Polinder v. Brand Insulations

Case Profile
Polinder v. Brand Insulations, Inc.
Citation	No. 102782-6 (Wash. Apr. 30, 2026) (en banc)
Court	Supreme Court of the State of Washington
Decision Date	April 30, 2026
Majority Author	Justice Steven C. González
Concurring/Dissenting	Justice Gordon McCloud (joined by Madsen, J.P.T.)
Plaintiff	Frederick K. Polinder III, Executor of the Estate of Lee V. Hetterly
Defendants	Brand Insulations, Inc. and 52 co-defendants
Statute at Issue	RCW 4.16.300–.310 (6-year construction repose)
Legal Theory	Restatement (Second) of Torts §§ 388, 402A (pre-WPLA)
Disposition	Affirmed in part, reversed in part, remanded
Significance	First Washington Supreme Court ruling to bifurcate contractor and seller duties under RCW 4.16.300
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Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026) (en banc), is the first Washington Supreme Court decision to draw a capacity-based line through the state's construction statute of repose, RCW 4.16.300–.310, as it applies to asbestos-disease claims. Authored by Justice Steven C. González, the majority opinion holds that claims arising from Brand Insulations' installation of asbestos-containing insulation at the ARCO Cherry Point petroleum refinery in 1971–72 are barred by the six-year construction repose, but claims arising from Brand's independent duties as a product seller and negligent supplier of asbestos-bearing insulation are not barred and may proceed on remand. The ruling resolves a split between Division II's 2020 Maxwell decision and Division I's 2023 Welch decision and opens a Restatement-grounded seller-liability path for Washington mesothelioma claimants whose exposures predate the 1981 effective date of the Washington Product Liability Act.

Educational disclaimer: This page is informational only and does not constitute legal advice. Washington mesothelioma claimants should consult a licensed asbestos plaintiff's attorney to assess the specific applicability of RCW 4.16.300–.310 and the Polinder ruling to their case.

Polinder v. Brand Insulations at a glance:

• Decided April 30, 2026 — by the Washington Supreme Court sitting en banc, in an opinion authored by Justice Steven C. González.
• 53 named defendants — Brand Insulations, Inc. and 52 co-defendants, including AECOM, Crane Co., Foster Wheeler, General Electric, Honeywell, John Crane, Metropolitan Life, and Union Carbide.
• Bifurcated holding — construction-activity claims barred by RCW 4.16.300's six-year repose; seller and negligent-supplier claims survive and proceed on remand.
• Resolves the Maxwell/Welch split — adopts a refined test rejecting Division II's broad "involved-in-construction" formulation and clarifying Division I's "structural improvement or integral system" gloss.
• Four-factor seller test — owner reliance on contractor expertise, contractor discretion in product selection, resale at a markup, and post-construction product retention support a reasonable inference of seller status.
• Pre-1981 Washington asbestos claims governed by Restatement (Second) §§ 388, 402A — because the Washington Product Liability Act (chapter 7.72 RCW) does not apply to claims arising before July 26, 1981.
• Constitutional challenge not reached — the Estate's Article I, § 12 privileges-and-immunities argument was procedurally barred; existing precedent in 1519-1525 Lakeview Blvd. Condo. Ass'n continues to uphold the statute.
• Lee V. Hetterly worked at Cherry Point for over a decade — beginning in 1971 as a maintenance technician; routine exposure to asbestos dust during pipe and equipment maintenance preceded his mesothelioma diagnosis decades later.
• Insulation was integral to refinery operation — the Brand-supplied Sinquefield Declaration established under the first law of thermodynamics that the Cherry Point refinery could not operate as intended without thermal insulation.
• Disposition affirmed in part, reversed in part, remanded — King County Superior Court will adjudicate the surviving seller and supplier theories on remand.

Key Facts

Metric	Finding
Full citation	Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026) (en banc).
Court	Supreme Court of the State of Washington, sitting en banc.
Majority opinion	Justice Steven C. González, with Justice Yu, Justice Pro Tempore (J.P.T.) concurring in the majority.
Concurrence/dissent	Justice Gordon McCloud (concurring in part, dissenting in part), joined by Justice Madsen, J.P.T.
Statute at issue	Revised Code of Washington (RCW) 4.16.300 and 4.16.310 — Washington's six-year construction statute of repose.
Defendants	53 named defendants, including Brand Insulations, Inc. as petitioner and 52 co-defendants listed in the opinion appendix.
Site of exposure	ARCO (Atlantic Richfield Company) Cherry Point petroleum refinery, Whatcom County, Washington.
General contractor	Ralph M. Parsons Co.; Brand Insulations was an installation subcontractor.
Brand's installation window	Asbestos-bearing insulation installed at Cherry Point in 1971–72.
Plaintiff exposure	Lee V. Hetterly began work at Cherry Point in 1971 as a maintenance technician; routine contact with asbestos-insulated piping over more than a decade.
Procedural posture	Direct interlocutory discretionary review under Rules of Appellate Procedure (RAP) 2.3(b)(1) and 4.2(a)(3); granted to resolve a Court of Appeals split.
Court of Appeals split resolved	Maxwell v. Atlantic Richfield Co. (Div. II 2020) vs. Welch v. Brand Insulations, Inc. (Div. I 2023).
Repose period	Six years from substantial completion of construction (RCW 4.16.310).
Pre-WPLA framework	Restatement (Second) of Torts §§ 388 (negligent supplier) and 402A (strict products liability), per RCW 4.22.920 carve-out for pre-July-26-1981 claims.
Disposition	Affirmed in part (seller/supplier claims survive), reversed in part (construction claims barred), remanded to King County Superior Court.

What Did the Washington Supreme Court Hold?

The Polinder majority issued a bifurcated holding addressing the two distinct capacities in which Brand Insulations operated at Cherry Point.

Construction-activity claims — barred

"Brand established that its insulation installation contributed to the construction of an improvement on real property, the Cherry Point refinery, and was integral to the refinery's operation. The construction statute of repose, therefore, bars claims arising from those construction activities." (Majority op. at 17.)

Seller and supplier claims — not barred

"However, Brand has not established as a matter of law that the Estate's claims solely arise from such activities. The Estate's claims arising from Brand's independent product seller or supplier duties are not barred." (Majority op. at 17.) Earlier the court explained: "To the extent the Estate's claims arise from Brand's activities as a product seller or negligent supplier, rather than from acts or omissions undertaken in constructing an improvement, the statute of repose does not apply." (Majority op. at 7–8.)

Constitutional challenge — not reached

The Estate argued that applying RCW 4.16.300 to bar Lee Hetterly's claims would violate Article I, § 12 (privileges and immunities) of the Washington Constitution, citing Bennett v. United States, 2 Wn.3d 430, 539 P.3d 361 (2023), which invalidated Washington's medical-malpractice statute of repose on similar grounds. The court declined to reach the constitutional challenge because it had not been presented to the trial court, and because existing precedent in 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apartment Sales Corp., 144 Wn.2d 570, 582, 29 P.3d 1249 (2001), already upholds the statute's facial constitutionality.

The concurrence and partial dissent

Justice Gordon McCloud, joined by Justice Madsen, J.P.T., agreed that RCW 4.16.300 bars the construction-activity claims on this record, but dissented from the majority's decision to reach the seller-liability question at all. She argued that direct interlocutory review under RAP 2.3(b) is "disfavored" and should have been confined to the single repose question on which Maxwell and Welch split, leaving the seller theory for the trial court to address in the first instance.

Disposition

The court affirmed in part (denial of summary judgment on seller/supplier claims), reversed in part (denial of summary judgment on construction-activity claims), and remanded for further proceedings consistent with the opinion.

Who Was Lee Hetterly and What Happened at Cherry Point?

The ARCO Cherry Point refinery

ARCO (Atlantic Richfield Company) announced plans to build the Cherry Point petroleum refinery in Whatcom County, Washington in 1968 and constructed the facility in the late 1960s and early 1970s. The refinery began refining oil in 1971. BP acquired ARCO's downstream assets in April 2000 and took operational control of the Cherry Point refinery in January 2002.

ARCO retained Ralph M. Parsons Co. as the general contractor for the refinery build-out. Parsons subcontracted with Brand Insulations for the vast majority of insulation work throughout the refinery. Under the Brand–Parsons subcontract, Brand was designated the "seller" of insulation materials and ARCO was the "buyer" — a contractual designation that proved central to the seller-liability holding.

Brand's dual role: contractor and seller

The majority opinion itemized the record facts that support treating Brand as a product seller rather than a labor-only installer:

• ARCO relied on Brand's insulation expertise.
• Brand had discretion to select the specific asbestos-bearing insulation material.
• Brand purchased the asbestos-bearing insulation from manufacturers and resold it to ARCO at a marked-up price.
• After construction, ARCO retained unused asbestos-bearing insulation material that Brand supplied.

Brand completed its installation work by early 1972.

Lee Hetterly's exposure and diagnosis

Lee V. Hetterly began working at Cherry Point in 1971 and continued there over a decade as a maintenance technician. His work brought routine contact with insulated piping; insulation was "often broken or knocked off pipes and equipment during maintenance and shutdowns, generating dust," according to the opinion's factual recitation. Decades later, Hetterly was diagnosed with mesothelioma and sued 53 defendants alleging cumulative exposure at sites in King and Whatcom Counties from the 1950s through the early 2000s. He died during litigation; his estate, represented by executor Frederick K. Polinder III, continued the action. The U.S. Agency for Toxic Substances and Disease Registry (ATSDR) classifies mesothelioma as "almost always" caused by asbestos exposure and identifies maintenance work with asbestos insulation among the primary occupational exposure scenarios.

How Does the Construction Statute of Repose Work?

Statutory text

RCW 4.16.300 applies to "all claims or causes of action of any kind against any person, arising from such person having constructed, altered or repaired any improvement upon real property, or having performed or furnished any design, planning, surveying, architectural or construction or engineering services, or supervision or observation of construction, or administration of construction contracts for any construction, alteration or repair of any improvement upon real property."

RCW 4.16.310 provides that "the applicable statute of limitation shall begin to run only during the period within six years after substantial completion of construction, or during the period within six years after the termination of the services enumerated in RCW 4.16.300, whichever is later. … Any cause of action which has not accrued within six years after such substantial completion of construction … shall be barred." "Substantial completion of construction" is defined statutorily as "the state of completion reached when an improvement upon real property may be used or occupied for its intended use."

Statute of limitations vs. statute of repose

This distinction is critical to the Polinder analysis. As Rice v. Dow Chemical Co., 124 Wn.2d 205, 211–12, 875 P.2d 1213 (1994), explained — quoted by the Polinder majority — "A statute of limitation bars [a] plaintiff from bringing an already accrued claim after a specified period of time," whereas a "statute of repose terminates a right of action after a specific time, even if the injury has not yet occurred." For latent-disease victims like Hetterly, whose mesothelioma did not manifest until decades after Brand's installation work ended, a statute of repose is uniquely harsh because it can extinguish the cause of action before the injury is even discoverable.

Washington's general three-year personal-injury limitation in RCW 4.16.080(2) operates with the judicially developed discovery rule for latent diseases. RCW 4.16.300, by contrast, is a hard outer boundary unaffected by discovery.

Legislative purpose

The repose statute was enacted to "protect architects, contractors, engineers, surveyors and others from extended potential tort and contract liability," as the Court of Appeals explained in Hudesman v. Meriwether Leachman Associates, 35 Wn. App. 318, 321, 666 P.2d 937 (1983). It is, in short, a construction-industry defense — not a general toxic-tort defense — and Polinder enforces that scope.

Interaction with the Washington Product Liability Act

The Washington Product Liability Act (WPLA), chapter 7.72 RCW, does not apply to claims that arose before July 26, 1981, per RCW 4.22.920. Because Lee Hetterly's claims arise from 1971–72 exposure, the WPLA is inapplicable, and the common-law doctrines of strict seller liability under Restatement (Second) of Torts § 402A and negligent-supplier duty under Restatement (Second) of Torts § 388 govern instead. This rule is significant for any Washington mesothelioma case arising from pre-1981 exposure — a category that includes most asbestos-related disease claims now reaching diagnosis and litigation.

What Is the Condit Test for an Improvement Upon Real Property?

The controlling Washington test was articulated forty years before Polinder in Condit v. Lewis Refrigeration Co., 101 Wn.2d 106, 676 P.2d 466 (1984). Condit held that the repose statute does not apply to a freezer-tunnel conveyor belt installed at a food-processing plant — it was an "accoutrement to the manufacturing process," not an improvement on real property.

The Condit court adopted this rule, quoting Brown v. Jersey Central Power & Light Co., 163 N.J. Super. 179, 195, 394 A.2d 397 (1978):

"The legislative intent … quite obviously was not to limit the exposure of manufacturers and purveyors of products which are used in the factory, shop or home, or those who service these products. … [T]he intent of the language of the statute was to protect those who contribute to the design, planning, supervision or construction of a structural improvement to real estate and those systems, ordinarily mechanical systems, such as heating, electrical, plumbing and air conditioning, which are integrally a normal part of that kind of improvement, and which are required for the structure to actually function as intended." (Condit, 101 Wn.2d at 110–11.)

The Polinder majority distilled Condit into a two-prong question: did the defendant's activities (1) contribute to a structural improvement to real estate, or (2) contribute to systems integrally a normal part of that improvement and required for it to function as intended? Both prongs were satisfied at Cherry Point — the refinery, "composed of miles of piping systems, multiple vessels, and related equipment," is itself an improvement, and thermal insulation is an integral system. Condit also cautioned the repose statute should not become an end-run around product liability: "Mechanical fastenings may attach a machine to the building, but they do not convert production equipment into realty."

How Did Polinder Bifurcate Seller and Contractor Duties?

The most important new contribution of Polinder is its articulation of a capacity-based rule: a defendant who wears two hats — construction contractor and product seller — has repose-protected construction claims and unprotected seller claims, and the plaintiff is entitled to litigate the seller theory on its own terms.

The activity-based framework

The rule traces to Pfeifer v. City of Bellingham, 112 Wn.2d 562, 568, 772 P.2d 1018 (1989): "when builders also engage in the activity of selling, they should face the liability of sellers." Pfeifer established that "the focus is on activities" — protection or exposure under RCW 4.16.300 turns on what the defendant did, not what label it carries. The product-liability rationale was articulated in Simonetta v. Viad Corp., 165 Wn.2d 341, 355, 197 P.3d 127 (2008): the seller "is in the best position to know of the dangerous aspects of the product and to translate that knowledge into a cost of production against which liability insurance can be obtained."

Products incorporated into improvements

Morse v. City of Toppenish, 46 Wn. App. 60, 729 P.2d 638 (1986), held that a diving board incorporated into a swimming pool was still subject to product-liability law. Polinder extended this principle to asbestos insulation in a refinery, explaining that "[c]laims arising from breaches of independent product seller or supplier duties are not barred merely because a product is incorporated into an improvement on real property." Separately, Cameron v. Atlantic Richfield Co., 8 Wn. App. 2d 795, 442 P.3d 31 (2019), held that claims based on a defendant's activities as a premises owner — distinct from construction activities — are also not barred by RCW 4.16.300.

The four-factor seller-status checklist

The Polinder majority identified four record facts that support a reasonable inference of seller status (majority op. at 9). For Washington practitioners and claimants, those four facts function as a working checklist:

Seller-status factor	What it looks like in practice
1. Owner reliance on contractor's product expertise	The facility owner depends on the contractor (rather than its own engineering staff) to identify the right product for the job.
2. Contractor discretion in product selection	The contractor chooses the specific asbestos-bearing product rather than following a strict owner specification.
3. Resale at a marked-up price	The contractor purchases the product from a manufacturer and resells it to the owner at a markup, typically via the prime-contract or subcontract terms.
4. Post-construction product retention	Unused product remains on site after substantial completion, evidencing a sale of goods rather than a labor-only installation.

These facts collectively transform a "labor-only installer" into a "product seller," and they are the operative fact pattern Washington claimants will need to establish — or rebut — under post-Polinder practice.

How Did Polinder Resolve the Maxwell–Welch Split?

Two Court of Appeals decisions in 2020 and 2023 reached opposite conclusions on Brand's repose defense at Cherry Point. The Washington Supreme Court granted direct interlocutory review specifically to resolve the split.

Maxwell (Division II, 2020) and Welch (Division I, 2023)

Maxwell v. Atlantic Richfield Co., 15 Wn. App. 2d 569, 583, 476 P.3d 645 (2020), held that the question is whether the defendant's activities "involved" construction of a real-property improvement, and affirmed summary judgment for Brand on that ground. Polinder rejected Maxwell's "involved" formulation: "The construction statute of repose requires Brand to show more than its activities simply 'involve' construction or 'relate to' construction."

Welch v. Brand Insulations, Inc., 27 Wn. App. 2d 110, 531 P.3d 265 (2023), reversed summary judgment, holding that the proper inquiry is whether the activities "contributed to a structural improvement or an integral system." On the Welch record, Brand had not put on sufficient expert evidence to satisfy that test.

How Polinder reconciled the split

Polinder held that Welch's criticism of Maxwell "is well taken" but adopted a refined formulation rather than wholly endorsing Welch's "structural improvement or integral system" gloss. The majority made two clarifications: first, "improvement" is broad and not limited to buildings or structural aspects (citing Black's Law Dictionary 904 (12th ed. 2024)); second, operational status does not change the legal character of an improvement: "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 role of expert evidence

What ultimately mattered was that Brand supplied the Sinquefield Declaration from a licensed professional engineer with 40 years of chemical-process experience, establishing that thermal insulation is necessary for refinery operation under the first law of thermodynamics and that Cherry Point could not operate as intended without it. The Estate's counter-evidence — ARCO engineer Abe Johnson's deposition testimony that "refineries can operate without insulation" — did not address whether refineries can operate as intended without insulation. Welch denied summary judgment because Brand lacked the expert proof; Polinder reversed because Brand had it. With proper expert foundation, insulation installation at a petroleum refinery falls within construction repose for claims based on the installation activity.

How Do Other States Handle Construction Repose in Asbestos Cases?

Washington is not alone in confronting the construction-repose-in-asbestos puzzle, but states have diverged on the length of the repose period and on whether asbestos cases receive a carve-out.

Jurisdiction	Statute	Repose period	Asbestos treatment
Washington	RCW 4.16.300 / .310	6 years	Construction claims barred; seller and supplier claims survive (Polinder)
Illinois	735 Illinois Compiled Statutes (ILCS) 5/13-214	10 years	Asbestos exemption under § 13-214(f), effective June 1, 2015; pre-2015 Stanley v. Ameren barred claims
California	California Code of Civil Procedure (CCP) §§ 337.15, 340.2	10 years / 1-year discovery	Asbestos discovery rule governs (CCP § 340.2)
Oregon	Oregon Revised Statutes (ORS) 12.135	6–10 years	No asbestos carve-out
Texas	Texas Civil Practice & Remedies Code § 16.009	10 years	Applied to chemical-plant asbestos cases under existing precedent
New York	New York Civil Practice Law and Rules (CPLR) § 214-c	3 years from discovery	Discovery-based; no construction repose
Idaho	Idaho Code (I.C.) § 5-241	6 years	No carve-out
Montana	Montana Code Annotated (MCA) § 27-2-208	10 years	No carve-out

The Stanley v. Ameren parallel

The most directly comparable out-of-state authority is Stanley v. Ameren Illinois Co., 982 F. Supp. 2d 844, 862–63 (N.D. Ill. 2013), which held as a matter of law that asbestos-containing insulation at a power plant constituted an improvement on real property under Illinois' construction repose statute. The Welch court had distinguished Stanley on the ground that the predicate facts — insulation as worker-protective and operationally necessary — were absent on the Welch record. Polinder held those facts were present at Cherry Point and effectively brought Washington law into alignment with the Stanley outcome on the construction question, while preserving a parallel seller-liability path that Illinois later codified through its 2015 asbestos exemption.

Restatement framework note

Washington follows the Restatement (Second) of Torts §§ 388 and 402A for pre-1981 claims. The American Law Institute superseded § 402A with the Restatement (Third) of Torts: Products Liability (1998), but Washington has not formally adopted the Third Restatement for pre-WPLA cases, so the Second Restatement standard remains operative for Hetterly-era asbestos claims.

How Does Polinder Interact With Asbestos Bankruptcy Trusts?

Many of the manufacturers whose asbestos-containing insulation products Brand may have purchased and resold at Cherry Point now operate through bankruptcy-court-approved trusts established under 11 U.S.C. § 524(g). Polinder's seller-liability holding means Washington claimants may simultaneously pursue (a) trust claims against the original manufacturers and (b) tort claims against Brand (or its insurers) as a seller in its own right.

Trust	Status and key terms
Manville Personal Injury (PI) Settlement Trust	Active; operational November 28, 1988 after Second Circuit affirmance.
Pittsburgh Corning PI Trust	Active; reorganization plan confirmed May 2013; approximately $3.41 billion in funding; 19% payment percentage as of late 2024.
Owens Corning Fibreboard PI Trust	Active; plan effective October 31, 2006.
National Asbestos Workers Settlement (NARCO) Trust (Honeywell legacy)	Active; 12.2% payment percentage; mesothelioma scheduled value $75,000; approximately $6.32 billion in funding; Honeywell completed an approximately $1.327 billion divestiture in January 2023.
Bendix (Honeywell legacy)	No § 524(g) trust; legacy asbestos liability transferred to Delticus October 2025.
Crane Co. / John Crane Inc.	No § 524(g) trust; active tort defendants in asbestos litigation nationwide.
Brand Insulations, Inc.	No § 524(g) trust; no Chapter 11 reorganization; active defendant in Polinder.

Practical impact on combined trust and tort claims

Because Brand has not filed for § 524(g) bankruptcy, Polinder's seller-liability holding means a Washington claimant who establishes the four seller-status facts described above can pursue Brand and its general-liability insurers directly as a tort defendant, combined with parallel § 524(g) trust claims against the original product manufacturers. To explore how trust and tort recoveries can be combined under Washington law and the firm's case-development process, see Danziger & De Llano's free Washington case review.

Who Are the Other 52 Defendants?

The Polinder opinion's appendix lists 53 named defendants. AECOM Energy & Construction, Inc. is first-named; its parent AECOM (New York Stock Exchange (NYSE) ticker ACM) traces a lineage through Morrison Knudsen Corp. (1912–1996), Washington Construction Group (1996), Washington Group International (2000, acquired by URS Corporation in November 2007), and ultimately AECOM (which acquired URS in October 2014). AECOM's 2024 Form 10-K reports professional-liability accruals of approximately $831.8 million.

The 53-defendant appendix also includes engineering, procurement, and construction (EPC) contractors (Chicago Bridge & Iron, Foster Wheeler, McDermott), product manufacturers (Crane Co., John Crane, Honeywell, General Electric (GE), Union Carbide, Goulds Pumps, ITT, Flowserve), insulation contractors (CH Murphy/Clark-Ullman, Metalclad), and Metropolitan Life Insurance Company. Polinder does not adjudicate liability against any co-defendant; those defenses await trial-court treatment on remand.

What Does Polinder Mean for Washington Mesothelioma Claimants?

Who benefits

If a Washington claimant developed mesothelioma after working at — or living near — an industrial facility where insulation was installed by a contractor that selected the asbestos product, purchased it from a manufacturer, and resold it to the facility owner at a markup, Polinder opens a door Maxwell had closed. The six-year construction repose still bars claims based on the installation work itself, but it does not bar claims based on the contractor's seller and negligent-supplier duties.

The four facts that establish "seller" status

1. The facility owner relied on the contractor's expertise to choose the insulation product.
2. The contractor had discretion to select the specific asbestos product (rather than following the owner's specification).
3. The contractor bought the product from a manufacturer and resold it to the facility owner at a marked-up price.
4. Unused product remained on site after construction was finished, evidencing a sale of goods.

These facts are typically established through construction contracts, invoices, project records, depositions of surviving personnel, and expert engineering testimony. Building this evidentiary record is one of the first investigative steps an experienced Washington asbestos firm undertakes; Danziger & De Llano's intake team coordinates this kind of historical-record reconstruction as part of every case workup (free case evaluation with Danziger & De Llano).

Filing clock

Washington's general personal-injury limitation under RCW 4.16.080(2) is three years, measured under Washington's discovery rule from the date the claimant knew or reasonably should have known of the connection between asbestos exposure and the disease. Wrongful-death and survival procedures are governed by RCW 4.20.010 and RCW 4.20.046. Because the discovery rule applies to the general limitation but the construction repose is a hard outer boundary, time pressure on a Washington asbestos case is real even with Polinder's seller-liability opening. See Statute of Limitations by State for cross-jurisdictional filing deadlines.

Other Washington facilities with potential dual-role contractor profiles

Polinder's capacity-based test could affect litigation arising from many other Washington industrial sites, including BP Cherry Point Refinery (Whatcom County); other Pacific Coast refineries (Anacortes, Tacoma); the Hanford Nuclear Reservation (subject to potential federal-enclave overlay); Washington Public Power Supply System nuclear plants; Puget Sound pulp and paper mills; the ASARCO Tacoma Smelter; and Puget Sound Naval Shipyard (subject to potential federal Longshore and Harbor Workers' Compensation Act overlay). Whether any specific defendant fits the Polinder fact pattern is case-specific and requires investigation of the construction contracts, product-selection authority, and resale arrangements at issue.

What Happens Next on Remand?

Surviving claims

On remand, the King County Superior Court will address: (1) strict seller liability under Restatement (Second) § 402A — whether Brand was "engaged in the business of selling" insulation in a "defective condition unreasonably dangerous"; (2) negligent-supplier liability under § 388 — whether Brand knew or had reason to know the insulation was dangerous, failed to warn, and proximately caused injury; and (3) comparative-fault allocation under chapter 4.22 RCW (pure several liability for non-economic damages).

Open questions

Polinder did not answer several questions that will need separate adjudication:

• § 402A application to a 1971 contractor-seller. The majority noted (op. at 8 n.3) that the parties dispute whether Brand is strictly liable as a seller. That common-law question awaits remand.
• Constitutional challenge to RCW 4.16.300. The Article I, § 12 challenge was procedurally barred. A future case could revisit Lakeview Blvd. in light of Bennett v. United States's 2023 invalidation of the medical-malpractice repose statute.
• Legislative response. Washington has not enacted an asbestos carve-out comparable to Illinois' 735 ILCS 5/13-214(f).
• Co-defendants' defenses. Not addressed in Polinder; some defendants are § 524(g)-protected (Manville, Pittsburgh Corning, Owens Corning Fibreboard, NARCO), while others (AECOM, Crane Co., John Crane, Honeywell-Bendix) remain active tort defendants.

Persuasive impact in other states

States with similar construction-repose statutes — Oregon (ORS 12.135), Idaho (I.C. § 5-241), and Montana (MCA § 27-2-208) — may look to Polinder as persuasive authority. Illinois has already addressed the issue through its 2015 statutory exemption. Polinder's analytical structure — Pfeifer's focus on activity, Condit's structural-system test, and Morse's products-inside-improvements rule — provides a transportable framework for other jurisdictions facing the same issue.

Frequently Asked Questions

What did Polinder v. Brand Insulations decide?

The Washington Supreme Court held that asbestos-installation claims against Brand are barred by RCW 4.16.300's six-year construction repose, but Brand's independent duties as a product seller and negligent supplier of asbestos-bearing insulation survive and proceed on remand.

Does Polinder change Washington's general statute of limitations for asbestos cases?

No. The general three-year personal-injury limitation under RCW 4.16.080(2), measured under the Washington discovery rule, is unchanged. Polinder addresses the separate construction statute of repose in RCW 4.16.300, which is a hard outer boundary unaffected by discovery.

Why does the Washington Product Liability Act not apply to Hetterly's claims?

Because Lee Hetterly's exposure occurred in 1971–72, before the July 26, 1981, effective date of the Washington Product Liability Act. RCW 4.22.920 carves out pre-1981 claims, leaving common-law strict liability and negligent-supplier doctrines under Restatement (Second) §§ 388 and 402A to govern.

What is the difference between a statute of limitations and a statute of repose?

A statute of limitations starts when a cause of action accrues (often, when the injury is discovered) and runs from there. A statute of repose runs from a fixed event — substantial completion of construction, in the case of RCW 4.16.310 — and can extinguish the cause of action before the injury is discoverable. Polinder enforces the statute of repose but limits its scope to construction-capacity claims.

How do mesothelioma claimants prove "seller" status against an installation contractor?

The four-factor checklist articulated in Polinder is: owner reliance on the contractor's product expertise; contractor discretion in product selection; resale at a marked-up price; and retention of unused product after construction. Evidence typically comes from construction contracts, purchase orders, invoices, project records, and depositions of surviving personnel.

Related Resources at WikiMesothelioma

• Statute of Limitations by State — cross-jurisdictional filing-deadline comparison.
• Mesothelioma Statute of Limitations Reference — comprehensive limitations primer.
• Borel v. Fibreboard — the 1973 Fifth Circuit landmark establishing strict liability for asbestos manufacturers.
• Filing an Asbestos Exposure Claim — claim-filing procedure overview.
• Asbestos Trust Funds — § 524(g) trust system reference.
• Mesothelioma Wrongful Death Claims — survival and wrongful-death procedure.
• Insulation Workers — occupational profile for the trade most directly implicated in Polinder.
• Danziger & De Llano mesothelioma practice — free Washington case review and case-development support.

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