‘Virtual Certainty’ Equals ‘Actual Knowledge’ in Wash. for Latent Injury Diseases

Case File

When it comes to latent disease cases, the Washington Supreme Court did away with a decade-old precedent case to hold that an employer's virtual certainty that disease will occur satisfies the "actual knowledge" prong of the state's deliberate injury exception to the exclusive remedy rule. Simply Research subscribers have access to the full text of the decision.

Case

Cockrum v. C.H. Murphy, No. 102881-4 (Wash. 05/29/25)

What Happened

A worker developed mesothelioma after working decades for a manufacturer where he was exposed to asbestos, sometimes with no protective gear at all. It was undisputed that the manufacturer knew that asbestos was hazardous and could lead to long-term injures, and it was several decades after the worker's exposures to asbestos that the disease was discovered and diagnosed because of the latent nature of mesothelioma.

The worker brought a personal injury action against the manufacturer, claiming that it deliberately intended to injure him by exposing him to asbestos without proper warnings or protections.

Based on the manufacturer's assertions that employers were immune from suit absent their actual knowledge that injury was certain to occur, the trial court granted the manufacturer's motion for summary judgment. The Court of Appeals affirmed, and the worker appealed to the Washington Supreme Court.

Rule of Law

Washington's Industrial Insurance Act generally contains an exclusive remedy rule that provides that workers are entitled to compensation without regard to employer fault, and employers are immune from lawsuits arising from workplace injuries. However, employers are not immune from lawsuits if an injury results to a worker from the deliberate intention of the employer to produce such an injury.

What the Washington Supreme Court Said

According to the court, its decision in Walston v. Boeing Co., 334 P.3d 519 (Wash. 2014) was due for overruling because under its holding "no employee could sue for a latent disease like mesothelioma because they could never satisfy the level of certainty required there."

Instead, the court said that "virtual certainty" was sufficient to prove the employer's actual knowledge that injury was certain to occur.

Workers' Comp 101: In Walston, an employee was exposed to asbestos throughout the decades he worked for Boeing and was later diagnosed with mesothelioma, caused by inhaling asbestos fibers. It was undisputed that Boeing was aware of the hazards of asbestos exposure by the time of the employee's exposure; that asbestos exposure could manifest into diseases like cancer, even decades after exposure; and that recommended safety precautions could be taken to reduce asbestos exposure. Despite such knowledge, Washington's top court concluded that the employee could now show that Boeing had actual knowledge that injury was certain to occur because the employee's expert testified that asbestos exposure is never "certain" to cause mesothelioma or any other disease.

Why the need for a change? The court found that, under the Walston standard, latent diseases such as asbestos-related diseases could never satisfy the first prong of the deliberate intention test.

The court broke down the reasons why Walston was due for overturning.

Complete Certainty Requirement. Walston's requirement of complete certainty that a disease will occur is incorrect because it is inconsistent with Washington's workers' compensation statute and the policy that drives it. The law allows an employee to bring a cause of action against an employer if an injury results "from the deliberate intention" of the employer. The term "certainty" does not appear anywhere in the statute.

Legislative Policy. The state's workers' compensation law reflects the legislative policy that employers who deliberately intend to injure their employees do not enjoy general immunity from lawsuits for workplace injuries. The purpose of the deliberate intention exception is to hold employers accountable based on their intent to cause injury, not based on the type of injury that results.

Deliberate Intent. Walston denies recovery for diseases caused by employers' deliberate intent, according to the court. "Under Walston, ... employers are immune from suit for not only cancers like mesothelioma, but for any latent disease caused by their deliberate intent because it is 'near impossible to predict with absolute certainty how each exposure will affect a particular individual.'"

So, how does the "virtual certainty" standard work? According to the court, virtual certain that a latent disease will occur may be evidence by a number of factual circumstances, such as:

(1) The employer's knowledge of ongoing, repeated development of symptoms known to be associated with the development of latent disease over time.

(2) The employer's knowledge of symptoms developing in employees similarly situated to the plaintiff-employee.

(3) The timing of such symptoms developing prior to or contemporaneous with the plaintiff-employee's exposure.

(4) Whether the exposure arises from a common major cause within the employer's control.

Verdict: The court reversed and remanded to the trial court to reevaluate summary judgment under the new "actual knowledge" standard it announced.

Takeaway

A plaintiff suing for a work-related latent injury can satisfy the deliberate injury exception to Washington's exclusive remedy rule if she demonstrates that the employer had actual knowledge that latent were virtually certain to occur and willfully disregard such knowledge.

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