When Can a Claimant Sue a Retailer In Lieu of a Product Manufacturer and Who Has The Burden Proof Under the Washington Products Liability Act (“WPLA”)?

From the Desk of Brian Schiewe: The WPLA limits when a retailer of a product can be sued in lieu of the product’s manufacturer. These statutory conditions generally turn on whether the plaintiff can prove that the chances of collecting from the manufacturer are close to impossible.  But which party has the burden of proof in that context? And how does a Court determine if a party has produced enough evidence to support their motion? Read on to find out.

Claims Pointer:

In this case, the Washington Court of Appeals addressed whether a summary judgment motion was proper against a retailer of a wood stove who was being sued in place of the manufacturer. The Court held that summary judgment was not proper because the claimant was required to produce more than “conclusory statements” to support their summary judgment motion. More importantly, the Court ruled that the burden of proof is on the claimant – not the seller – to establish that a seller is liable in the manufacturer’s place.  

American Family Mutual Ins. Co. v. Wood Stoves Etc., Inc., 83528-9-I, 2022 WL 9731624 (Wash. Oct. 17, 2022)

Facts:

In 2019, Lavonee Jaff and Joseph Scott purchased a Ravelli Group brand wood pellet stove from Wood Stoves Etc. Inc. (“Wood Stoves”). Two days after they purchased the stove, the stove caught fire. Scott was able to extinguish the fire, but later that same evening, the stove reignited and Scott was forced to call the fire department to fully extinguish the blaze.

Jaff and Scott had a homeowner’s insurance policy through American Family Mutual (“AmFam”), which paid $115,355.88 for the fire damage to the home. After making that payment, AmFam filed a subrogation suit against Wood Stoves to recover damages under the Washington Product Liability Act.

In October 2021, AmFam moved for summary judgment. In support of their motion for summary judgment, AmFam argued that they were suing Wood Stoves because they would have difficulty recovering from Ravelli Group, the manufacturer of the stove. AmFam did not supplement their motion with any substantive evidence, instead merely stating that Ravelli was an Italian corporation and that there was “no evidence” of Ravelli contacts in Washington that would establish jurisdiction.

Summary judgment was granted, and Wood Stoves appealed.

Law:

Under the WPLA, a product seller, other than a manufacturer, may only be held liable if certain express conditions are met including:

1. [n]o solvent manufacturer who would be liable to the claimant is subject to service of process under the claimant’s domicile or the state of Washington; or
2. [t]he court determines that it is highly probable that the claimant would be unable to enforce a judgment against any manufacturer.

RCW 7.72.040(2)(a)–(b).

If the moving party fails to meet this evidentiary burden, summary judgment should not be entered, regardless of what evidence the nonmoving party submits. Jacobson v. State, 89 Wn.2d 104, 108, 569 P.2d 1152 (1977).  

Analysis:

On appeal, AmFam argued that they, as the claimant, were not required to establish the elements under RCW 7.72.040(2)(a) and (b) to prove that Wood Stoves, as the seller, was liable. Instead, AmFam asserted that the statute functioned as an affirmative defense that the seller must prove to establish that a manufacturer is liable in the seller’s place.

The Court vehemently disagreed with AmFam’s characterization of the statute, stating that AmFam’s proposed interpretation would produce an “absurd” result that would contradict the plain language of the statute, and subvert the explicit legislative intent of the WPLA to reduce liability for nonmanufacturer sellers of products. The Court, therefore, held that the requirements of RCW 7.72.040(2) are statutory elements that the claimant must prove, not an affirmative defense that the seller must prove.

The Court then went on to address AmFam’s motion for summary judgment.  In support of their motion for summary judgment, AmFam argued that Ravelli was not subject to service of process under the laws of Washington and that it was highly unlikely that AmFam could enforce a judgment against Ravelli. AmFam argued that, under the statute, they were entitled to recover from Wood Stoves instead of Ravelli. However, Wood Stoves argued that Ravelli could be served under Section 14 of the Hague Convention, which covers service abroad of judicial documents in civil matters. AmFam failed to rebut this argument in their reply and did not provide any evidence of the service difficulty other than stating that service against Ravelli would be difficult.

The Court ultimately found that this argument from Wood Stoves raised a genuine issue of material fact as to the service of process question and that AmFam was required to “do more than make conclusory statements about the difficulty of suing the manufacturer . . . in order to obtain judgment against Wood Stoves.”

Therefore, because a genuine issue of material fact persisted that AmFam did not counter with any concrete evidence, the Court of appeals reversed and remanded this matter for further proceedings.   

Big Picture:

Under the WPLA, the burden is on the plaintiff/claimant to show that they have met the statutory elements of RCW 7.72.040(2)(a) and (b). These are not treated as an affirmative defense where the burden is on the seller. Moreover, a plaintiff/claimant must establish this evidence by doing something more than making conclusory statements.