IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RONALD FAGG, Appellant,

v. 

### BARTELLSASBESTOS SETTLEMENT TRUST; CATERPILLAR, INC., CERTAINTEED CNH AMERICA LLC; .; DUNN LUMBER .; E.J. BARTELL'S; EXXONMOBIL OIL CORPORATION; H. D. FOWLER COMPANY; MOBIL OIL CORPORATION PACIFIC WATER WORKS SUPPLY COMPANY, INC.; and FIFTH DOE through ONE HUNDREDTH DOE; CORPORATION; CSKAUTO, INC. COMPANY, INC.

Respondents. No. 69719-6-1 DIVISION ONE

PUBLISHED OPINION C3 r- - rn _. CO -;.•.•

o OS

FILED: December 8. 2014 Spearman j, C.J.

— Over the course of several decades, Ronald Fagg was exposed to various asbestos-containing products at work sites, during personal automotive repairs, during time vacationing and living in the Libby, Montana area. He
was later diagnosed with asbestosis and asbestos related pleural disease. In this action, he seeks damages from a number of seller and manufacturer defendants, who he alleges are liable for his injuries under common law theories of negligence and strict liability. Two ofthe seller defendants, Pacific WaterWorks Supply, Inc. (PWWS) and CSK Auto, Inc. (CSK), moved for summaryjudgment on the grounds that Fagg's


### common law claims against them were barred by the Washington Product Liability Act, ch. 7.72 RCW (WPLA). The trial court agreed and dismissed the claims as to bothNo. 69719-6-1/2 

## defendants. We Affirm thetrial courtwith respectto PWWS, butreverse with respectto CSK and remand for further proceedings.

In October asbestos related
common law neg FACTS 2009, the appellant, Ronald Fagg, was diagnosed with asbestosis and pleural disease. He initiated this action on January 29, 2010, alleging igence and strict liability against a number of defendants who were allegedly responsible for his exposure to asbestos, including the respondents, PWWS and CSK.1 Fagg claimed that the defendants werejointly and severally liable for his asbestos related injuries, which resulted from (1) exposure to various asbestoscontaining products during his employment as a construction worker, naval machinist mate, and heavy equipment operator from 1963 through the late 1970s; (2) personal automotive repairjobs using asbestos-containing parts between the 1950s and 1980s; (3) work with cementitious asbestos-containing pipe (transite) over a period of approximately ten and a half years, beginning in the late 1970s; and (4) vacationing in the vicinity ofthe Libby, Montana superfund site from the early 1980s to 1990s, and 

### living there from £001 to 2007. PWWS and CSK each moved for summaryjudgment, claiming that Fagg's negligence and strict liabilityclaims were precluded by the WPLA, that they are immune from liability under the WPLA, and that Fagg failed to establish that exposure to PWWS

1 PWWS was added by amended complaint on September 20, 2010. Bartell Asbestos Settlement Trust; Certainteed Corporation, Dunn Lumber Company, Inc., E.J. Bartell's, CNH America LLC, Caterpillar Inc., ExxonMobil OilCorporation, H.D. Fowler Company, Mobil OilCorporation and Fifth Doe through One Hundred Doe are not parties to this appeal.No. 69719-6-1/3 

### and CSK product? was a substantial factor incausing his disease. The trial court granted PWWS's and CSK's motions for summaryjudgment on the firstground but did not rule on the second. Fagg appeals. Faqq's Exposure to Asbestos-Containing Products Sold bv PWWS 

### For sixmopths during 1979-1980, Faggworked forC&D Enterprises (C&D) installingtransite Watermains and hydrants. From 1980 to 1985 he worked for Lake Washington Sewer and Water (Lake Washington), as a backhoe operator and repaired transite pipes. From 1985 to 1990, he worked as a backhoe operatorfor the City of 

### Kirkland. Each ofthesejobs involved cutting twenty foot lengths oftransite pipe and beveling the edges with a power saw. Each cut and bevel created large quantities of dust. Fagg personally made forty to fifty cuts and bevels oftransite pipe during his employment with C&D. At Lake Washington, he made or watched from a close distance
over one hundred cuts and fiftybevels oftransite pipe, about half ofwhich involved pipes already in the ground and half of which involved new pipes. CP at 427-28, 430-31. At the City of Kirkland, he made approximately fifteen cuts and ten bevels oftransite pipe. Fagg testi Washington, and ied that the new transite pipe he worked with at C&D, Lake City of Kirkland came from two different suppliers, one ofwhich was PWWS, which began selling transite pipe in 1957 or 1958. Inthe early to mid-1960s, PWWS made deliveries oftransite pipe to individual customers. In 1967 or 1968, PWWS sold its only delivery truck and permanently ceased its delivery service. But customers were still able to purchase transite pipe from PWWS retail outlets and 

### transportthe productthemselves. PWWS offered evidence thatit stopped sellingNo. 69719-6-1/4 

### transite pipe and |>therasbestos-containing products inWashington and Oregon in
1984. Fagg testifed that, between 1979 and 1980, while he was employed with C&D, from time to time outlet. He did not also testified that understood thosehe would personally pick up transite pipe from PWWS's Woodinville visit either of PWWS's other branches in Seattle or Tacoma. Fagg trucks would deliver transite pipe to the C&D storage yard. He trucks, which were operated by C&D's drivers, were carrying transite 

### from PWWS. Fagg estimated that at least twenty or thirty ofthe cuts and ten ofthe bevels he made while employed by C&D involved transite pipe sourced from PWWS. PWWS contradicted Fagg's testimony with evidence that its Woodinville location did not open until 1981 at the earliest and that, before 1981, PWWS only sold transite pipe out of its Seattle and Tacoma locations. 

### Fagg also estimated that most ofthe new transite he worked with at Lake 

### Washington had bornefrom PWWSbecause they "used to give...the best deal" and because of his conversations at the time ofdelivery with Lake Washington's truck driver. Clerk's Papers (CP) at 429-30. 

### Disputing pWWS's contention that itstopped selling transite inWashington and 

## Oregon in 1984, ^agg testified thattruckdrivers employed by LakeWashington and the 

## CityofKirkland d delivered transite from PWWS tohis work sitesduring 1984-90. Fagg's Exposure to Asbestos-Containing Products Sold by CSK 

### Itis undisputed that Fagg used auto parts sold byAl's Auto Supply and Schuck's Auto Supply—subsidiaries ofCSK—inconnection with brake, clutch, or gasket repair work on several Automobiles from the 1950s to the 1980s. The record shows that FaggNo. 69719-6-1/5 

### did fourteen repair jobs during that time.2 According to Fagg's unrebutted testimony,
sevenjobs occurred before 1981 and one after July 26, 1981. Ofthe remaining sixjobs, four occurred during the early 1980s and one occurred inthe late 1970s or early 1980s. Fagg was unable to estimate an approximate date for the remaining job. 

### Faggalwaysbought newBendix brakes andVictor gaskets at eitherAl'sor Schuck's. He never removed any Bendix orVictor parts that he had previously installed. Nor did he arc or grind any of the new Bendix or Victor parts he had purchased. In general, he noticed no dust emitting from the new parts. But, "once in a blue moon" he would take a few minutes to sand a small "bump" on a brake part, which would produce 

### a miniscule amountof dust. CP at 1026. Fagg also used compressed air to blow away

2Although the parties disagree on the precise number of repairs Fagg made using CSK parts, the 

## recordfrom belowdisclosesthefollowing: 1. In the 19ios, he replaced the brakes on his mother's 1949 Ford. CP at859-60. 2. Inthe 1950s, he adjusted the clutch on a 1949 Ford pickup. CP at 876-77. 

## 3. Inthelate^ 1950s, hereplacedthebrakesona1953Ford. CPat862-63. 4. Inthe early 1960s, he replaced the brakes and did two exhaust manifold gasket replacements on a 1957 Ford Ranchero. CP at 871-73. 

## 5. Intheearjlytomid-1960s, Hereplacedthebrakesandtwoexhaustmanifoldgaskets on a 1956 Ford pickup. CP at 863-64. 6. Inthe 1960s, he replaced the brakes on a 1956 Ford pickup. CP at 865-66. 7. In the 19<p0s, hereplaced the brakeson a second 1957 Ford. CP at877-78. 8. Atsome point after 1968, he replaced the brakes on a 1957 Ford station wagon. CP at 875-76. 9. Inthe late 1970s or early 1980s, he replaced the brakes on a 1965 Volkswagen. CP at 873-74. 

### 10. During thJe early 1980s, hereplaced the brakes on a 1961 Ford. CP at870-71. 11. Sometime in the 1980s, he removed the motor from a 1964 Mustang and put it into a 1956 Ford pickup. He also installed two exhaust manifold gaskets in the Mustang. CP at 868-69. 12. Inthe early 1980s, he replaced twoexhaust manifoldgaskets on a 1976 Ford. CP at 874-75. 13. Sometime between 1982 and 1985, when he was living in Monroe, Washington, he replaced the brakes and clutch on a second 1956 Ford pickup. CP at 867-68; 1033- 34. 14. At an unspecified time, he replaced the brakes on a 1965 Mustang that he purchased in the 1970s and owned for six or seven years. CP at 868.No. 69719-6-1/6 

### larger amounts ofdust from previously-installed brake shoes and clutch assemblies. This resulted in "[k]ind of a cloud from all the dust that was in—that was in the brake shoes." CP at 861 Fagg produced evidence that Bendix brakes contained chrysotile asbestos until at least 1985 and that Victor gaskets contained asbestos until 1988. He also submitted
a declaration by his expert, Charles Ay, which concluded, without quantifying the extent of Fagg's alleged exposure to asbestos fibers from these products, that "the installation

i ofthe Bendix brakes and Victor gaskets caused the release of respirable asbestos fibers into the air, and Mr. Fagg was injuriously exposed to respirable asbestos dust and fibers as a result.'! CP at 373-374. Fa;gg's Other Exposures to Asbestos-Containing Products In addition to his exposure to PWWS and CSK products, Fagg acknowledged extensive exposure to asbestos-containing products from other sources. From 1965- 

### 1968, he served iji the navy as a machinist mate and was exposed on a daily basis to 

### asbestos from th^ gaskets and packing in pumps and valves that herepaired. As apart of his job, he cut away asbestos-containing insulation on steam lines and cut and installed new asbestos-containing insulation. He was also present when boiler tenders 

### opened boilers and disturbed asbestos-containing refractory and insulation. Fagg also worked for Sunshine Construction from 1963-1965, the two years 

### before he entereq the Navy, and again from 1968-1972 or 1973. During those years he used an estimated 400 five gallon buckets ofasbestos-containing drywall compound manufactured by Kaiser Gypsum and sold to his employer by Dunn Lumber.No. 69719-6-1/7 After leaving Sunshine Construction in 1972 or 1973, Fagg went to work as an 

# equipmentoperatorforthe King Countyroaddepartment, wherehestayed approximately seyen years. Inthatjob he took equipment, case backhoes and caterpillar graders, to the repairfacility at least once a week. Once inthe facility, he was in close proximity to mechanics as they serviced the asbestos-containing brakes on the 

### equipment, grinding and sanding the brakes tofit, and usingcompressed air to blow out
the brake dust. 

### Lastly, beginning inthe early 1980s, Fagg would spend three months ofeach 

# yearvisitingtheL|bbyandTroy, Montanaarea; helivedinTroyyearroundfrom2001 until 2007. Over the past several decades, hundreds ofresidents of Libbyand the 

### of Troy have died and over 1,700 residents have been sickened as a contamination from W.R. Grace & Co.'s vermiculite mine.3 In 1999, neighboring town result of asbestos 

### shortly before Fagg moved to Troy, the Environmental Protection Agency (EPA) began cleanup efforts in the area. At the time, the measurable asbestos fiber level in the 

### ambient air in Libby was 10,000times greaterthan in 2009, and asbestosfibers were present in "garden soil" "driveway materials," and playgrounds. See Libbv Major Milestones, U.S. Protection Agency, http://www2.epa.gov/reoion8/libbv-maior

## milestones (lastundated Mar. 16, 2014); seealso, Andrew Schneider, UncivilAction: A

, Seattle Post-Intelligencer, Nov. 18,1999 (reporting that by 1975, Town Left To Die 

### "halfa million pounds ofasbestos a day were processed" in the mine, leading to "5,000

3 PWWS the Libbyarea under not challenge thenotes that we may takejudicial notice of the asbestos contamination and EPAeffortsin ER 201(b) because evidence of the contamination is in the public record. Fagg does coiirt's notice of this fact.No. 69719-6-1/8 

### Ibs./day ofasbestos" dust expelled per day). Libby was placed on the EPA's superfund list in 2002 and was declared a "Public Health Emergency" in2009.
DISCUSSION 

### We review the trial court's entry ofsummaryjudgment de novo. Ranger Ins. Co. 

## v. Pierce County, *164 Wn.2d 545, 552, 192 P.3d 886 (2008). Summaryjudgmentis proper if, viewing the facts and inferences in favor ofthe nonmoving party, there is no genuine issue ofmaterial fact and the moving party is entitled to judgment as a matter of law. ]d.; CR 56(c). Where liability depends upon a mixed question offact and law, and the facts are disputed, a motion for summaryjudgment should be denied. Rathvon
v. Columbia Pac. Airlines. 30 Wn. App. 193, 633 P.2d 122 (1981). Applicability of the WPLA Products liabilitycases inWashington are governed by the WPLA. The statute immunizes product sellers from product liability claims except under certain enumerated circumstances. It provides in relevant part: 

### (1) Except as provided insubsection (2) of this section, a product seller other than a manufacturer is liable to the claimant only ifthe claimant's harm was proximately caused by: (a) The negligence of such product seller; or (b) Bregch of an express warranty made by such product seller; or 

### (c) The intentionalmisrepresentation of facts about the product by such product seller or the intentional concealment of information about the product by such product seller. 

### RCW 7.72.040(1). The WPLA supplants common law claims or actions based on harm caused by a product that arise on or after its effective date, July 26, 1981. Macias v. Saberhagen Holdings, Inc., 175 Wn.2d 402, 408, 282 P.3d 1069 (2012) (citations 

### omitted). Insofar as a negligence claim is product based, the negligence theory is
subsumed within the WPLA product liabilityclaim. Jd. (Citations omitted).

8No. 69719-6-1/9 

### When a plaintiff's alleged exposure to injury-causing products is prolonged or continuous in nature, as in the present case, Washington courts consider when "substantially all" pfthe exposure occurred in determining when the claim arises. Macias, 175 Wn.2d at 408-09; Braaten v. Saberhagen Holdings, 165 Wn.2d 373, 381 n. 1, 4, 198 P.3d 493 (2008); Koker v. Armstrong, 60 Wn. App. 466, 472 n.4, 804 P.2d 659 (1991). The parties agree the WPLA applies unless "substantially all" ofthe exposure 

### occurred before July 26, 1981.4 There is also no dispute that ifthe WPLA applies, the respondents are irjimune from suit and Fagg's claims against them were properly dismissed. 

### Underthel^/lodel Business Corporation Act, theterm "substantially all" was "nearly all." See Model Bus. Corp. Act § 12.01 cmt. 1 (1984). Other accorded the term similar meaning. See e.g., Ice Service Co., Inc. v. Comm'r of Internal Revenue, 30 F.2d 230, 230 (2d Cir. 1929) (holding that substantially 

### all, inthe context bfwhen two corporations are affiliated for tax purposes, means all intended to mean jurisdictions have

except "a negligib e minority" or when a "practically negligible" amount remains); Hook
v. Astrue, 2010 WL 2929562, *4 (N.D. Ohio July 9, 2010) (holding, inthe context of

"This App. 579, 584-85, 91 P.2d 527 (1993), we asbestos occurred the exposure to decided the case Braaten. 165Wn.2d somewhat differently, plaintiffs exposure to perceive this to be a with the cited of the WPLA. Viereck, and Braaten approach is consistent with our caselaw. In Koker, 60 Wn. App. at 472, Viereck, 81 Wn. 5 P.2d 581 (1996), and Krivanek v. Fibreboard Corp.. 72 Wn. App. 632, 635, 865 held the WPLA did not apply because substantially all of the plaintiffs' exposures to bqfore enactment of the statute. Likewise, in Braaten, the Supreme Court "noted that products 'substantially occurred before the enactment' of the WPLA.... [and] under common productliability and negligence law." Macias, 175Wn.2d at 408 (citing qt383 n.4). In Macias, the Courtexpressed the test forapplicability of theWPLA

holding that the WPLA barred the claims in that case where substantially all the asbestos occurred after enactment ofthe statute. Macias at 408-09. We do not 

### ifneaningful distinction because underthe facts ofMacias itis evidentthat, consistent precedent, substantially all of the plaintiffs exposure did notoccur before the effective date Moreover, the Macias Court expressly stated that its holding was "[i]n accord with Koker, "Id. at409. asbestosNo. 69719-6-1/10 

### social securitydisability analysis, that "substantially allmeans 'essentiallyall' as opposed to 'in the main' or 'for the most part'"). 

### In quantifying the term, courts have found "substantially all" to mean 85 percent

or more. Seee.g., 

### Continental Can Co.. Inc. v. Chicago Truck Drivers. 916 F.2d 1154, 1158 (7th Cir. 1990) (assets in a pension fund); Central States Southeast &Southwest 

### Pension Fund v. BellmontTrucking. Co.. 610 F. Supp. 1505, 1511 (N.D. Ind. 1985) 

### (employee contributionsin a pension fund). Similarly, seventy-five percent and sixty-five percent have been found not to be the equivalent of"substantially all." See §&, Theurer 

## v. Bd. ofReview, |ndus. Com'n. 725 P.2d 1338 (Utah 1986) (assets acquired bydentist upon acquisition c-fpractice); James v. McCoy Mfg. Co., 431 So.2d 1147, 1149 (Ala. 1983) (assets acquired by an employerfrom a former employer). For purposes of this case, however, we need not decide whether to define "substantially all" by its plain 

### meaning or quantitatively because the outcome is the same under either definition. As a threshold matter, the parties dispute what should be measured in determining whether substantially all of Fagg's exposure occurred before enactment of 

## theWPLA. Fagg Argues thatwe should considerhis total exposureto asbestos from 

## any source and thjen determinewhethersubstantially all ofhis exposure occurred before July 26, 1981.5 Ifso, and a respondent's product was a part ofthat exposure, then Fagg urges us to conclude that the WPLA does not apply to that respondent.

5Specifically he urges the court to consider all exposure during (1) his employmentfrom 1963 through the late 1970s as a construction worker, naval machinist mate, and heavy equipment operator, which involved exposure to various asbestos-containing products; (2) personal automotive repairjobs between the 1950s and 1980s using products sold by CSK Auto; (3) work with transite pipe sold by PWWS over a period of approximately ten and a halfyears beginning in the late 1970s; and (4) his time vacationing and livingnear the Libby, Montana Superfund site from the 1980s to 2007. 10No. 69719-6-1/11 Fagg analogizes the "substantially all" test for application ofthe WPLA to the "substantial factor" causation test applied in toxic exposure cases. He argues thatjust
as a plaintiffneed not "prove that a particular defendant's product was the sole cause of the injury, only that itwas present in the work environment when the exposure occurred," neither should a plaintiffhave to prove that substantially all of his or her 

### exposure to asbestos before July 26, 1981 was attributable to a particular defendant, 

## butonlythatthedefendant's productmade up apartofthatexposure. BriefofAppellant

at 32. 

### PWWS and CSK argue that we should measure a plaintiff's exposure to a 

### specific defendant's products and only ifsubstantially all of a plaintiffs exposure to that defendant's product occurred before July 26, 1981 can we conclude thatthe WPLA does not apply.6 We agree with respondents. In Macias, 175 Wn.2d 402, the plaintiffsued various sellers ofasbestos

### containing products, claiming he was exposed to their products in the naval shipyards where he worked from 1978 to 2004.7jd at 405. The Court found thatthe plaintiff's claims as to somei ofthe defendant sellers arose under the WPLA because all or 

### substantially all of the plaintiff's exposure to those defendants' specific products

6Fagg arguels that therespondents are "judicially estopped" from making this argument because it contradicts the postion theytook in thetrial court. Theclaim iswithout meritfor several reasons. First, PWWS arguedfor a pefendant-specific approach in its summaryjudgment motion below. CP at 102-03. And, although CSKAuto arguedfor an aggregate approach below, itdid so withoutthe benefitofthe Maciasdecision, whiph offered guidance on this issue. Lastly, we mayaffirm a grant of summary 

### judgmenton anissuenotdecided by thetrial courtprovided thatit issupported by therecord and is 

### withinthe pleadingsind proof. Pleinv. Lackey. 149Wn.2d 214, 222, 67 P.3d 1061 (2003). Totheextent thattheparties arguefor a defendant-specific approach onappeal, they do so toprovide a basisfor this court to affirm the trial court based on the record in this case. We, therefore, consider the argument. 7The trial court considered this case when deciding PWWS's motion for summary judgment, but not CSK Auto's. 11No. 69719-6-1/12
occurred after the effective date of the WPLA. \± at 408-09. The Court applied the WPLA to the plaintiff's claim even though he was exposed to asbestos-containing 

## products sold by s^omeofthe defendantsforatleasttwo years beforethe effective date ofthe statute. The Court specifically addressed the applicability ofthe WPLA to three of the defendants, stating: The record indicates that Macias maintained and cleaned respirators manufactured by the Mine Safety Appliances Company 

### and North America Safety Products USA only afterJune 1981. The WPLA clearly governs the claims against these defendants. With respect to American Optical Corporation, the WPLA applies, as explained, because substantially all of Mr. Macias's exposure to asbestos occurred after the effective date ofthe Act. 

### Ig\ at 409, n.2. In Concluding that the WPLA applied to these defendants, the Court reiterated the rule that "a 'manufacturer's duty to warn is restricted to warnings based on the characteristics ofthe manufacturer's own products'; "[t]he law generally does not i 

### require a manufacturer to study and analyze the products of others and warn users of 

### therisks ofthoseproducts." Id. at411, quoting Braaten, 165 Wn.2d at385, citing American Law of Products Liability 3d §32:9 (John D. Hodson &Richard E. Kay eds. 

### 2004); 63A Am.Jur.2d Products Liability §1127 (1997). Thus, for purposes of i 

### determining whether a claim arises under the WPLA as to a specific defendant, the determinative factor is when all or substantially all ofthe plaintiff's exposure to that 

## defendants' particularasbestos-containing products occurred. Simonettay-Viad Corp., 165Wn.2d 341, 197 P.3d 127 (2008) and Braaten, 165 Wn.2d 373, are inaccord. In Simonetta. a former navy machinist sued the manufacturer 

### ofanevaporator, jjsed for desalinization ofsea water, alleging thatthemanufacturer

was liable for the machinist's asbestos related disease; the machinist had been

12No. 69719-6-1/13 

### exposed to asbestos insulation, which the navy had used to encapsulate the evaporator 

### and was manufactured by athird party. In Braaten, aformer pipe fitter sued the manufacturers ofvarious valves and pumps, alleging that they were liable for his asbestos related disease; the pipe fitter had also been exposed to asbestos insulation, manufactured by a third party and used by the navy to insulate the defendants' 

### products. Ineach sase, the Court focused on the asbestos-containing products that
were alleged to have caused the plaintiffs' injuries and whether those products were manufactured by the defendants or were in the defendants' chain ofdistribution. 

### Concluding they were not, the Court held that the defendants had no duty to warn "of the dangers ofexposure to asbestos inproducts it did not manufacture and for which 

### the manufacturerWas not in the chain ofdistribution." Braaten, at 398.8 In light ofMjcias, Simonetta and Braaten, Fagg's contention that we take into 

### account all of hisExposureto asbestos from any source to determine when his claim 

## arose is untenable^. Whetherthe respondents owe Fagg aduty atall, the breach of which gives rise to his claim, depends on the products alleged to have caused Fagg's injuries and whether those products were in the respondents' chain of distribution. 

### Underthecontrolling cases, to theextent Fagg's claimed injuries arisefrom products outside the respondents' "chain of distribution", no duty can be attributed to them. Macias, 175 Wn.2d at 410-11. Thus, we conclude that the proper measure to determine ifFagg's claims fa Is under the WPLA is whether all or substantially all his exposure to the asbestos-containing products of each respondent occurred before July 26, 1981.

8 Simonetta and Braaten both involved manufacturer defendants, but the analysis regarding chain of distribution seems to us equally applicable to seller-defendants who are outside the chain of distribution of their co+defendants' products. 13No. 69719-6-1/14 Applying the Analysis to PWWS and CSK PWWS Viewing the: evidence inthe light most favorable to Fagg, he was exposed to PWWS's transite beginning with his employment with C&D in 1979 and concluding with his employment with the City of Kirkland in 1990. Considering only the years of Fagg's exposure to transite, it is evident that less than twenty-five percent ofthis time is before July 26, 1981. Thus, Fagg's pre-WPLA exposure to transite is sold by PWWS insufficient to constitute "substantially all" of his exposure to that product. By this measure, Fagg's claim against PWWS falls under the WPLA. The result does not change when we consider the relative extent ofexposure during each year of employment. Fagg made approximately fiftycuts and bevels during his time at C&D (1979-1980); seventy-five cuts and bevels to new pipe (the rest involved pipe already in the ground from unknown sources), an average offifteen per year, at Lake Washington (1980-1985); and twenty-five cuts and bevels, an average of 

### five peryear, at City ofKirkland (1980-1990). Of his approximately 150 total cuts and bevels between 1979 and 1990, an average of fifty-nine cuts and bevels, or thirty-nine 

### percent, occurred before July 26, 1981. Because this amount cannot be considered 

### substantially all, the trial court properly concluded that Fagg's claims arose under the 

### WPLA anddid not errin dismissing them.
CSK 

### Fagg claims he was exposed to asbestos-containing auto parts purchased from CSK on fourteen occasions beginning inthe 1950s through the 1980s. Viewing the 

### evidence in the light most favorable to him, thirteen ofthose exposures occurred before

14No. 69719-6-1/15 

### July 26, 1981: Fagg testified that seven occurred before 1981, five in the early 1980s, and one in late 1970 or early 1980. Therefore, we conclude that because substantially all ofFagg's exposure to CSK's asbestos-containing products occurred before July 26, 1981, the WPLA does not apply with respect to Fagg's claims against CSK. The trial 

### court erred inentering summaryjudgmentfor CSK on this ground.9 

## Affirmwith Respectto PWWS. Reversewith respectto CSK.

WE CONCUR:

9Although CSK also moved for summaryjudgment on grounds that Fagg failed to raise a disputed issue of fact regarding causation, the trial court did not rule on that issue and CSK did not brief the issue on appeal. Apcordingly, we do not reach that issue in ouropinion. 

### i 15