Knox v. AC & S, INC.
| Decision Date | 08 July 1988 |
| Docket Number | No. IP 85-911-C.,IP 85-911-C. |
| Citation | 690 F. Supp. 752 |
| Court | U.S. District Court — Southern District of Indiana |
| Parties | Mona J. KNOX, Administratrix of the Estate of Darrel G. Knox, Plaintiff, v. AC & S, INC., et al., Defendants. |
Stephen Laudig, Community Defenders, San Diego, Cal., Timothy E. Eble, Thomas H. Hart, Ness Motley Loadholt Richardson & Poole, Barnwell, S.C., for plaintiff.
Raymond H. Modesitt, Patrick Gabbert Wilksinson Goeller & Modesitt, Terre Haute, Ind., for defendant Raymark.
Maxwell Gray, Lowe Gray Steele & Hoffman, Indianapolis, Ind., for defendant Combustion Engineering.
Robert J. Shula, Bingham Summers Welsh & Spilman, Indianapolis, Ind., for defendant Eagle Picher.
Michael A. Bergin, Julia M. Blackwell, Locke Reynolds Boyd & Weisell, Indianapolis, Ind., for defendants AC & S, Armstrong World Industries, Inc., Carey-Canada, Celotex, Fibreboard, Flintkote, GAF, HK Porter, Keene, Owens-Corning, Owens-Illinois, Pittsburgh Corning, Rockwool, T & N.
Martin J. Murphy, Davis and Young Co., L.P.A., Cleveland, Ohio, for defendant Eagle Picher.
Charles T. Jennings, Robert D. Maas, Jennings, Maas & Strickney, Indianapolis, Ind., for defendant Empire Ace.
This cause comes before the court upon defendants' Motion for Summary Judgment. The court having reviewed the memoranda submitted by the parties and the evidence referred to therein, now GRANTS in part and DENIES in part defendants' Motion for Summary Judgment.
This is a wrongful death case arising from the death of Darrel G. Knox on or about April 18, 1986, from mesothelioma, a cancer commonly linked to asbestos exposure. This case was originally filed on June 18, 1985, by Darrel G. Knox and Mona J. Knox for personal injuries resulting from Mr. Knox's exposure to defendants' asbestos-containing thermal insulation products, during the course of his employment as an insulation mechanic. On January 7, 1987, the court granted Mrs. Knox leave to amend her Complaint to allege a cause of action for wrongful death and her Amended Complaint was filed January 8, 1987. Plaintiff's claim for wrongful death sounds in strict products liability and negligence.
The Motion for Summary Judgment, and the plaintiff's briefs in opposition to summary judgment raise two issues to be considered by the court.
Summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, is properly granted only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed. 2d 265 (1986). The moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. Id. at 323, 106 S.Ct. at 2553. The non-moving party must then "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "At the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249, 106 S.Ct. 2511. Summary judgment must be entered against the nonmoving party if, after adequate time for discovery, the party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2553. "In such a situation, there can be `no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of non-moving party's case necessarily renders all other facts immaterial." Id. at 323, 106 S.Ct. at 2553.
In 1986, CERCLA was amended by the Superfund Amendments and Reauthorization Act of 1986 (SARA). In those amendments, a section was added to CERCLA which plaintiff maintains establishes a discovery statute of limitations for toxic tort actions brought in State Court. The section provides in relevant part:
42 U.S.C. § 9658 (emphasis added).
Plaintiff's argument is that § 9658 mandates that a toxic tort case, including an asbestos case, brought in State Court is governed by the federally-required commencement date, the date the plaintiff knew or reasonably should have known that the personal injury or property damage at issue was caused or contributed to by exposure to a hazardous substance. In other words, according to the plaintiff, § 9658 is essentially a federal adoption of a discovery statute of limitations for all toxic tort actions, which functions to preempt any inconsistent state statute, including the Indiana Products Liability Statute of Limitation at issue herein. Ind.Code § 33-1-1.5-5.
In determining whether § 9658 requires a discovery statute of limitations and thus preempts state law, the language of the act must be carefully scrutinized to determine if it extends to this case. The three factors of importance in making that determination are whether the action brought under state law for personal injury or property damage was:
Asbestos has been specifically designated as a hazardous substance pursuant to 42 U.S.C. § 9602. (See 40 CFR § 302.4 designating hazardous substances, reportable quantities and notification requirements). Therefore, the plaintiff can satisfy the first prong of § 9658, that decedent's personal injury was caused or contributed to by exposure to a hazardous substance as that term is defined in CERCLA, namely asbestos. In addition, the plaintiff can satisfy the requirement that the exposure to the hazardous substance, asbestos, occur at a facility. The term facility is defined in CERCLA as follows:
(9) The term "facility means (A) any building, structure, installation, equipment, pipe or pipeline (including any pipe into a sewer or publicly owned treatment works), well, pit, pond, lagoon, impoundment, ditch, landfill, storage container, motor vehicle, rolling stock, or aircraft, or (B) any site or area where a hazardous substance has been deposited, stored, disposed of, or placed, or otherwise come to be located: but does not include any consumer product in consumer use or any vessel.
42 U.S.C. § 9601(9) (emphasis added).
The cases which construe the CERCLA definition of facility have recognized that it is an expansive definition which extends to include many areas not typically considered a facility. State v. General Electric Co., 592 F.Supp. 291, 295 (N.D. NY 1984) (citation omitted).
The court in U.S. v. Bliss, 667 F.Supp. 1298 (E.D.Mo.1987) further elaborated on the expansive nature of the definition given to the term facility.
Simply put, the term "facility" includes any place where hazardous substances come to be located. Thus, to show that an area is a "facility," the plaintiff need only show that a hazardous substance has been placed there or has "otherwise come to be located" there.
Given the broad nature of the CERCLA definition of facility, Mr. Knox's work site could easily be characterized as a facility, a place where...
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...arguments regarding the possible application of CERCLA statute of limitations provisions (42 U.S.C. § 9658). Knox v. AC & S, Inc., 690 F.Supp. 752, 757 (S.D.Ind.1988) ("The discovery statute of limitations added to CERCLA in the SARA amendments is limited to personal injury or property dama......
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