Publications
Analysis of Polinder v. Brand Insulations, Inc. and the Washington Construction Statute of Repose
The Washington Supreme Court’s recent decision in Polinder v. Brand Insulations, Inc., No. 102782-6 (Wash. Apr. 30, 2026), provides clarifications on how the construction statute of repose applies to contractors in asbestos litigation. By resolving conflicting appellate decisions, the Court established a more precise framework for evaluating when a contractor’s historical installation work is shielded from liability and when it is not.
Background: The Construction Statute of Repose
In Washington, the construction statute of repose, Wash. Rev. Code § 4.16.300 (2026), applies to claims arising from a person having "constructed, altered or repaired any improvement upon real property.” Wash. Rev. Code § 4.16.310 (2026) dictates that such claims must accrue within six years of the substantial completion of construction.
Unlike a traditional statute of limitations, which typically begins to run when a plaintiff discovers an injury, a statute of repose creates a strict outer time limit that extinguishes a cause of action after a specified period, even if the injury has not yet occurred or been discovered. The legislature enacted this statute to protect contractors and engineers from extended potential liability decades after a project is completed. See Hudesman v. Meriwether Leachman Assocs., 35 Wn. App. 318, 321, 666 P.2d 937 (1983) (citing Pinneo v. Stevens Pass, Inc., 14 Wn. App. 848, 545 P.2d 1207 (1976)); see also 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 144 Wn.2d 570, 578, 29 P.3d 1249 (2001).
Concept
Statute of Limitation (SOL)
Statute of Repose (SOR)
Trigger Event
Accrual of cause of action (discovery of injury)
Substantial completion of construction services
Primary Purpose
Encourages diligent prosecution of known claims
Provides a date certain for the end of legal liability
Duration (WA)
Generally, two-to-three years for torts
Six years for construction-related activities
Tolling
Often tolled by discovery or minority status
Generally, not tollable (hard outer wall)
Status of Right
Bars the remedy
Extinguishes the underlying right of action
For decades, the application of this statute was guided by Condit v. Lewis Refrigeration Co., 101 Wash. 2d 106, 676 P.2d 466 (1984), which held that the statute of repose protects individuals whose activities contribute to a structural improvement or to "integral" systems, such as heating or plumbing, that are required for the structure to function as intended. It does not protect manufacturers of heavy equipment or non-integral "accoutrements" housed within a building. Condit, 101 Wn.2d at 12.
Applying Condit to asbestos-containing industrial insulation led to a split in the Washington appellate courts:
The contextual approach: In Maxwell v. Atl. Richfield Co., 15 Wash. App. 2d 569, 476 P.3d 645 (2020), Division Two determined that a contractor was protected by the statute of repose because the installation of insulation occurred during the original construction of the refinery, which itself constituted as an improvement upon real property.
The evidentiary approach: In Welch v. Brand Insulations, Inc., 27 Wash. App. 2d 110, 531 P.3d 265 (2023), Division One rejected the Maxwell approach, holding that contractors must provide specific, competent evidence showing that their insulation work actively contributed to a structural improvement or an integral system necessary for the refinery's function.
The Polinder Decision
In April 2026, the Washington Supreme Court issued its decision in Polinder, resolving the conflict between Maxwell and Welch. The Court's opinion resolved the appellate split on two distinct but related grounds, each carrying significant implications for how contractors defend asbestos claims.
1. The Integral Systems Requirement
The Court agreed with the Welch framework, clarifying that a contractor must establish that their work contributed to the construction of an improvement on real property or to a system that is a normal and integral part of that improvement. In Polinder, the defendant successfully met this burden by submitting expert engineering testimony, which explained that a refinery cannot safely manage heat energy and mass balances without thermal insulation. Because the insulation was proven to be a "normal and integral component required for the Cherry Point refinery to function as intended," the Court ruled that the contractor's installation activities were protected by the six-year construction statute of repose.
2. The Product Seller Exception
While the installation of the insulation was protected, the Court ruled that the statute of repose does not shield contractors from claims arising from independent duties as a "product seller" or "negligent supplier." In Polinder, the record contained evidence that the contractor did not merely install the materials but also used their expertise to select the asbestos-bearing insulation, purchased it, and resold it to the facility owner at a marked-up price. Consequently, the Court held that the plaintiff's claims based on product seller or supplier liability were not barred by the construction statute of repose and could proceed.
Impact on Asbestos Cases and Defendants
The Polinder decision provides a framework for how asbestos cases involving contractors will be litigated moving forward:
Reliance on Expert Evidence
Contractors can no longer assume that working on a large industrial site automatically satisfies the statute of repose. Defendants must proactively utilize expert testimony to demonstrate that the specific piping or equipment they insulated was an integral system functionally necessary for the facility to operate.
Evaluating the Contractor's Role
Because plaintiffs can bypass the construction statute of repose by pursuing "seller" or "supplier" liability theories, discovery will heavily focus on a contractor's historical procurement role. Defendants will need to analyze historical contracts to demonstrate they were providing a unified construction service rather than acting as a retail merchant who purchased and resold hazardous materials.
Continued Importance of Proximate Cause
For claims that survive the statute of repose under the product seller exception, plaintiffs are still required to prove proximate cause under the standard set forth in Lockwood v. AC & S, Inc., 109 Wash. 2d 235, 744 P.2d 605 (1987). This requires demonstrating a reasonable connection between the plaintiff's injury and the specific asbestos product supplied by the defendant, analyzing factors, such as the plaintiff's proximity to the product, the expanse of the worksite, and the frequency and duration of the exposure.
Ultimately, the Washington Supreme Court's decision recalibrated the legal landscape for asbestos litigants by solidifying a strict six-year repose bar against pure construction liability, while simultaneously preserving a distinct, viable pathway for plaintiffs to pursue historical claims against contractors who also functioned as hazardous product sellers or suppliers. See Polinder v. Brand Insulations, Inc., No. 102782-6, slip op. at 7, 14-16 (Wash. Apr. 30, 2026).
Contractors can mitigate future liability by expressly stating in their agreements that the facility owner or client retains sole authority to choose, specify, and supply the materials used for the project.
Read more
