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Williams v. CBS Corp.

Court of Appeals of Oregon

June 7, 2017

Clifton J. WILLIAMS, Sr., Plaintiff, and Shannon DORTCH, as personal representative for the Estate of Clifton J. Williams, Sr., Plaintiff Appellant,
v.
CBS CORPORATION, et al., Defendants, and MOORE Mc-Cormack RESOURCES, INC., Defendant Respondent.

          Argued and submitted January 15, 2016

         Multnomah County Circuit Court 110911475 Cheryl A. Albrecht, Judge.

          Richard Grant argued the cause for appellant. On the briefs were Meredith B. Good and Brayton Purcell, LLP.

          R. Daniel Lindahl argued the cause for respondent. On the brief were Stephen F. Deatherage, Jeanne F. Loftis, and Bullivant Houser Bailey PC.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Plaintiff is the personal representative for the estate of Clifton J. Williams, Sr. Williams worked in Portland's shipyards during the 1950s and later fell ill from asbestosrelated diseases. Prior to his death in 2013, Williams fled suit against defendant for negligence, claiming that he had been exposed to asbestos while working on one of defendant's ships in 1957. Defendant moved for summary judgment on the ground that any of its liabilities "that may [286 Or.App. 2] have existed prior to 1965 were transferred to another company" and, therefore, it could not be held liable for the alleged injuries suffered by Williams in 1957. The trial court granted defendant's motion. Plaintiff appeals the judgment granting the motion, assigning error to the court's determination that no genuine issue of material fact existed on the issue of transfer of liability. In particular, plaintiff contends that the court erred by denying her, the nonmoving party, the benefit of all reasonable inferences. Held: The trial court erred in granting summary judgment to defendant because there is a genuine issue of material fact regarding liability.

         Reversed and remanded.

         [286 Or.App. 3] ORTEGA, P. J.

         Plaintiff is the personal representative for the estate of Clifton J. Williams, Sr. Williams worked in Portland's shipyards during the 1950s and later fell ill from asbestosrelated diseases. Prior to his death in 2013, Williams filed suit against defendant for negligence, claiming that he had been exposed to asbestos while working on one of defendant's ships in 1957. As relevant to this appeal, defendant moved for summary judgment on the ground that any of its liabilities "that may have existed prior to 1965 were transferred to another company" and, therefore, it could not be held liable for the alleged injuries suffered by Williams in 1957. The trial court granted defendant's motion. Plaintiff appeals the judgment granting the motion, assigning error to the court's determination that no genuine issue of material fact existed on the issue of transfer of liability. In particular, plaintiff contends that the court erred by denying her, the nonmoving party, the benefit of all reasonable inferences. Because we conclude that there is a genuine issue of material fact regarding liability, we reverse and remand for further proceedings.

         We begin by recounting the facts that the parties agree are undisputed. MooreMc-Cormack Lines, Inc., owned the ship where Williams worked in 1957. In 1964, that company, which engaged in various commercial activities, decided to reorganize. As part of that endeavor, MooreMc-Cormack Lines, Inc., created a whollyowned subsidiary company to take on all of its shippingrelated operations. The parent company was renamed Moore and Mc-Cormack Co., Inc., and the subsidiary was named MooreMc-Cormack Lines, Incorporated. A detailed recitation of what happened next is not necessary to our discussion. Suffice it to say that the parent company was subsequently renamed once more as Moore Mc-Cormack Resources, Inc.-the named defendant in this case-and the subsidiary was eventually sold to another company that has since declared bankruptcy.

         The matter on which the parties disagree concerns the particulars of the reorganization of the parent company, in part, because the record does not contain the actual agreement through which the reorganization occurred. In [286 Or.App. 4] its motion for summary judgment, defendant claimed that, as part of the reorganization, it transferred all of its shipping assets and liabilities to the subsidiary and, thus, it could not be held liable for any injuries allegedly suffered by Williams. To support its claim, defendant submitted an affidavit by Fults, its records custodian, stating that the subsidiary had assumed all of the defendant's liabilities. That affidavit was accompanied by various exhibits documenting the reorganization process, including documents to or from the Maritime Administration, the Maritime Subsidy Board, the United States Secretary of Commerce, and the Securities and Exchange Commission. Defendant further argued that plaintiffs claim should have been addressed through the bankruptcy proceedings of the subsidiary's successor.

         Plaintiff, in turn, countered defendant's summary judgment motion by arguing that none of the documents submitted by defendant demonstrated that liabilities were actually transferred. In addition, plaintiff suggested that liabilities could not have been transferred because there was no "qualifying sale" of assets, given that defendant had retained all the capital stock of the subsidiary and $1, 000, 000 worth of assets. Ultimately, plaintiff claimed, "[t]here was not a full and complete transfer of assets and there is no evidence of a transfer of liabilities."

         The trial court agreed with defendant and granted its motion for summary judgment, concluding that, "[a]lthough there is no specific document delineating [defendant's] transfer of liabilities during the creation of the whollyowned subsidiary, there is significant and cumulative circumstantial evidence that the transfer occurred as part and parcel of the subsidiary's creation [.]" The court noted that the mere absence of an actual record of transfer did not support a finding that the liabilities were not transferred, especially where plaintiff had not pointed to any evidence in the record tending to negate the inferences raised by defendant's evidence.

         On appeal, plaintiff argues that the court erred in granting summary judgment to defendant. Plaintiff's primary argument is that the court erred by denying her the benefit of all reasonable inferences. Plaintiff contends, as [286 Or.App. 5] she did below, that the affidavit and business records provided by defendant in support of its motion are insufficient to demonstrate that any liabilities were ever transferred or assumed by the subsidiary company. Plaintiff "acknowledges that the documents show the name change and the transfer of assets, " but notes that those documents fall short of establishing that the liability for Williams's injuries was ever assumed by any other entity. Plaintiff notes that "[f]rom the absence of documentation [of transfer of liabilities], a reasonable juror could just as readily conclude there is no such evidence." That is, plaintiff implies that defendant should have been able to produce ...


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