May v. AC & S, INC.

Decision Date29 January 1993
Docket NumberNo. 88-386 C (5).,88-386 C (5).
Citation812 F. Supp. 934
PartiesJohn L. MAY, Archbishop of St. Louis, et al., Plaintiffs, v. AC & S, INC., et al., Defendants.
CourtU.S. District Court — Eastern District of Missouri


E. Michael Murphy, Doreen D. Dodson, Katie Walsh, Mike Murphy, St. Louis, MO, C. Alan Runyan, Daniel A. Speights, Speights & Runyan, Hampton, SC, Charles Alan Seigel, The Stolar Partnership, St. Louis, MO, for plaintiffs.

Reed O. Gentry, Douglas N. Ghertner, Field, Gentry & Benjamin, Kansas City, MO, for Basic Inc.

John Mohan, Jeffer Glass, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, St. Louis, MO, for Cleveland Builders Supply Co.

Jan Steinberg, Gerald D. Morris, John S. Sandberg, Ronald L. Vance, Shepherd, Sandberg & Phoenix, St. Louis, MO, for Flintkote Co.

John Marshall, Burns, Marshall & Burns, Clayton, MO, for U.S. Mineral Products Co.

Thomas Walsh, Douglas King, Dennis O'Connell, Bryan Cave, St. Louis, MO, for W.R. Grace & Co.

Charles Dorkey, III, Haythe & Curley, New York City, Jim Shoemake, Francis Slay, Guilfoil, Petzall & Shoemake, St. Louis, MO, for T & N.

Spencer J. Brown, Keith A. Cary, Deacy & Deacy, Kansas City, MO, Ed Cohen, Lawrence Friedman, Donald J. Stohr, Thompson & Mitchell, St. Louis, MO, for U.S. Gypsum Co.

David B. Larson, Watson Ess Marshall & Enggbar, Kansas City, MO, Andrew B. Leonard, Buechner McCarthy Leonard Kaummerer Owen & Laderman, Chesterfield, MO, for Raymark Industries, Inc.

Lisa Salazar, Hoyle Morris & Kerr, Philadelphia, PA, Thomas A. Ryan, Thomas J. Wheatley, Lathrop Koontz & Norquist, Kansas City, MO, for Nat. Gypsum Corp.

James J. Virtel, Richard A. Oertli, John F. Cowling, Armstrong Teasdale Schlafly Davis & Dicus, St. Louis, MO, for Celotex Corp. Charles E. Gray, Paul C. Hetterman, Joan M. Tanner, Gray & Ritter, St. Louis, MO, Kirk T. Hatley, Patrick Lamb, Katten, Muchin & Zavis, Chicago, IL, for GAF Corp.

John H. Marshall, Burns Marshall Burns & Hobbs, St. Louis, MO, for U.S. Mineral Products Co.

John J. Mohan, Jeffrey R. Glass, Hinshaw Culbertson Moelmann Hoban & Fuller, St. Louis, MO, for The Cleveland Builders Supply Co.

Charles D. Sindel, Sindel & Sindel, Clayton, MO, C. Brooks Wood, Daniel P. Wheeler, Kristine Kraft, Hillix, Brewer, Hoffhaus, Whittaker & Wright, Kansas City, MO, for Keene Corp.


LIMBAUGH, District Judge.

This matter is before the Court on the defendants' joint motion for summary judgment (on all remaining counts) regarding statutes of limitations1, filed December 11, 1992. Plaintiffs filed a responsive pleading on January 7, 1993.

Defendants assert that plaintiffs' claims for strict liability, negligence, implied warranty, express warranty, fraud, and civil conspiracy are all time-barred under the applicable Missouri statutes of limitations. Plaintiffs2 counter-argument is two-fold: 1) that the Archdiocese's membership in a class action suit filed in 1983 tolled all applicable statutes of limitation; and 2) even if the class action suit did not toll the running of the applicable statutes of limitation, numerous issues of material fact regarding the accrual of the claims precludes the granting of summary judgment based upon the expiration of the applicable time-periods to file suit.

Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established his right to judgment with such clarity as not to give rise to controversy. New England Mut. Life Ins. Co. v. Null, 554 F.2d 896, 901 (8th Cir. 1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir.1988).

Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 488, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of setting forth specific facts showing that there is sufficient evidence in its favor to allow a jury to return a verdict for it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chem. Interchange Co., 541 F.2d 207, 210 (8th Cir. 1976).

Where a motion for summary judgment raises the issue of statute of limitations and involves the determination of when a cause of action accrued, "summary judgment cannot be granted unless the evidence is so clear that there is no genuine factual issue and the determinations can be made as a matter of law." Hildebrandt v. Allied Corp., 839 F.2d 396, 399 (8th Cir. 1987), citing Lundy v. Union Carbide Corp., 695 F.2d 394, 398 (9th Cir.1982).

The plaintiffs argue that before the Court can consider defendants' points as to the various statutes of limitations, the issue of the tolling of the applicable limitation periods by virtue of the plaintiffs' membership in a class action suit must first be examined. The Court agrees.

There is no dispute that on January 17, 1983 a class action suit was brought by four school districts on behalf of all public school districts and private schools in the United States to recover the costs incurred in undertaking asbestos abatement projects. The defendants in this class action suit were, during the relevant time-period, the primary producers and suppliers of raw asbestos and friable asbestos construction and insulation products marketed to public and private schools in the nation. The case is commonly referred to as In re Asbestos School Litigation, 104 F.R.D. 422 (E.D.Pa. 1984), modified, 107 F.R.D. 215 (E.D.Pa. 1985), aff'd in part and vacated in part, 789 F.2d 996 (3rd Cir.), cert. denied, 479 U.S. 852, 915, 107 S.Ct. 182, 318, 93 L.Ed.2d 117, 291 (1986). There is also no dispute that plaintiffs were members of the plaintiff class and properly opted out of this class action suit on February 28, 1988 and immediately filed the present cause of action.

Defendants contend that membership in the Asbestos School Litigation class action suit did not toll the running of the applicable Missouri statutes of limitations. Defendants argue that the Supreme Court cases (cited by the plaintiffs) addressing the issue of the effect of class membership on the running of a statute of limitations are inapplicable because they only address federal statutes of limitations. Defendants cite other Supreme Court cases which they contend stand for the proposition that regardless of class membership, the federal courts must apply the applicable state statute of limitations and tolling rules. Chardon v. Fumero Soto, 462 U.S. 650, 103 S.Ct. 2611, 77 L.Ed.2d 74 (1983); Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). Finally, the defendants contend that Missouri's saving statute, § 516.230 R.S.Mo. (1986), fails to toll the statutes of limitations.

After a thorough reading of the relevant caselaw, this Court finds that plaintiffs' membership in the Asbestos School Litigation class action suit did toll the running of the applicable statutes of limitations until such time that plaintiffs opted out of the class. Since defendants' motion and memorandum in support focuses upon the time period of March 1979-January 1983, the Court assumes that defendants believe March 1979 to be the earliest point at which plaintiff's claims accrued.3 Consequently, plaintiffs' action was timely filed if their claims accrued on or after January 16, 1978.4

In a trilogy of cases, the United States Supreme Court has clearly embraced the principle that the filing of a class action tolls the applicable statute of limitations for all class members, whether or not the class member ultimately opts out of the class. Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 352-53, 103 S.Ct. 2392, 2396-97, 76 L.Ed.2d 628 (1983); Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 n. 13, 94 S.Ct. 2140, 2152, n. 13, 40 L.Ed.2d 732 (1974); American Pipe & Construction Co. v. Utah, 414 U.S. 538, 94 S.Ct. 756, 38 L.Ed.2d 713 (1974). Not one of these cases limited its holding to federal statutes of limitations. Even assuming arguendo, that the holdings in these cases were limited to federal statutes of limitations, Missouri has adopted the principle set down in these cases. In Hyatt Corp. v. Occidental Fire & Casualty Co., 801 S.W.2d 382 (Mo.App. 1990) (the infamous Hyatt Regency skywalks collapse of July 17, 1981), the Missouri Court of Appeals held that the filing of a class action complaint (referred to as the Jacobs complaint) on behalf of all rescuers (except policemen and firemen) tolled the applicable Missouri statute of limitations for all putative rescuers, including those who subsequently filed their own actions or settled their claims during the pendency of the Jacob class action. Id., at 389. Not only did the Missouri Court of Appeals...

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