# Washburn v. Beatt Equipment Co. > Washington Supreme Court · November 25, 1992 · 120 Wash. 2d 246 URL: https://www.frixlaw.com/law-library/cases/9632704 ## Case - **Full name:** Norman Washburn, Et Al, Respondents, v. Beatt Equipment Company, Appellant - **Court:** Washington Supreme Court - **Decided:** November 25, 1992 - **Citations:** 120 Wash. 2d 246; 840 P.2d 860; 1992 Wash. LEXIS 280 - **Precedential status:** Published - **Opinion:** Concurrence by Dolliver - **Judges:** Brachtenbach, Dolliver - **Cited by:** 176 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9632704 ## How later opinions describe it (automated extraction) - holding the comparability approach "is inimical to the foundation of particularized justice. Defendant would consign damages for personal injuries to the cold world of accounting balance sheets. In effect, defendant argues that a verdict can never exceed what has historically … - holding defendant to definition of “manufacturer” in a jury instruction proposed by defendant itself, and declining, therefore, to decide if that was a proper statement of the law for statute of repose purposes - recognizing that arguments or theories not presented to the trial court will not be considered on appeal - noting that RCW 4.22.070 amounted to “an exception that has all but 9 swallowed the general rule” of joint and several liability ## Opinion text Dolliver, J. (concurring) — I write separately because I disagree with the majority's presentation of the issue. I uphold the jury's verdict, however, because I believe, without further legislative guidance on the intended scope of the *302 1986 amendment to RCW 4.16.300, that jury instruction 17 comports with the ordinary meaning of the term "manufacturer". The majority limits its analysis to whether the defendant is a manufacturer under jury instruction 17 because the defendant proposed and never excepted to that instruction. See majority, at 255-57. However, the defendant proposed the instruction only after it moved for summary judgment and a directed verdict objecting to the theory that it was a manufacturer. Under these circumstances, the failure to object to an instruction does not make that instruction the law of the case. See Rhoades v. DeRosier, 14 Wn. App. 946 , 948 n.2, 546 P.2d 930 (1976); Geer v. Sound Transfer Co., 88 Wash. 1, 3 , 152 P. 691 (1915); see generally 75B Am. Jur. 2d Trial § 1461 (1992); 88 C.J.S. Trial § 414 (1955); cf. Mutual of Enumclaw Ins. Co. v. Cox, 110 Wn.2d 643, 651 , 757 P.2d 499 (1988) (an instruction will not become the law of the case when the trial court and opposing party knew the objecting party's position). The issue presented for resolution is whether the defendant is within the class of persons protected by the statute of repose. The statute protects "person[s]" from "all claims or causes of action of any kind . . . arising from such person having constructed, altered or repaired any improvement upon real property," but does not apply "to claims or causes of action against manufacturers." RCW 4.16.300. The plaintiffs argue that a builder who engages in any "manufacturing" activity loses the protection of the statute of repose. The plaintiffs contend the definition of "manufacturer" in the product liability act (RCW 7.72) (PLA) is applicable, and if a builder meets that definition, then it falls outside the protections of the statute of repose. Conversely, the defendant argues the PLA definition of manufacturer does not apply and only "pure manufacturers" fall outside the scope of the statute. The defendant relies on the context in which the amendment was enacted together with some legislative history to argue that the amendment only applies *303 to "manufacturers of asbestos and other pre-manufactured products." Brief of Appellant, at 38. Neither argument is entirely persuasive. While the statute of repose and the PLA are related in that claims against manufacturers must now be brought under the PLA, the Legislature did omit any reference to the PLA in the 1986 amendment. See Reply Brief of Appellant app. C (Second Draft, Proposed SHB 573); Brief of Appellant app. H (voice vote deleting reference to PLA). Further, although there is some indication that the Legislature wanted to ensure it could pursue its claims against asbestos manufacturers, I am not persuaded the legislative history forecloses a broader definition of manufacturer. Consequently, the legislative intent regarding the scope of the amendment must be determined by reference to the ordinary meaning of its terms. See Dennis v. Department of Labor & Indus., 109 Wn.2d 467 , 745 P.2d 1295 (1987). A problem arises because the ordinary meanings of construct and manufacture seem to be synonymous. "Construct" means "to form, make, or create by combining parts or elements". Webster's Third New International Dictionary 489 (1971). "Manufacture" is defined as "to make from raw materials by hand or by machinery". Webster's, at 1378. "Raw material" is "material available, suitable, or required for manufacture, development, training, or other finishing process but not yet so used". (Italics mine.) Webster's, at 1887. In addition, the PLA definition of manufacturer includes the term "construct", but this term is also used in the statute of repose in defining persons who fall within its protection — persons who have "constructed . . . any improvement upon real property". RCW 4.16.300. Given the far-reaching consequences of this case, I am reluctant on the scant legislative history of the amendment and the synonymous meanings of "construct" and "manufacture" to divine the legislative intent regarding the applicability of the statute of repose to the defendant in this case. My sense is that the crux of this issue does not he in *304 whether Beatt Equipment Company engaged in the activity of construction or manufacturing, but rather in whether the result of its activity yielded an "improvement upon real property" or a "product" and in whether the injury was caused by the product or the improvement. Cf. Condit v. Lewis Refrigeration Co., 101 Wn.2d 106 , 676 P.2d 466 (1984) (a conveyor belt and refrigeration unit within an improvement to real property are more properly the subject of product liability law). Lacking legislative guidance, however, I uphold the verdict because I believe the jury found the defendant was a manufacturer under a definition which comports with the ordinary meaning of that term. Guy, J., concurs with Dolliver, J. Reconsideration denied February 3, 1993. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9632704. Public record. Not legal advice.