Bazdar v. Koppers Co., Inc.

• Decision Date: 28 October 1981
• Docket Number: Civ. Cr. No. C80-1704.
• Citation: 524 F. Supp. 1194
• Parties: Ronald G. BAZDAR, Plaintiff, v. KOPPERS COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

524 F. Supp. 1194

Ronald G. BAZDAR, Plaintiff, v. KOPPERS COMPANY, INC., Defendant.

Civ. Cr. No. C80-1704.

United States District Court, N. D. Ohio, E. D.

October 28, 1981.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Ronald K. Riley, Madra Marks, Cleveland, Ohio, for plaintiff.

Patrick R. Riley, Egler & Reinstadtler, Pittsburgh, Pa., James L. Malone, Reminger & Reminger, Cleveland, Ohio, for defendant.

ORDER

CONTIE, District Judge.

Pending before the Court in the above captioned case is a motion of defendant Koppers Company, Inc. (Koppers) for summary judgment on the basis that this action is barred by the running of the statute of limitations.¹

This action was initiated by plaintiff Ronald G. Bazdar on behalf of the estate of George S. Bazdar (survival action) and on his own behalf (wrongful death action) on September 12, 1980.

This Court possesses jurisdiction over this matter on the basis of diversity of citizenship. The plaintiff is a citizen of Ohio and the defendant corporation is incorporated and has its principal place of business in states other than Ohio. And, the amount in controversy exceeds $10,000.

Further, the Court recognizes that in a diversity case, the Federal Court is bound by state substantive law wherever applicable. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Upon review of the briefs of the parties, all agree that Ohio law is applicable to the statute of limitations issues presented herein.

This action is brought against the defendant who is a manufacturer, producer, installer, retailer, and/or merchant of coke processing ovens, machinery, equipment and/or chemicals used by the Republic Steel Corporation in Cleveland, Ohio during the time that the plaintiff's decedent was employed by the Republic Steel Corporation. The plaintiff alleges that during the performance of various duties at Republic Steel his decedent was exposed to fumes, dust and particles, including but not limited to asbestos, emitted during the coke processing from the machinery, equipment and/or chemicals manufactured and sold by the defendant. The plaintiff further alleges that the exposure and inhalation of the emitted fumes, dust and particles proximately caused his decedent to develop various lung and/or respiratory diseases. The plaintiff has sued the defendant on the various legal theories of negligence, strict products liability (402A of the Restatement of Torts, 2d), implied and express warranty, the Ohio wrongful death statute and the Occupational Safety and Health Act (OSHA), 29 U.S.C. section 654.

The precise issue presented to the Court by defendant's motion for summary judgment is whether or not Ohio's applicable statutes of limitation bars the plaintiff's actions for bodily injuries, under all or any of his legal theories. The statute of limitations for bodily injury actions provides in pertinent part:

An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.

Ohio Rev.Code, Section 2305.10. The statute of limitations for wrongful death actions provides in pertinent part:

Except as otherwise provided by law, every such wrongful death action must be commenced within two years after the death of such deceased person.

Ohio Rev.Code, Section 2125.02.

I. Scope of applicability of sections 2305.10 and 2125.02 of Ohio's Revised Code

Ohio Revised Code, section 2305.10 obviously applies to an action brought under the theory of negligence for bodily injury. This statute of limitations also applies to actions brought under the theory's strict products liability and breach of express or implied warranties for bodily injury where the action is based on tortious breach of duty. Lonzrick v. Republic Steel Corp., 6 Ohio St.2d 227, 218 N.E.2d 185 (1967); United States Fidelity & Guaranty Co. v. Truck and Concrete Equipment Co., 21 Ohio St.2d 244, 257 N.E.2d 380 (1970); Lee v. Wright Tool & Forge Co., 48 Ohio App.2d 148, 356 N.E.2d 303 (9th Dist.1975). Absent an allegation of privity of contract, the four year statute of limitations of Ohio Revised Code, Section 1302.98 (Uniform Commercial Code) is not applicable to an action seeking recovery on an implied or express warranty theory. Lee v. Wright Tool & Forge Co., 48 Ohio App.2d 148, 356 N.E.2d 303 (9th Dist. 1975). Thus, the plaintiff's survival action in tort is governed by Ohio Revised Code, Section 2305.10.

In regard to the application of Ohio Revised Code, Section 2125.02 to plaintiff's wrongful death action, the plaintiff alleges that a two year discovery statute of limitations would more equitably apply to a case such as the one pending before the Court. The plaintiff argues that the two year limitation period should run from the date of discovery of the causal relation between the death of plaintiff's decedent and the industrial exposure to the dangerous fumes, dust and particles. The plaintiff also argues that the application of the date of death statute of limitations rather than the discovery date would violate Ohio's Constitution Article I, Section 16 and the 14th Amendment of the United States Constitution. Application of any other statute of limitations other than the discovery period of limitation would deny plaintiff his property right of access to court in violation of the due course of law clause of Ohio's Constitution and the due process of law clause of the Federal Constitution.

First of all, the Court does not agree with plaintiff that the case Leiberg v. Vitangelli, 70 Ohio App. 479, 47 N.E.2d 235 (5th Dist. 1942) holds that a wrongful death action is a property right guaranteeing access to court under all conditions. That case held that a plaintiff, who was a resident enemy alien and citizen of Germany, who instituted a wrongful death action before the United States declared war against Germany, was not afterwards prohibited from prosecuting such civil action in a court within the United States. The Court further held that the word "person" in the equal protection clause of the Federal Constitution and Article I, Section 16 of the Ohio Constitution refers to anyone permitted to reside peaceably within the borders of the United States. The appeals court, therefore, held that the lower court's continuance of the wrongful death action until there was peace between the United States and Germany was an abuse of discretion and it ruled that the plaintiff was entitled to prosecute its action the same as any other "person" lawfully within the United States.

But, even assuming that a wrongful death action is a property right creating a right to access to the courts, such right is created by the legislature exercisable only under the conditions as stated within the statute. The right of access to courts is not a fundamental right exercisable absolutely.

An action for damages resulting from a wrongful death did not exist at common law. In granting the right to sue, the legislature has established a reasonable time limitation upon the exercise of the right. Further, the statute specifically states that wrongful death actions must be instituted within two years of the date of death except as otherwise provided. The legislature has not otherwise provided for an alternative period of limitation.

Admittedly the use of the date of death rather than the date of discovery will forestall a number of claims. But the use of such a starting point for the running of the statute is rationally related to the purpose of the legislation, to compensate the family of the decedent. To allow an action to be initiated whenever the cause of death is discovered would in essence be to place no time limit on the filing of claims. A wrongful death claim could be filed whenever new scientific evidence linked a particular disease with exposure to a particular chemical, even though the death had occurred years earlier. The statute would essentially provide no limitation on the action. The Court finds, therefore, that it was reasonable of the legislature, in providing a new cause of action, not to create indefinite liability for defendants.

Additionally, the Court notes that the Ohio constitutional provision guaranteeing that "every person, for an injury done him ... shall have a remedy by due course of law" refers to "wrongs that are recognized by law." Building Service & Maintenance Union v. St. Luke's Hospital, 11 Ohio Misc. 218, 227, 227 N.E.2d 265 (C.P. Cuyahoga Cty, 1967). Only a wrongful death action brought within two years of the date of death is a wrong recognized by law. The proviso that a wrongful death action be commenced within two years of the date of death is a restriction qualifying the right of action and is not just a time limitation upon the remedy. Sabol v. Pekoc, 148 Ohio St. 545, 76 N.E.2d 84 (1947); Pittsburgh C. & C. R. Co. v. Hine, 25 Ohio St. 629 (1874). In the instant case, the two-year limit in Ohio Revised Code, Section 2125.02 is part of the "due course of law" by which a person is entitled to a remedy. The Court finds, therefore, that the application of Ohio Revised Code, Section 2125.02 as the applicable statute of limitations in no way denies the plaintiff due course of law or due process of law under the Ohio or Federal Constitutions.

Finally, the Court finds that it need not determine what would be the applicable statute of limitations to plaintiff's claims under the Occupational Safety and Health Act (OSHA), 29 U.S.C. Sections 651 et seq. The Court finds, rather, that the plaintiff has failed to state a claim under the provisions of 29 U.S.C. section 651 et seq., upon which this Court can grant relief.

The plaintiff asserts that the defendant is an "employer" under the terms of OSHA and that the defendant has failed to comply with 29 U.S.C. section 654(a). That section provides:

(a) Each Employee—

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are

...