Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—Wash. Sup. Ct.: Claims against subcontractor move forward in part in refiner worker’s death case, (May 6, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

Claims arising from the subcontractor’s construction activities were found to be time-barred, while claims based on seller/supplier liability were allowed to proceed.

In a suit brought by a worker’s estate against a subcontractor for supplying and installing asbestos-containing thermal insulation at the refinery where the decedent was employed, the Washington Supreme Court partly reversed the denial of summary judgment to the subcontractor. The court found that claims arising from the contractor’s insulation installation work were barred by the six-year statute of repose as they contributed to an improvement on real property and were integral to the refinery’s operation. However, the statute did not extend to independent duties arising from the subcontractor’s role as a product seller or supplier (Polinder v. Aecom Energy & Construction, Inc., No. 102782-6 (Wash. Sup. Ct. Apr. 30, 2026)).

Background. A man worked as a maintenance technician at the Atlantic Richfield Company (ARCO) Cherry Point petroleum refinery beginning in 1971, where he regularly handled and worked around asbestos-containing insulation applied to piping and equipment. The refinery had been constructed in the late 1960s and early 1970s, with a general contractor subcontracting insulation work to Brand Insulations Inc. (Brand or subcontractor), a company that selected, bought, and installed the insulation materials. The contract identified Brand as the “seller” of insulation materials and ARCO as the “buyer.” During maintenance operations, insulation was frequently disturbed, generating dust. Decades later, the worker was diagnosed with mesothelioma. He sued 53 entities alleging that his illness was caused by workplace and residential exposure to asbestos. After his death, his estate continued pursuing the claims, including those against Brand for strict product liability and negligence. The subcontractor moved for summary judgment, asserting that all claims were barred by Washington’s six-year construction statute of repose. The trial court granted dismissal, relying on prior appellate authority, but later reversed itself in light of conflicting precedent. This court accepted interlocutory review to resolve the conflict.

Statute of repose. The construction statute of repose is an affirmative defense that applies to claims against persons who “constructed, altered or repaired any improvement upon real property” or performed any supervision, observation, or administration of “construction contracts for any construction, alteration or repair of any improvement upon real property.” RCW 4.16.300. The statute limits the generally applicable discovery rule to protect contractors from extended tort and contract liability and bars claims arising from construction-related activities after six years from substantial completion, regardless of when injury is discovered, pursuant to RCW 4.16.310. In Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 676 P.2d 466 (1984), the court reiterated that the statute protects those involved in constructing structural improvements or systems integral to a structure’s function, but does not extend to manufacturers or suppliers of products merely used within a structure. The inquiry here accordingly turned on whether Brand’s activities contributed to an improvement or an integral system necessary for the structure to function as intended.

Precedents. Two Court of Appeals decisions have addressed whether claims against Brand for activities at the Cherry Point refinery were due to be dismissed under the statute of repose. In Maxwell v. Atlantic Richfield Co., 15 Wn. App. 2d 569, 476 P.3d 645 (2020), the appeals court held that the statute applied because Brand did not manufacture or install an independent system that was merely housed within the refinery structure, the entire refinery included areas of its work, and its installation activities constituted an improvement on real property. In contrast, Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 531 P.3d 265 (2023), found that summary judgment was improper because factual issues remained as to whether the contractor’s work “contributed to a structural improvement or an integral system.”

Construction claims. The court here agreed with Welch’s focus of inquiry and noted that the construction statute of repose required Brand to show more than its activities simply “involve” construction or “relate to” construction. However, this distinction did not alter the outcome where the evidentiary record established integrality. The record showed that the refinery constituted an improvement on real property, the refinery consisted of miles of piping systems and vessels, and the subcontractor’s thermal insulation work contributed to its construction. The lower court’s contrary holding was due to the fact that Brand’s services continued the year after the Cherry Point refinery began refining oil, but the legal character of a refinery as an improvement does not change when a refinery begins operating or when some portion of the improvement is out of service. The subcontractor provided uncontroverted expert evidence showing that thermal insulation was necessary for refinery operation and integral to its functioning. Accordingly, the statute of repose applied and the estate’s claims were barred to the extent the decedent’s injuries arose from that construction. The estate’s additional argument that the statute of repose would violate the state constitution’s privileges and immunities clause was not considered because it was not raised before the trial court, and existing precedent had upheld the statute’s constitutionality.

Supplier liability. The court then addressed whether all claims were barred or whether some survived based on the contractor’s additional role. Citing Pfeifer v. City of Bellingham, 112 Wn.2d 562, 772 P.2d 1018 (1989), the court reaffirmed that when entities act as both builders and sellers, liability depends on the nature of the activity at issue. The statute of repose does not extend to independent duties arising from product supply, and product liability attaches to entities best positioned to understand and mitigate product risks. Simonetta v. Viad Corp., 165 Wn.2d 341, 197 P.3d 127 (2008). Here, the estate sought to hold Brand liable as a seller and negligent distributor of asbestos-containing insulation under common law. ARCO relied on Brand’s expertise for selection of materials, and Brand resold the asbestos-containing insulation to it at a mark-up, raising triable issues as to whether the subcontractor was a product seller or negligent supplier. As such, the summary judgment motion was denied as to these claims and the matter was remanded for further proceedings.

The case is No. 102782-6.

Judge: Gonzalez, S.

Attorneys: David Albert Shaw (Williams Kastner & Gibbs PLLC) for Frederick K. Polinder III. Marisa Louise Berlinger (Morgan, Lewis & Bockius LLP) for Aecom Energy & Construction, Inc.

Companies: Aecom Energy & Construction, Inc.

Cases: CoverageLiability Procedure TortClaims Safety StateLawClaims WashingtonNews