Mason v. Texaco Inc., 84-2220

• Decision Date: 28 November 1988
• Docket Number: No. 84-2220,84-2220
• Citation: 862 F.2d 242
• Parties: Prod.Liab.Rep.(CCH)P 11,981 Diana L. MASON, Individually and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff-Appellee, v. TEXACO INC., Defendant-Appellant, v. ASHLAND CHEMICAL COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 242

862 F.2d 242

Prod.Liab.Rep.(CCH)P 11,981

Diana L. MASON, Individually and as Administrator of the Estate of Otis W. Mason, Deceased, Plaintiff-Appellee, v. TEXACO INC., Defendant-Appellant, v. ASHLAND CHEMICAL COMPANY, Defendant-Appellee.

No. 84-2220.

United States Court of Appeals, Tenth Circuit.

Nov. 28, 1988.

Gerald L. Michaud (Richard D. Cordry and Dwight A. Corrin of Corrin & Krysl, with him on the briefs) of Michaud, Cordry, Michaud, Hutton & Hutton, Wichita, Kan., for plaintiff-appellee.

Ken M. Peterson (Robert W. Coykendall, with him on the briefs) of Morris, Laing Evans, Brock & Kennedy, Chartered, Wichita, Kan., for defendant-appellant.

Wesley A. Weathers of Weathers & Riley, Topeka, Kan., for defendant-appellee.

Before ANDERSON, BALDOCK and BRORBY, Circuit Judges.

BRORBY, Circuit Judge.

This products liability case involves claims of personal injury and wrongful death under Kansas law. Jurisdiction was based upon diversity of citizenship. 28 U.S.C. Sec. 1332. Following a fourteen-week trial, the jury returned a verdict against defendant Texaco Inc. (Texaco) and in favor of Diana L. Mason, individually and as administrator of the estate of Otis Mason (Mason), for damages arising from the death of Otis Mason. The jury found that Otis Mason developed leukemia and died after being exposed to benzene produced by Texaco. Texaco moved for a judgment notwithstanding the verdict or for a new trial. Texaco's motion was denied, and Texaco appeals, asserting numerous errors including: the incorrect application of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. Sec. 525 (1982); failure to submit to the jury the comparative fault of defendant Ashland Chemical Company as a phantom defendant after Ashland Chemical Company was dismissed by directed verdict; and erroneous jury instructions. We agree the district court's jury instructions were in error. Accordingly, we REVERSE and REMAND for a new trial.

In 1977, Otis Mason was serving in the United States Coast Guard as an instructor at the Coast Guard Engineering School at Yorktown, Virginia, when doctors diagnosed his condition as acute myelocytic leukemia. Otis Mason filed this lawsuit on August 14, 1978, alleging that his leukemia was caused by exposure to benzene, a solvent used in the classroom in a motor oil test kit. He died from leukemia on December 10, 1979. Thereafter, his widow, Diana L. Mason, was substituted as plaintiff in the personal-injury action for the pain and suffering, and wrongful death of Otis Mason. Mason alleged that the manufacturers and distributors of the benzene to which Otis Mason was exposed were liable for his injuries and death primarily because of their failure to warn adequately of the hazards of benzene inhalation.

Originally, Mason named as defendant Gerin Corporation (Gerin), the manufacturer of the kit which Otis Mason used to test properties of motor oil. Later, the complaint was amended to state claims against Gerin's supplier, Dooner & Smith Chemical Company (Dooner & Smith); and Dooner & Smith's suppliers, Mellen Chemical, Inc. (Mellen), Ashland Chemical Company (Ashland), and Texaco. By the time of trial, Texaco and Ashland remained as defendants in the lawsuit. At the conclusion of plaintiff's case, the court granted defendant Ashland's motion for directed verdict. The case was submitted against Texaco, although other parties, except Ashland, were listed on the verdict form for comparative-fault assessments. The jury found that the total damages were $9 million and that Texaco was 35% at fault. Judgment against Texaco was entered for $3.150 million.

I. SOLDIERS' AND SAILORS' CIVIL RELIEF ACT OF 1940

Texaco asserts two reasons the lower court erred in holding that the claims were not time-barred by the Kansas statute of limitations. First, the court misapplied the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. Secs. 501-591 (1982), to exclude from the Kansas limitation period the time during which Otis Mason was placed on the "temporary disability retired list." Second, the court misapplied the Act to Otis Mason, a career military employee without any showing of disability to bring legal suit.

The tolling provision of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. Sec. 525, provides in part as follows:

The period of military service shall not be included in computing any period now or hereafter to be limited by any law, ... for the bringing of any action or proceeding in any court, ... by or against any person in military service or by or against his heirs, executors, administrators, or assigns.

The Act bars any period of military service from being included in computing a statute of limitations for or against a person in the military service.

The Act defines "person in the military service" to include those in the Coast Guard. "Military service" means "active duty" under the Act, and "active duty" includes "the period during which a person in military service is absent from duty on account of sickness, wounds, leave or other lawful cause." 50 U.S.C.App. Sec. 511(1) (1982).

It is undisputed that in September 1977, Otis Mason was diagnosed as having acute myelocytic leukemia. On March 15, 1978, he was placed on the "temporary disability retired list." On November 5, 1979, Otis Mason was permanently retired, and on December 10, 1979, he died as a result of leukemia. The question presented is whether placement on the "temporary disability retired list" is a "discharge from active service" or merely an "absen[ce] from duty on account of sickness," as anticipated by Sec. 511(1). Under the former, a statute of limitations is not tolled; under the latter, the statute of limitations is tolled. We hold that placement on the "temporary disability retired list" constitutes "absen[ce] from duty on account of sickness" under the Act, and therefore the period of limitations provided by the Kansas two-year statute of limitations, Kan.Stat.Ann. Sec. 60-513(a) (1983), was tolled from March 15, 1978, until November 5, 1979. See Cruz v. General Motors Corp., 308 F.Supp. 1052 (S.D.N.Y.1970).

Texaco further argues that the lower court erred in applying the Soldiers' and Sailors' Civil Relief Act of 1940 to Otis Mason, a career military employee. Citing Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir.1977), Texaco urges this court to adopt a broad rule that the tolling provision of 50 U.S.C.App. Sec. 525 of the Soldiers' and Sailors' Civil Relief Act of 1940 does not apply to a career serviceman who has not shown that military service handicapped him from asserting a claim. Although the court in Pannell sought to interpret Sec. 525, the court's conclusion is predicated upon a combined reading of Secs. 521 and 525. Section 521 provides for stay of proceedings and requires the serviceman to demonstrate that his status creates an inability to fully assert or defend a claim. Section 525 contains no such condition precedent. Even so, the court in Pannell imposed upon Sec. 525 the requirement of Sec. 521 and concluded that the tolling provision of the Soldiers' and Sailors' Civil Relief Act of 1940 was inapplicable to a career serviceman who has not shown that he was handicapped by his military service from asserting any claim he had prior to the expiration of the prescribed period. Pannell, 554 F.2d at 225. We cannot accept this interpretation of 50 U.S.C.App. Sec. 525 of the Soldiers' and Sailors' Civil Relief Act of 1940.

In our view, the language of the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.App. Sec. 525, is clear and unambiguous. We find no reason to ignore the plain meaning of the statute, and we are persuaded that the correct course to follow is set forth in Ricard v. Birch, 529 F.2d 214 (4th Cir.1975); and Bickford v. United States, 228 Ct.Cl. 321, 656 F.2d 636 (1981). The career status of Otis Mason does not negate the application of Sec. 525. The only condition to Sec. 525 is military service. That condition was met during Mason's placement on the "temporary disability retired list," and therefore the period of limitations was tolled from March 15, 1978, until November 5, 1979. Mason's naming of Texaco as a party on July 14, 1980, was within the period of limitations.

II. COMPARATIVE FAULT

Texaco next contends that the court erred in not submitting to the jury Ashland's possible comparative fault. The court refused to include Ashland as a phantom defendant on the verdict form for determination of comparative fault because Ashland had been granted a directed verdict at the close of the plaintiff's case. Under Kansas law, all types of fault, regardless of degree, are to be compared in order to apportion the causal responsibility for the damages. Hardin v. Manitowoc-Forsythe Corp., 691 F.2d 449, 454 (10th Cir.1982).

We have stated previously in Hardin that a scintilla of evidence is not sufficient to justify submitting a nonparty to the jury as a phantom defendant, and that the judge should apply the directed verdict standard when deciding which nonparties to submit as phantoms on the verdict form. Id. at 459 n. 7. Although the standard for granting a directed verdict has varied somewhat over time, compare Cockrell v. Boise Cascade Corp., 781 F.2d 173, 177 (10th Cir.1986), with Thompson v. Kerr-McGee Refining Corp., 660 F.2d 1380, 1389 (10th Cir.1981), cert. denied 455 U.S. 1019, 102 S.Ct. 1716, 72 L.Ed.2d 137 (1982), we find no error in the legal standard applied by the trial judge. We do not review the correctness of the judge's factual findings as they apply to the issue of naming phantom parties on the verdict form because retrial of this case may present new factual issues on the propriety of including the phantom parties.

We do note, however, that the propriety of the directed verdict granted to Ashland at the close of the plaintiff's case is not before this court. Mason has not raised that issue on appeal. Texaco had...