Among the issues in Welch and Maxwell was whether Brand’s installation activities constituted an “improvement upon real property”—one of two requirements for the construction statute of repose to apply.
The construction statute of repose under RCW 4.16.310 bars any claims arising from construction, design, or engineering of any improvement upon real property that has not accrued within six years after substantial completion or termination of services, whichever is later, even if the injury has not yet occurred.
On June 20, 2023, Division One of the Washington Court of Appeals (Div. I) published its decision in Welch v. Air & Liquid Systems severely criticizing and rejecting the statute of repose reasoning contained in Maxwell v. Atlantic Richfield Co., 15 Wn. App. 2d 569, 476 P.3d 645 (2020), a Division Two (Div. II) opinion.
More than a mere difference of opinion, the courts in Welch and Maxwell reached different results as to whether claims asserted against Brand Insulations, Inc. were barred by the statute of repose despite involving (i) the same procedural posture, both appeals from summary judgment decisions; (ii) the same facility, Atlantic Richfield Corporation’s (ARCO) petroleum refinery at Cherry Point in Ferndale; (iii) the same activity of installation of asbestos laden insulation on pipes; (iv) the same type of injury, mesothelioma; and (v) application of the same test set forth in Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 676 P.2d 466 (1984).
Reprinted courtesy of Masaki Yamada, Ahlers Cressman & Sleight PLLC and Ryanne Mathisen, Ahlers Cressman & Sleight PLLC
Mr. Yamada may be contacted at masaki.yamada@acslawyers.com
Ms. Mathisen may be contacted at ryanne.mathisen@acslawyers.com
