plaintiff worked around materials that created asbestos dust and that certain brands of asbestos-containing products were commonly used at the work site, and there is evidence allowing the reasonable inference that the defendant distributed or sold an asbestos-containing product used at the plaintiff’s work site.
¶14 Montaney presented evidence that (1) he worked at the water district from 1972 until 1995; (2) at times in the course of his work, he performed approximately 10 repair jobs per month using A/C pipe; (3) he used A/C pipe for repairs until 1990 or shortly thereafter; he stopped using A/C pipe in 1990; and (4) he was exposed to airborne, asbestos-containing dust.
¶15 Montaney testified that he obtained pipe from only two sources: contractors and Pacific. He exclusively used pipe manufactured by Certainteed and Johns-Manville, and purchased Johns-Manville A/C pipe from Pacific. Although he did not buy A/C pipe often, he purchased new A/C pipe from Pacific “into the 1980s.”
¶16 From this evidence, a jury could reasonably infer that Montaney purchased new A/C pipe from Pacific in 1983 and 1984, and that the new pipe purchased then would have included A/C pipe sold by JMM. A jury could also reasonably infer that Montaney used the A/C pipe for repairs between 1983 and the early 1990s, when he stopped using A/C pipe altogether. This is enough to establish a prima facie case.
¶17 Significantly, the Berry court rejected an argument similar to JMM’s here, that the inference of exposure by defendant’s products was based on “impermissible speculation.”
¶18 JMM concedes that Montaney purchased new A/C pipe into the 1980s but argues that he did not clarify exactly how far into the 1980s such purchases occurred. But the inferences from Montaney’s statement must be drawn in his favor. Summary judgment was not appropriate.
¶19 Both parties identify potential confusion as to the distinction between Johns-Manville, JMM, and J-M A/C Pipe Corporation.
¶20 JMM’s remaining arguments are premised on evidence that appears to contradict Montaney’s account. First, JMM argues that a document referring to the water district keeping an inventory of A/C pipe that was claimed to be at least 30 years old when it was abated in 1993 supports summary judgment. But the document does not purport to account for all of the A/C pipe that Montaney worked with during his employment and, at most, raises a question of fact. Second, JMM argues that Montaney’s coworkers’ testimony establishes that the water district stopped purchasing new A/C pipe prior to 1983. But contradictory evidence on material factual issues precludes summary judgment. To the extent that Hunkeler’s and Thompson’s testimony contradicts Montaney’s testimony, the dispute must be resolved by the trier of fact.
¶21 Montaney’s evidence supports the reasonable inference that JMM sold A/C pipe through Pacific between 1983 and 1984 that reached Montaney’s work site and was used before 1990. Coupled with the abundant evidence of Montaney’s
¶22 Reversed.
Montaney was exposed to asbestos dust throughout his life, including as a child when his father worked with asbestos. He was also exposed to asbestos while working in shipyards in the 1960s. However, his most intense exposure came from his work with A/C pipe while employed with the water district.
Polyvinyl chloride.
Pacific’s vice president of operations during the 1980s, William Davis, testified in earlier trial proceedings that Pacific did business with almost all the water districts from the Canadian border to Medford, Oregon, a territory that includes the Cedar River Water and Sewer District.
Montaney’s estate settled with the other defendants prior to trial.
Cerrillo v. Esparza, 158 Wn.2d 194, 200, 142 P.3d 155 (2006).
Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 295, 996 P.2d 582 (2000).
Allen v. Asbestos Corp., 138 Wn. App. 564, 571, 157 P.3d 406 (2007).
Morgan v. Aurora Pump Co., 159 Wn. App. 724, 729, 248 P.3d 1052 (2011).
Id. (alteration in original) (quoting Lockwood v. AC&S, Inc., 109 Wn.2d 235, 246-47, 744 P.2d 605 (1987)).
See Van Hout v. Celotex Corp., 121 Wn.2d 697, 706-07, 853 P.2d 908 (1993); Lockwood, 109 Wn.2d at 246-47.
109 Wn.2d 235, 247, 744 P.2d 605 (1987).
121 Wn.2d 697, 707, 853 P.2d 908 (1993).
138 Wn. App. 564, 571, 157 P.3d 406 (2007).
103 Wn. App. 312, 14 P.3d 789 (2000).
Id. at 315-18.
Id.
Clerk’s Papers at 131.
Berry, 103 Wn. App. at 324.
See id. at 324-25 (“The extent to which [defendant] supplied the products as compared with other distributors is irrelevant for purposes of summary judgment.”).
In 1982, JMM purchased Johns-Manville’s PVC pipe business. Simultaneously, Johns-Manville’s A/C pipe manufacturing concern, was spun off to a new entity, J-M A/C Pipe Corporation. Thereafter, JMM became the exclusive supplier of Johns-Manville’s asbestos-containing Transite pipe on January 1, 1983.
JMM contends that Johns-Manville used both JM and J-M as trade dressing, as evidenced by advertisements. In the journals submitted by JMM in its original reply brief, the logo JM appears on a coupling attached to the end of a piece of Transite pipe. Similarly, the logo J-M appears on a piece of Blue Brute PVC pipe. Neither of these pictures shed any light on the issue of whether J-M actually was stamped on Transite pipe. Accordingly, it argues, testimony that the J-M trade dressing appeared on A/C pipe used in Montaney’s workplace does not compel the conclusion that the pipe was distributed by JMM.
Montaney also presented evidence that JMM corporate representative Jim Reichert testified in a prior lawsuit that JMM manufactured A/C pipe under the name J-M Transite.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.