Facts: Strict liability standard in mesothelioma case

In that same appeal, Saberhagen, for the first time, also raised the argument that when two Washington appellate cases, Ulmer and Tabert, adopted § 402A strict product liability, it was a new rule that should not be applied retroactively under a three-part test from Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971); see also Seattle-First Nat’l Bank v. Tabert, 86 Wn.2d 145, 148-50, 542 P.2d 774 (1975); Ulmer v. Ford Motor Co., 75 Wn.2d 522, 531-32, 452 P.2d 729 (1969). Because Saberhagen had not presented its retroactivity argument to the trial court below, this court declined to address that issue, leaving it to Saberhagen to raise on remand.

On remand, Saberhagen brought this argument before the court in its second motion for summary judgment. There, Saberhagen contended that "[b]ecause § 402A was not the law of Washington in 1958, and because there was no other applicable theory of strict liability at that time, as a matter of law Saberhagen cannot be held liable to plaintiffs under a strict liability theory." On October 21, 2005, the trial court granted Saberhagen’s motion for partial summary judgment. Lunsford appeals.