Harris v. AC & S., INC.

• Decision Date: 10 January 2002
• Docket Number: No. 45A03-0004-CV-144.,45A03-0004-CV-144.
• Citation: 766 N.E.2d 383
• Parties: Willie L. HARRIS, Jr., et al., Appellants-Plaintiffs, v. A.C. & S., INC., North American Refractories Co., Mallinckrodt Group, Inc., Combustion Engineering Co., Kaiser Aluminum & Chemical Corp., WTI Rust Holdings, Inc., Rapid-American Corp., Weil-McLain Co., W.R. Grace & Co-Conn, Appellees-Defendants.
• Court: Indiana Appellate Court

766 N.E.2d 383

Willie L. HARRIS, Jr., et al., Appellants-Plaintiffs, v. A.C. & S., INC., North American Refractories Co., Mallinckrodt Group, Inc., Combustion Engineering Co., Kaiser Aluminum & Chemical Corp., WTI Rust Holdings, Inc., Rapid-American Corp., Weil-McLain Co., W.R. Grace & Co-Conn, Appellees-Defendants.

No. 45A03-0004-CV-144.

Court of Appeals of Indiana.

January 10, 2002.

Donald J. Berger, Berger James & Gammage, South Bend, IN, Robert G. McCoy, Mark R. Penney, Pablo A. Eves, Cascino Vaughan Law Offices, Ltd., Chicago, IL, Attorneys for Appellant.

W. Russell Sipes, Laudig George Rutherford & Sipes, Indianapolis, IN, Attorney for Amicus Curiae.

Susan E. Mehringer, Lisa M. Dillman, Lewis & Wagner, Indianapolis, IN, David W. Pera, Buoscio, Pera & Kramer, Merrillville, IN, Robert L. Shuftan, Kenneth M. Gorenberg, Carol L. Tate, Wildman, Harrold, Allen & Dixon, Chicago, IL, James M. Boyers, Indianapolis, IN, Amber Achilles, Chicago, IN, Attorneys for A.C. & S. and North American Refractories.

Christopher D. Lee, Todd C. Barsumian, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, Atorneys for Mallinckrodt Group, Inc. and Combustion Engineering Company.

Robert E. Haley, Wildman Harrold, Allen & Dixon, Chicago, IL, Attorney for Kaiser Aluminum & Chemical Corp.

Garrett V. Conover, Kopka, Landau & Pinkus, Crown Point, IN, Attorney for WTI Rust Holdings.

Douglas B. King, Wooden McLaughlin & Sterner, Indianapolis, IN, Attorney for Rapid-American Corp.

Jonathan M. Lively, Jason L. Kennedy, Segal McCambridge Singer, & Mahoney, Ltd., Chicago, IL, Attorneys for Weil-McClain.

Mark J. Dinsmore, Indianapolis, IN, Attorney for W.R. Grace & Co-Conn.

Raymond H. Modesitt, Ryan D. Johanningsmeier, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Terre Haute, IN, Attorneys for Prox Company, Inc.

OPINION

DARDEN, Judge.

STATEMENT OF THE CASE

In this consolidated appeal, Willie J. Harris Jr. ("Harris"), Esther Serna, individually and as Special Administrator of the Estate of Louis Serna ("the Sernas"), Freda Noppert, individually and as Special Administrator of the Estate of Robert Noppert ("the Nopperts"), and Caroline Gottschalk, individually and as Special Administrator to the Estate of John Gottschalk ("the Gottschalks)" appeal four trial court judgments granting summary judgment concerning the statute of repose in favor of the following corporations: A.C. & S., Inc. ("A.C. & S."), North American Refractories Company ("NARCO"), Mallinckrodt Group, Inc. ("Mallinckrodt"), Combustion Engineering Co. ("Combustion"), Kaiser Aluminum & Chemical Corp. ("Kaiser"), WTI Rust Holdings, Inc. ("WTI"), Rapid-American Corp. ("Rapid-American"), Weil-McLain Co. ("Weil-McLain"), and W.R. Grace & Co Conn. ("W.R. Grace").¹

We reverse and remand.

ISSUES

1. Whether the Nopperts are collaterally estopped from relitigating the statute of repose issue against the remaining defendants after this court upheld the trial court's entry of summary judgment in favor of Sears Roebuck & Co. ("Sears") against the Nopperts.

2. Whether the statute of repose bars the plaintiffs' claims.

FACTS

A.C. & S. is a Delaware corporation "primarily engaged in the installation of thermal insulation materials." (Harris R. 184). NARCO is an Ohio corporation in the "business of manufacturing, distributing and selling refractory products...." (Harris R. 47). Mallinckrodt is a Delaware corporation that has manufactured and shipped products "that may have contained asbestos...." (Mallinckrodt Supp. R. 73). Combustion is a Delaware corporation engaged in the business of manufacturing and shipping refractory products. Kaiser is a Delaware corporation also engaged in the refractory business. WTI is a Delaware corporation, and Rapid American and Weil-McLain are corporations doing business in Indiana. W.R. Grace is a Connecticut corporation.

Harris Facts:

Harris worked as a laborer, oven patcher, and group leader at Inland Steel in East Chicago from 1960 until his retirement in 1993. His work involved maintaining coke ovens by sealing openings, repairing the ovens' brick lining, and spraying "the joints between the door jambs and oven brick work with [a] cement spray gun...." (Harris R. 104).

On June 15, 1996, Dr. Henry Anderson diagnosed Harris as having asbestosis.² On September 16, 1996, Harris filed his complaint in Lake County Superior Court against numerous defendants, including A.C. & S. and NARCO. Among his claims of conspiracy, strict liability, and negligence, Harris also alleged that his asbestosis was proximately caused by his exposure to harmful asbestos fibers and/or asbestosis-containing products knowingly designed, processed, manufactured, sold or distributed by A.C. & S. and NARCO.

On December 24, 1998, the trial court ordered the parties to file proposed deadlines and trial dates. On September 30, 1999, NARCO filed its motion for summary judgment based on the statute of repose. A.C. & S. did likewise on October 5, 1999. Both defendants argued that Harris' complaint is time barred because it was filed outside the ten (10) year statute of repose period. Further, they argued that because neither defendant both mined and sold commercial asbestos, Harris' complaint could not be brought under the two-year exception period for asbestos. Finally, A.C. & S. and NARCO asserted that Harris failed to present any evidence that he was exposed to an asbestos-containing product specifically supplied by either defendant.

On November 4, 1999, Harris filed his designated evidence and responses to A.C. & S. and NARCO's motions for summary judgment. Harris argued that there was a genuine issue of material fact concerning whether he was exposed to asbestos-containing products supplied by the defendants. On November 19, 1999, A.C. & S. withdrew its motion for summary judgment based on product exposure.

On December 6, 1999, the trial court held a hearing and took the defendants' motions for summary judgment under advisement. On December 17, 1999, the trial court granted A.C. & S. and NARCO's motions for summary judgment because Harris' complaint was filed "more than ten years after the delivery of any product which could have contained asbestos," and because neither A.C. & S. nor NARCO mined and sold asbestos. (Harris R. 658).

Serna Facts:

Louis Serna worked as a laborer, mason, and custodian for Inland Steel from 1942 to 1985. "As a laborer, Mr. Serna shoveled and swept debris from the flues in the Open Hearth and passed bricks by hand and wheelbarrow to bricklayers who worked on the roof and other parts of the Open Hearth." (Serna R. 30). As a mason, he repaired and maintained furnaces and ovens used to make steel.

On March 18, 1998, Dr. Mark K. Ferguson diagnosed Mr. Serna as having malignant mesothelioma.³ The Sernas were notified of the diagnosis in April 1998. On December 12, 1998, the Sernas filed their complaint in Lake County Superior Court against numerous defendants, including Mallinckrodt, Combustion, Kaiser, NARCO, and WTI. Among their claims of conspiracy, strict liability, and negligence, the Sernas alleged that Mr. Serna's condition was proximately caused by unreasonably dangerous asbestos fibers manufactured, supplied or installed by the defendants.

On different dates throughout 1999, Combustion, Kaiser, Mallinckrodt, and WTI all filed motions for summary judgment based on product identification and the statute of repose. Mr. Serna subsequently died on November 21, 1999. On December 13, 1999, the Sernas filed their consolidated response to the defendants' motions for summary judgment, and the trial court held a hearing on January 18, 2000.

On March 10, 2000, the trial court denied the defendants' motions for summary judgment based on product identification. However, the trial court granted the defendants' motions for summary judgment because Serna's complaint was not filed within the ten-year repose period and there was no evidence that the defendants mined and sold asbestos. The Sernas appeal.

Noppert Facts:

From 1959 until 1980, Robert Noppert worked as a plumber and pipe-fitter for various employers and was exposed to asbestos during this period. During his work, Mr. Noppert recalled seeing asbestos in the air, knocking it off pipes, mixing asbestos mud, and being around insulators using asbestos.

In February 1991, Dr. Alvin J. Schonfield diagnosed Mr. Noppert as having asbestosis. On April 25, 1995, the Nopperts filed their complaint in the Vigo County Superior Court against numerous defendants, including Sears, A.C. & S., Rapid-American, and Weil-McLain. Among their claims of negligence, strict liability, and loss of consortium, the Nopperts argued that Mr. Noppert's asbestosis was proximately caused by his exposure to the asbestos-containing products sold by the defendants. Subsequently, on January 13, 1996, Dr. Michael G. Lykens diagnosed Mr. Noppert with malignant mesothelioma; Mr. Noppert died on May 12, 1997.

On May 29, 1997, A.C. & S. filed its motion for summary judgment and the trial court set the matter for hearing on July 31, 1997. The trial court heard arguments and took the matter under advisement.

On September 11, 1997, Sears filed its motion for summary judgment arguing that the statute of limitation then codified at Ind.Code § 33-1-1.5-5 barred the Nopperts' claim.⁴ The trial court granted Sears' motion on October 3, 1997. The Nopperts filed a motion to correct errors on December 16, 1997, and, two days later, the trial court granted the Nopperts' motion to correct errors and vacated its order granting Sears' motion for summary judgment. Sears appealed to this court arguing that the Nopperts' "motion to correct errors was erroneously granted because the motion was untimely filed and because the Nopperts did not have a meritorious defense to the summary judgment motion." Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1067 (Ind.Ct.App.1999), trans. denied.

On February 17, 1999, this court rendered an...