On May 29, 2025, the Supreme Court of Washington, in
Cockrum v. C.H. Murphy/Clark-Ullman, Inc., revised the standard that applies when employees afflicted by latent diseases seek to hold their employers liable outside of the workers compensation (WC) system.
In this case, an employee who contracted mesothelioma filed a personal injury lawsuit against the employer alleging that the employer deliberately intended to injure him by exposing him to asbestos without proper warning or protection. The employer moved to dismiss the lawsuit, asserting that the intentional injury exception to WC exclusive remedy did not allow the claim to move forward because the employer lacked actual knowledge that the injury was
certain to occur.
The court, in its decision, recognized that the Washington Industrial Insurance Act allows employees to sue their employers for injuries resulting from employer deliberate intent. The court noted that it held, in its previous decision in
Birklid v. Boeing Co., that an employer can be found to have acted with deliberate intent when it (1) had actual knowledge that an injury was
certain to occur and (2) willfully disregarded that knowledge.
The court then went on to reject the standard it had promulgated in its 2014 decision of
Walston v. Boeing Co., which held that for latent disease cases, the first prong of the
Birklid test could only be met by a showing of
absolute certainty that a particular plaintiff would develop a particular disease. In overruling
Walston, the court found that in latent disease cases
virtual certainty is sufficient for an employee to satisfy the first prong of the
Birklid test.
With this decision, the court remanded the case to the trial court to apply the revised standard to the facts of the case.
For more information on other cases monitored by NCCI's Legal Division, visit previous Court Case Updates and
Court Case Insights under the
Legal section of
INSIGHTS on
ncci.com.
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