Washington Supreme Court hears arguments over whether refinery insulation is covered by construction statute of repose

David Shaw, counsel for Brand Insulation, told the Washington State Supreme Court that the Court should adopt the Maxwell Division II approach and treat the refinery itself as the "improvement" under the state's statute of repose. "The Maxwell analysis is correct," Shaw said, arguing that whether a contractor's work was "integral" to the improvement is a legal question that supports repose protection for installing contractors.

John Stefan, representing Frederick Pollander and family members, countered that the record and relevant doctrine point to products-liability principles. Stefan urged the Court to apply Condit and Pfeiffer together, saying the case "is a seller case where the dog has finally caught the car with Maxwell," and argued sellers who furnish dangerous products to a jobsite should remain subject to products-liability rules rather than being insulated by the construction repose.

Why it matters: The Court is resolving how to decide when work or items at a multi-acre refinery count as an "improvement to real property" under the statute of repose. The outcome could affect whether installing contractors are time-barred from liability and whether suppliers or sellers of materials (including asbestos-containing insulation) remain subject to product-liability claims.

What the Court heard: Shaw framed the dispute as statutory interpretation rather than a factual fight, arguing the statute's focus is on construction activity and that precedent (Maxwell) supports treating the refinery as the improvement. He told the justices that, even under the Welch formulation, Brand presented ER 702-qualified expert evidence at the trial-court hearing to satisfy the "integralness" inquiry.

Justices repeatedly pressed both sides for a workable rule. One justice proposed a practical test: if the work is "typically an essential part of the improvement," it should fall under the statute. Counsel for Brand agreed that such a rule would apply to contractors (installers) but not necessarily to others in the supply chain.

Stefan urged the Court to distinguish between claims that "arise from construction" and those that arise from the sale or furnishing of products. He cited the Restatement (Second) of Torts —9 402A, Taber, Pfeiffer, and the Washington Product Liability Act to argue that a seller who furnishes hazardous material to a worksite should not automatically escape products-liability exposure by virtue of having bolted or attached a product to machinery.

Bench examples guided the discussion: justices asked whether heat exchangers on concrete pads, central air systems, window units, motors, diving boards and other items should be considered "accoutrements" to manufacturing or integral fixtures of an improvement. Counsel acknowledged that some determinations would be fact-dependent but urged the Court to provide principled guidance to trial judges about when summary judgment is appropriate.

Rebuttal and next steps: In rebuttal, Shaw emphasized Division 1 authority and statutory exceptions that exclude products incorporated by contractors from products-liability treatment, arguing the trial-court record and case law support repose protection here. The Court recessed after argument; no opinion or vote was announced. The matter remains pending before the Court.

The Court will issue a written opinion at a later date resolving whether the installation of insulation at the refinery is governed by the construction statute of repose or by products-liability principles.