On May 29, 2025, the Washington Supreme Court overturned its own precedent, stripping an employer of Workers' Compensation Immunity for asbestos claims by expanding the Deliberate Injury exception. The court held that mere "virtual certainty" that an injury could result, as opposed to the statutorily required "deliberate intention ... to produce injury," was sufficient to strip immunity in asbestos-related cancer cases. This ruling will likely result in a dramatic increase in liability for employers in Washington State whose employees may have been exposed to asbestos. The opinion also leaves open the potential for expanded liability for other, non-asbestos-related, long latency claims.
Background
In Cockrum v. C.H. Murphy/Clark-Ullman,
Inc., the plaintiff worked at the Alcoa Wenatchee Works
aluminum smelter in Wenatchee, Washington, from 1967 to 1997. The
facility is known to have contained both chrysotile and amphibole
asbestos. Alcoa instituted a medical monitoring program in 1953 to
screen their employees for asbestos-related disease, including
screening for "pleural plaques ... and early
mesothelioma." An internal 1982 memorandum states that
"for a number of years, Alcoa has recognized the very serious
potential health hazard represented by the various forms of
asbestos use in our plant. Exposure to asbestos fibers can lead to
asbestosis and various forms of cancer."
Conversely, the plaintiff's expert testified that "asbestos-related disease is never certain to result from asbestos exposure" and that this expert was "not aware of any carcinogen for which exposure at a particular dose is medically certain to cause cancer." Despite this expert testimony, the Washington Supreme Court concluded that, based on these facts, "Alcoa ultimately knew of the harm of asbestos in its facilities prior to and contemporaneous with Cockrum's exposures," and that, therefore, the plaintiff had met the knowledge prong of the Deliberate Injury exception to Workers' Compensation Immunity by way of a newly created multifactor test.
New Non-Exclusive Multifactor Test
The court articulated a new non-exclusive multifactor test for
whether the knowledge component of the Deliberate Injury exception
can be met:
- The employer's knowledge of ongoing, repeated development of symptoms known to be associated with the development of latent disease over time
- The employer's knowledge of symptoms developing in employees similarly situated to the plaintiff-employee
- The timing of such symptoms developing prior to or contemporaneous with the plaintiff-employee's exposure(s)
- Whether the exposure arises from a common major cause within the employer's control.
After the court considers these non-exclusive factors to establish knowledge, the court must still then perform the second part of the statutory test, determining if the employer disregarded this knowledge to cause an intentional injury to the plaintiff.
The Washington Supreme Court synthesized their new multifactor test down, concluding that "a plaintiff can satisfy the Deliberate Injury exception ... if they demonstrate the employer had actual knowledge that latent diseases are virtually certain to occur and willfully disregard such knowledge." Based on this, the Washington Supreme Court overturned the grant of summary judgment in favor of the employer and remanded the case back to the Superior Court to consider the second prong of the test, whether the employer disregarded their own knowledge by failing to take "known remedial measures within its control."
Takeaway
This opinion represents a sea change in the potential for
Washington employers, long sheltered by immunity, to face
significant liability for asbestos disease in their own workforce.
We can expect an increase in new filings against previously immune
employer defendants, which should have an outsized impact on
premises defendants and manufacturers with facilities within
Washington State.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
