Virtual Certainty Standard for Latent Disease Under Washington's Industrial Insurance Act

Introduction

Cockrum v. C.H. Murphy/Clark-Ullman, Inc. (Howmet Aerospace, Inc.) marks a pivotal shift in Washington workers’ compensation law by redefining how “deliberate intention” to cause injury is proved when the injury takes the form of a latent disease such as mesothelioma.

Jeffrey Cockrum worked at Alcoa’s Wenatchee Works aluminum plant from 1967 to 1997. Over decades he was exposed—sometimes unprotected—to asbestos, later developing mesothelioma. Under Washington’s Industrial Insurance Act (IIA), employers are generally immune from civil suit for workplace injuries, but an exception exists when an employer “deliberately intend[s]” to produce injury (RCW 51.24.020).

At trial and on appeal, Howmet (Alcoa’s corporate successor) obtained summary judgment under the precedent of Walston v. Boeing Co. (2014), which held that an employer must have “absolute certainty” that a given exposure would cause disease to satisfy the “actual knowledge” prong of deliberate intention. Because scientific evidence concedes that asbestos exposure—even in high doses—does not guarantee mesothelioma in every individual, lower courts concluded no genuine issue of fact existed.

The Washington Supreme Court, en banc, reversed. Justice Montoya-Lewis, writing for the majority, overruled Walston and held that in latent disease cases an employer’s “virtual certainty”—rather than absolute certainty—of injury suffices to establish the “actual knowledge” requirement of the deliberate injury exception.

Summary of the Judgment

The Supreme Court reversed summary judgment for Howmet Aerospace, ruling:

Walston v. Boeing’s “absolute certainty” standard improperly excluded all latent disease claims from the deliberate intention exception.
The IIA’s plain text defines “injury” to include “disease” (RCW 51.24.030(3)), and policy demands redress when employers deliberately expose workers to hazards that are virtually certain to cause disease.
Birklid v. Boeing’s two‐pronged test stands, but in latent disease cases the “actual knowledge” element is satisfied by proof that an employer knew disease was virtually certain to result from the exposure and willfully disregarded that knowledge.
Alcoa had records from at least the 1950s showing employees developing pleural thickening, plaques, fibrosis and asbestosis. Cockrum’s medical experts linked his mesothelioma to cumulative asbestos exposure. These facts raise a genuine issue whether Alcoa knew disease was virtually certain for exposed workers and deliberately exposed Cockrum nonetheless.
The case is remanded for summary judgment under the revised “virtual certainty” standard without disturbing Birklid’s core test or its application to immediate and visible injuries.

Analysis

Precedents Cited

Perry v. Beverage (1922) and Delthony v. Standard Furniture Co. (1922): early cases holding that only intentional torts—e.g., assault—fell within the deliberate injury exception under the IIA.
Birklid v. Boeing Co. (1995): refined the exception to cover any injury caused by deliberate intent, adopting a two‐pronged test: (1) actual knowledge that injury was certain to occur, and (2) willful disregard of that knowledge. Birklid applied this to a chemical exposure case where Boeing was warned employees would become ill from phenol-formaldehyde resin but proceeded without safeguards.
Baker v. Schatz (1996) and Hope v. Larry’s Markets (2001): demonstrated that repeated, continuous chemical injuries (dizziness, rashes, nausea) could meet Birklid’s actual knowledge standard when an employer knew injury was certain unless the hazard were remedied.
Shellenbarger v. Longview Fibre Co. (2004): held that mere knowledge of asbestos hazard—and lack of symptoms among contemporaries—did not prove an employer actually knew injury was certain to occur.
Walston v. Boeing Co. (2014): extended Shellenbarger, holding that because asbestos exposure does not guarantee mesothelioma or asbestosis in every individual, no employer could have actual knowledge that injury was “certain.” Walston closed the door on latent disease suits.
Vallandigham v. Clover Park School District (2005): reaffirmed that probability or foreseeability—rather than certainty—of injury does not meet the deliberate intent test.

Legal Reasoning

1. Statutory Text and Legislative Purpose: RCW 51.24.020 grants a civil claim when an injury—including “disease” (RCW 51.24.030(3))—“results from the deliberate intention” of an employer. The majority held that reading diseases out of the exception conflicts with the statute’s plain language and the IIA’s policy of deterring employers who intentionally hurt workers.

2. Narrow Scope of the Exception: Birklid’s test remains in force, but its “certainty” requirement must reflect the nature of disease. The court distinguished immediately apparent injuries (e.g., rashes, burns) from latent diseases that manifest only after long latency periods.

3. Overruling Walston: Walston’s “absolute certainty” rule was overturned as both incorrect—because it contradicted the text and purpose of the IIA—and harmful—because it deprived all employees of recourse when diseases resulted from deliberate employer conduct.

4. Virtual Certainty Standard: In latent disease cases, evidence of “virtual certainty” can satisfy the actual knowledge prong. Factors may include:

Documentation of recurring disease‐related symptoms (e.g., pleural plaques, fibrosis) among work cohorts.
Medical monitoring data showing ongoing manifestation of precancerous conditions.
Timing of symptoms prior to or concurrent with the plaintiff’s exposures.
Control over a common, pervasive hazard within the employer’s operations.

5. Willful Disregard: Even if virtual certainty is proved, liability depends on whether the employer willfully disregarded known risks—i.e., knew protective measures could reduce or avoid harm but chose not to implement them.

Impact

Employees with latent occupational diseases (asbestos, silica, chemical carcinogens) can now seek civil remedies under the deliberate injury exception if they prove an employer knew disease was virtually certain and did nothing to prevent it.
Employers must reevaluate their historical knowledge bases, safety protocols, and medical monitoring records. Virtual certainty evidence—such as decades of employee health data—can expose employers to tort liability beyond workers’ compensation.
The decision preserves the IIA’s no‐fault compensation system for most industrial injuries, while ensuring that employers who consciously expose workers to known, highly hazardous substances remain accountable in tort.
Legislative bodies may consider amendments to clarify the “deliberate intention” standard or to adjust the scope of employer immunity in light of evolving scientific understanding of occupational diseases.

Complex Concepts Simplified

Industrial Insurance Act (IIA): Washington’s no‐fault workers’ compensation system giving employees benefits for workplace injuries in exchange for broad employer immunity.
Deliberate Injury Exception (RCW 51.24.020): Carves out a tort remedy when an employer intentionally—rather than accidentally—causes an injury.
Actual Knowledge: The employer must know, not merely suspect, that an injury is bound to happen from its conduct.
Willful Disregard: Having known the certainty of harm, the employer consciously chooses to ignore or fail to mitigate the risk.
Latent Disease: An illness (e.g., cancer) that develops over many years after exposure, without immediate signs of injury.
Virtual Certainty: A near‐100% level of confidence—short of mathematical absolute—in predicting that the exposure will cause the disease.
Summary Judgment: A pre‐trial ruling that there is no genuine dispute of material fact, allowing a case to be decided as a matter of law.

Conclusion

Cockrum v. C.H. Murphy/Clark-Ullman, Inc. revises Washington’s approach to the IIA’s deliberate injury exception when injuries take the form of latent diseases. By overruling Walston and adopting a “virtual certainty” standard, the court restores a tort pathway for workers deliberately exposed to hazards that are practically guaranteed to cause disease.

This decision strikes a careful balance: it upholds the IIA’s core no‐fault compensation framework while ensuring that employers who knowingly and recklessly expose workers to invisible, long‐term dangers may face liability beyond the compensation fund. In doing so, Washington courts acknowledge both the evolving science of occupational health and the legislature’s intent to deter employers from treating human life as a disposable component of industrial progress.