Washington upholds the Construction Statute of Repose's applicability to Asbestos Claims

On April 30, 2026, the Washington Supreme Court in Polinder v. Aecom Energy & Constr. Inc. found that a former refinery maintenance worker could not bring claims against an insulation company arising from his alleged asbestos exposure in the 1970s. RCW 4.16.300-.310 – Washington’s Construction Statute of Repose – generally requires claims against improvements to real property to be brought six years after substantial completion of the improvement. This decision arises from construction of the Cherry Point refinery in the late 1960s and early 1970s. During construction, an insulation company supplied and installed asbestos containing insulation — including selecting products, purchasing them from manufacturers, arranging delivery, and installing them throughout the refinery. Decedent Lee Hetterly later worked at Cherry Point and alleged exposures to asbestos from the insulation.

The procedural history includes a split in the Washington Court of Appeals Divisions 1 and 2 application and understanding of the breadth of Washington’s Construction Statute of Repose, resulting in an interlocutory review to resolve the conflict. There was no dispute that the claims accrued decades after substantial completion, so the applicability of the statute turns on whether the insulation installation contributed to the “construction of an improvement upon real property” and whether the claims “arose from” that construction.

The Supreme Court unanimously concluded that installation of thermal insulation at Cherry Point during refinery construction both contributed to the construction of an improvement on real property and involved systems that are a normal and integral part of a refinery required for it to function as intended. Accordingly, Hetterly’s claims arising from insulation installation (a “construction activity”) were barred by the construction statute of repose. Specifically, the Court found that “‘improvement’ is a broad term, and the protections of the construction statute of repose are not limited to individuals working on the structural aspects of a building, nor are they limited to improvements that are buildings.” In addressing “improvements,” the Court relied on evidence including design plans, specifications and expert testimony that thermal insulation is necessary for refineries to operate and that, without it, the refinery could not function as intended. The Court rejected the notion that insulation is a mere “accoutrement” to manufacturing, finding instead that it is an integral component of refinery systems. The majority further interpreted the statute’s “arising from” language, finding that the repose applies broadly to claims tied to construction, alteration, or repair of improvements.

The Court did, however (with one partial dissent), set boundaries on the application of the Construction Statute of Repose: when a defendant’s alleged liability can be established without proving its construction activity—i.e., based on independent obligations as a product seller or supplier—those claims are not barred. The majority acknowledged that line-drawing may be difficult, but rejected the concern that recognizing independent seller/supplier liability would undermine the statute. The majority additionally confirmed that plaintiffs do not avoid the repose issue by relabeling construction claims as product claims.

Accordingly, the majority reversed the trial court’s order denying the insulation company’s summary judgment motion on construction-based claims.

Justice McCloud concurred and dissented in part, arguing that the majority should not have addressed “seller liability,” and ruled that to the extent Hetterly’s claims were based on Brand’s activities as a product seller or as a negligent supplier of asbestos-bearing insulation, those claims were not so barred. Justice McCloud asserted that seller liability was not raised at the appellate level for direct discretionary interlocutory review, was not part of the conflict between the appellate court’s decisions, and was not decided by the trial court order under review. Consequently, he would reverse on the construction issue and remand, leaving any independent seller/supplier claims for the trial court to address in the first instance.