787 F.2d 390 (8th Cir. 1986), 85-1304, Foster v. Johns-Manville Sales Corp.

Docket Nº:85-1304.
Citation:787 F.2d 390
Party Name:Gertrude FOSTER, Individually and as Personal Representative of the Heirs and Estate of John W. Foster, Deceased, Appellant, v. JOHNS-MANVILLE SALES CORPORATION, et al., Nicolet Industries, Inc. and Pittsburgh Corning Corporation, Appellees.
Case Date:March 26, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 390

787 F.2d 390 (8th Cir. 1986)

Gertrude FOSTER, Individually and as Personal Representative

of the Heirs and Estate of John W. Foster,

Deceased, Appellant,

v.

JOHNS-MANVILLE SALES CORPORATION, et al., Nicolet

Industries, Inc. and Pittsburgh Corning

Corporation, Appellees.

No. 85-1304.

United States Court of Appeals, Eighth Circuit

March 26, 1986

Submitted Dec. 12, 1985.

Brian Weinstein, Dallas, Tex., for appellant.

Daniel J. McDermott, Cedar Rapids, Iowa and John E. Swanson, Des Moines, Iowa, for appellees.

Before ROSS, Circuit Judge, BRIGHT, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Plaintiff Gertrude Foster appeals from the District Court's granting of defendants' motion for summary judgment on the ground that plaintiff's action is barred by Iowa's two-year statute of limitation for personal injury actions. For the reasons discussed below, we reverse and remand.

I.

Plaintiff and her husband, John W. Foster, filed this products liability action on March 12, 1982 to recover damages for personal injuries alleged to have been suffered by Mr. Foster because of his exposure to asbestos products manufactured by various corporations. Mr. Foster was a construction worker who cut and applied asbestos insulation to pipes and furnaces. He died on May 15, 1982, and plaintiff was substituted as the personal representative of his estate.

Defendant Johns-Manville filed for bankruptcy, and in March 1983 the District Court severed it from this action. The remaining defendants in the action, Nicolet and Pittsburgh Corning, filed motions for summary judgment on the ground that the action was barred by Iowa's two-year statute of limitation for personal injury actions. Iowa Code Sec. 614.1, subd. 2. Defendants contend that Mr. Foster was aware that he had asbestosis as early as 1972, and that this knowledge triggered the two-year limitation period in which to file suit. In support of their motions, defendants produced documentary evidence indicating that Foster had been diagnosed in 1972 as having asbestosis. The first document is entitled "Report of Consultation" and is dated July 31, 1980. This document appears to be a report written by a Dr. Lehman to Dr.

Page 391

Schumacher, Mr. Foster's family physician. 1 The report states that Foster "developed asbestosis of the lungs with pleural calcifications and this was why he was granted disability in 1973." Record at 81. The second document is a Social Security form entitled "Disability Determination and Transmittal." Several dates between April and July of 1972 appear on the document (apparently because of various dates of review at different agency levels). The document appears to be an agency determination that Foster was disabled from January 21, 1972 "due to chronic obstructive airway disease with asbestosis and emphysema," thus entitling Foster to Social Security disability benefits. Record at 189. Defendants cite to a "date of transmittal" entry of April 6, 1972 on the document to form the basis of a presumption (under agency regulations) that Foster received a copy of this document within five days thereafter. The third document, dated March 29, 1974, is a Social Security form entitled "Continuing Disability Review."...

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