### FILED 

## E'10t. T OFAPPEALS DIVISION II 26.1Li 

### JU 22 ? 

### IO: 23 IN THE COURT OF APPEALS OF THE STATE OF

## WASI.- N ti. DIVISION II ' Y` m_ 

### 13EPI11Y H54TON
JACK DON KENNEDY and SANDRA KENNEDY, husband and wife, Appellants,

v. SABERHAGEN HOLDINGS, INC, Respondent. No. 43941 -7 -II consolidated with No. 45381 -9 -II

UNPUBLISHED OPINION
MELNICK, J. — 

### Jack Kennedy appeals the trial court's grant of summary judgment for Saberhagen Holdings, Inc. and its denial of his CR 60(b)(3) motion. The trial court granted 

### summary judgment in favor of Saberhagen because it concluded Kennedy failed to present sufficient evidence to create a reasonable inference that he was exposed to asbestos supplied by Tacoma Asbestos, Saberhagen' s predecessor.' 

### Kennedy argues that there is sufficient evidence to create a genuine issue of material fact regarding his exposure to Saberhagen' s products. We
agree. 

### Because Kennedy presented sufficient evidence to avoid summaryjudgment, we do not
consider 

### Kennedy' s appeal of his CR 60(b)( 3) motion. We reverse and remand for further proceedings. FACTS I. BACKGROUND 

### In November 2011, a doctor diagnosed Kennedy with mesothelioma. Mesothelioma is a

cancer in the 

### lining of the 

### lung usually caused 

### by asbestos exposure. 

### Berry v. Crown Cork & Seal Co., 103 Wn. App. 312, 314, 14 P.3d 789 ( 2000). 

### Kennedy filed a lawsuit against Saberhagen, alleging that asbestos supplied 

### by Saberhagen proximately caused his
1 To avoid confusion, we refer to TacomaAsbestos as Saberhagen.43941 -7 -II /45381 -9 -II

mesothelioma. He alleged the exposure occurred on the Tacoma waterfront at pier 23 between 

### 1964 and 1968 during his employmentwith theWashington ArmyNational Guard. While on Pier 23, Kennedy personally handled asbestos and he worked around others who installed and maintained insulation containing asbestos. Kennedy' s exposure to asbestos
occurred on a 

### floating machine shop ( FMS), the FMS - 789. 

### Kennedy and Richard Elmore, 

### Kennedy's co-worker,testified intheirdepositions thattheArmyactivatedthe FMS - 789 in 1966 and awarded a contract to Tacoma Boat Building to prepare the FMS -789 for active 

### duty. This preparation included asbestos insulation repair and installation. 

### Kennedy and other guardsmen were on and offthe FMS - 789 during its repairto retrieve equipment and materials theyneeded from the vessel. Kennedy' s exposure also occurred while working on the FMS -6. In their depositions, 

### Kennedy and Elmore testified that Kennedy replaced the insulation on the FMS - 6' s boiler with asbestos 

### Kennedy procured from Tacoma Boat. 

### The supplies for replacing the insulation 

### typically came fromthe vessel under repairorthe National Guard's main supplyshop; however, Kennedy ran out of insulation during the boiler repair and his supervisor instructed him to get

more from Tacoma Boat. 

### Kennedy personally picked up the asbestos insulation from Tacoma Boat. 

### Kennedy poured the powdered asbestos cementfrom the bags he retrieved from Tacoma Boat into buckets and added water to make 

### insulating asbestos cement. He then applied the asbestos to the boiler with his bare hands. 

### Kennedy and Elmore also testified that Kennedy worked with asbestos while repairing insulation on a small tug boat, the ST - 2104. 

### Kennedy obtained the asbestos for the repair work from Tacoma Boat. 

### Kennedy recalled obtaining athird bag ofasbestos from Tacoma Boat, but did not remember what use he made ofthat asbestos material. 243941 -7 -II /45381 -9 -II



### Kennedy provided evidence that Saberhagen, an insulation supplier and contractor in Tacoma 

### during the 1960' s, supplied asbestos to Tacoma Boat. Former Tacoma Boat employee, 

### Dennis Legas, testified in his deposition that Saberhagen was the only insulation contractor he
recalled working for Tacoma Boat in the 1960s. Legas saw Saberhagen trucks in the Tacoma Boat yard and testified that his brother - in - law delivered material from Saberhagen to Tacoma Boat. Another former Tacoma Boat employee, David Hansen, also testified in his deposition 

### that Saberhagen was the only insulation contractor he recalled working for Tacoma Boat in the 1960s and that Saberhagen was present at Tacoma Boat "[ d] efinitely 

### frequently." Clerk' s Papers CP) at 668. Hansen also testified that he saw Ted Boscovich, who worked for Saberhagen, 

### doing insulation work at Tacoma Boat. 

### During its CR 30(b)( 6) deposition, Saberhagen' s representative testified that it had no evidence to either prove or disprove that Saberhagen supplied insulation to Tacoma Boat. II. PROCEDURAL HISTORY 

### Kennedy filed a complaint for negligence and products liability, among other claims, against Saberhagen on January 11, 2012. 

### Saberhagen moved for summary judgment, arguing 

### that Kennedyfailed "to identify sufficient admissible evidence showing that [Kennedy] was ever 

### actually exposed to or harmed by asbestos - containing products supplied by Saberhagen or its alleged predecessors." CP at 17. 

### Saberhagen identified and argued only one issue to the trial court: "Where plaintiffs will be unable to introduce evidence at trial that Mr. Kennedy was ever 

### exposed to asbestos -

containing products supplied by Saberhagen or its alleged predecessors, should plaintiffs' claims against Saberhagen be dismissed ?" CP at 22. Saberhagen moved to strike several exhibits attached to Kennedy's response to summary judgment. The trial court denied Saberhagen' s motion to strike, and in granting Saberhagen's 343941 -7 -II /45381 -9 -II

motion for summary judgment it considered the Kennedy, Elmore, Legas, and Hansen 

### depositions taken for this specific litigation, in addition to the' depositions Kennedy submitted that were taken in prior asbestos cases and a 1971 Saberhagen letter. 

### Kennedy moved for reconsideration ofthe trial court's grant of summaryjudgment for Saberhagen, which the trial court denied. Kennedy timely appealed. 

### On July 25, 2013, Kennedy filed a CR 60(b)(3) motion for relieffrom the order granting Saberhagen summary judgment. 

### With his motion, Kennedy submitted new evidence of his alleged exposure to asbestos from Saberhagen. The trial court considered the new evidence and 

### denied Kennedy's CR 60(b)(3) motion, concludingthatthe "alleged `newly discovered evidence' is not of sufficient consequence as to vacate the Court's prior order granting summary judgment." CP at 1597. 

### Kennedy timely appealed and we consolidated that appeal with 

### Kennedy's first appeal ofthe trial court's grant ofsummaryjudgment in favor ofSaberhagen. ANALYSIS 

### Kennedy argues the trial court improperly granted summaryjudgment because sufficient circumstantial evidence exists to create a genuine issue of material fact as to whether Kennedy

was exposed to asbestos supplied 

### by Saberhagen. We hold sufficient circumstantial evidence 

### exists based on the Kennedy, Elmore, Legas, and Hansen depositions from which a reasonable fact finder could infer that Kennedy's worksite used Saberhagen's product between 1964 and 1968 and that Kennedy suffered exposure to Saberhagen's product. Because Saberhagen moved for summaryjudgment only on the exposure issue, we do not consider its additional argument that Kennedy failed to offer any evidence that he suffered harm from 

### being exposed to asbestos43941 -7 -II /45381 -9 -II
that Saberhagen supplied. 

### Accordingly, we reverse the trial court's grant ofsummaryjudgment
and remand for further proceedings. 2 I. SUMMARY JUDGMENT IMPROPERLY GRANTED 

### We review an order for summaryjudgment de novo, engaging in the same inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 ( 2002). 

### Summary judgment is proper if " the pleadings, depositions, answers to interrogatories, and admissions on 

### file,togetherwith the affidavits, ifany, showthatthere is no genuine issue as to any material fact
and that the moving party is entitled to ajudgment as a matter of law." CR 56( c). We construe all facts and their reasonable inferences in the light most favorable to the nonmoving party. Jones, 146 Wn.2d at 300. 

### Summaryjudgment is proper only ifreasonable persons could reach but one conclusion from the evidence presented. Bostain v. Food Express, Inc., 159 Wn.2d 700, 708, 153 P.3d 846 (2007). 

### Generally, asbestos plaintiffs in Washington may establish exposure to a defendant's product through circumstantial evidence. Lockwood v. A C & S, Inc., 109 Wn.2d 235, 246 - 47, 744 P.2d 605 ( 1987). 

### Due to the long latency ofasbestos related diseases, a plaintiffs abilityto 

### recall specific manufacturers of asbestos he was exposed to may be seriously impaired. Lockwood, 109 Wn.2d at 246. " 

### Hence, instead of personally identifying the manufacturers of asbestos products to which he was exposed, a plaintiff may rely on the testimony of witnesses 

### who identify manufacturers of asbestos products which were then present at his workplace." Lockwood, 109 Wn.2d at 246 - 47. But the circumstantial evidence must be sufficientto allow a

2 

### Because we determine summaryjudgment was improper, we do not consider whetherthe trial court erred by denying Kennedy's CR 60(b)(3) motion. 543941 -7 -II /45381 -9 -II

reasonable fact finder to deduce that the plaintiff contacted the defendant' s product. Lockwood, 109 Wn.2d at 247 -

48. In Lockwood, our Supreme Court found sufficient evidence of exposure where ( 1) shipyard workers testified that the defendant' s product was used on a large liner conversion and 

### the plaintifftestified that he worked on a similar ship overhaul in the same area inthe same time period, and (2) an expert testified that " after asbestos dust was released, it drifted in the air and
could be inhaled 

### by bystanders who did not work 

### directly with asbestos." Lockwood, 109 Wn.2d at 247. In 

### Berry, the court found sufficient evidence of exposure where ( 1) a purchaser for the plaintiff's workplace testified that some of the insulation products used at the workplace were 

### supplied bythe defendant, and (2) an employee ofthe plaintiff's workplace saw Plant and Carey 

### products almost every day at the workplace and another employee testified that the defendant

was a distributor of Plant and 

### Carey products. 103 Wn. 

### App. at 324. 

### The court in Berry held that the evidence of exposure was not too speculative and did raise an inference that the defendant' s products were used at the plaintiff s workplace during the relevant time period. 103 

### Wn.App. 324 -

25. 

### InAllen v.Asbestos Corp. Ltd.,the courtfound sufficient evidence ofexposure where (1) evidence existed ofthree sale orders of asbestos cloth from the defendant over a period ofthree years, and ( 2) an expert testified that if the plaintiffs workplace used asbestos cloths, the plaintiffwould have been exposed because the asbestos dust would have drifted throughout the workplace. 138 Wn.App. 564, 572 - 73, 157 P.3d 406 (2007). The court in Allen determined that it would be reasonable to infer that because the sales records establish that the plaintiff's
643941 -7 -II /45381 -9 -II

workplace ordered large quantities of asbestos over multiple years, it would be reasonable to 

### inferthatthe plaintiff'sworkplace used the asbestos itordered. 138 Wn.App. at 573. 

### When viewing the evidence in the light most favorable to Kennedy, we determine it would be reasonable for a fact finder to find that Kennedy came in contact with Saberhagen's product. 

### Kennedy and Elmore provided evidence thatTacoma Boat overhauledthe FMS - 789 in 1966, which included asbestos insulation repair and installation, and that Kennedy was occasionally on board the FMS - 789 while Tacoma Boat did the repair. 

### Kennedy and Elmore 

### also statedthat Kennedyworked directlywith asbestos insulation he retrieved fromTacoma Boat

on the FMS -

6' s boiler and the tug boat, ST - 2104. Additionally the plaintiffpresented evidence 

### that Saberhagen performed insulation work for Tacoma Boat using insulation containing asbestos. 

### Two former Tacoma Boat employees testified that they remember Saberhagen as the 

### only insulation contractor working with Tacoma Boat in the 1960s and one testifiedthat he saw his brother -

in - law, who worked for Saberhagen, deliver products to Tacoma Boat. Further, 

### Saberhagen could not offer any evidence to either refute or confirm the claims ofthe witnesses. Saberhagen argues the evidence leads to impermissible speculation that Kennedy's 

### exposure came from its insulation materials. We reject Saberhagen' s argument. Testimony from two former Tacoma Boat employees shows that Saberhagen worked extensively with Tacoma Boat in the 1960s. 

### Kennedy, similarly situated to the plaintiffs in Lockwood, Berry, andAllen, was a bystanderwhile the FMS - 789 had asbestos insulation workperformed on it. And Kennedy 

### possibly had more exposure than the plaintiffs in Lockwood,Berry, andAllen, because there is evidencethat Kennedyworked directly with asbestos. 

### Kennedy's summary judgment evidence is sufficient to raise an inference that Saberhagen's products were used by Tacoma Boat and attheirworksites during the 1960s when 743941 -7 -II /45381 -9 -II

Kennedy worked for the Washington 

### Army National Guard. Further, the evidence is sufficient to raise an inference that 

### Kennedy had exposure to those products. Accordingly,the trial court 

### erred by granting summaryjudgment in favor of Saberhagen on the exposure issue because a genuine issue of material fact exists as to whether Kennedy was exposed to Saberhagen' s products.3 

### We reverse the order granting summary judgment and remand for further proceedings. II. SABERHAGEN DID NOT RAISE THE ISSUE OF CAUSATION ON SUMMARYJUDGMENT 

### Saberhagen argues that Kennedy raised no issue of material fact regarding whether
exposure to Saberhagen' s product caused him 

### injury. 

### Kennedy argues that Saberhagen did not sufficiently raisethis issue in thetrial court. We agree with Kennedy. Every motion made to the trial court " must specify the grounds and relief sought `with particularity', and courts may not consider grounds not stated in the motion." Orsi v. Aetna Ins. Co., 41 Wn.

### App. 233, 247, 703 P.2d 1053 ( 1985) ( citations omitted). Specifically, "CR 7(b)( 1) 

### requires that a motion `shall state with particularity the grounds therefor, and shall set forth the relief or order sought. "' Pamelin Indus., Inc. v. Sheen -U.S.A., Inc., 95 Wn.2d 398, 402, 622 P.2d 1270 ( 1981). " The purpose of a motion under the civil rules is to give the other party notice of the reliefsought." Pamelin, 95 Wn.2d at 402.



### 3 Because we hold the Kennedy, Elmore, Legas, and Hansen depositions Kennedytookforthis case are sufficient to overturn summaryjudgment, we do not consider the admissibility ofthe evidence Saberhagen challenged in its motion to strike at the trial court. 843941 -7 -II /45381 -9 -II Saberhagen identified one issue on summary judgment: " Where plaintiffs will be unable to introduce evidence attrial that Mr. Kennedy was ever exposed to asbestos - containing products 

### supplied by Saberhagen or its alleged predecessors, should plaintiffs' claims against Saberhagen be dismissed ?" CP at 22. 

### And while Saberhagen did make cursory mention , in its summary 

### judgmentmotionthat Kennedyfailedto identify sufficient admissible evidence to showhis harm 

### was caused by asbestos containing products supplied by Saberhagen, it did not particularly identify this issue in its motion. 

### Saberhagen's motion was clearly focused on exposure, arguing that Kennedy could not prove he was exposed to Saberhagen' s product. 

### Saberhagen merely mentioned the words " harmed 

### by" 

### or " causing his illness" without providing argument on the causation issue. 

### Our reading ofSaberhagen's motion is supported bythe factthe trial court ruled only on the exposure issue: " 

### The primary issue in this case is the issue ofalleged exposure that 

### Mr.Kennedy experienced while working atthe National Guard Marine Facility" and concluding Kennedyfailed to present sufficientevidence ofexposure. CP at 950.

Here, the mere mention of the words " harmed 

### by" or " causing his 

### injury" was insufficient to raise the issue of causation with particularity. Saberhagen provided insufficient
notice to the other party that causation was one of the grounds for the relief sought.4 

### Accordingly, we reviewed summaryjudgment only for sufficiency ofevidence as to Kennedy's exposure to asbestos products from Saberhagen and its predecessors.



## 4 Our holding here does not prohibit Saberhagen from moving the trial court for summary judgment on issues not relating to exposure. 943941 -7 -I1 / 45381 -9 -II We reverse and remand for further proceedings. 

### A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

10