BellSouth Telecommunications, Inc. v. W.R. Grace & Companay-Conn., No. 107

CourtU.S. Court of Appeals — Second Circuit
Writing for the CourtJACOBS
Citation77 F.3d 603
Parties26 Envtl. L. Rep. 20,690 BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Appellant, v. W.R. GRACE & CO.--Conn., Defendant-Appellee. ocket 95-7132.
Decision Date21 February 1996
Docket NumberD,No. 107

Page 603

77 F.3d 603
26 Envtl. L. Rep. 20,690
BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Appellant,
v.
W.R. GRACE & CO.--Conn., Defendant-Appellee.
No. 107, Docket 95-7132.
United States Court of Appeals,
Second Circuit.
Argued Oct. 5, 1995.
Decided Feb. 21, 1996.

Philip Allen Lacovara, New York City (H. Thomas Byron III, Mayer, Brown & Platt, New York City; A. Camden Lewis, Mary G. Lewis, Lewis, Babcock & Hawkins, Columbia, SC; J. Anderson Berly, III, Ness, Motley, Loadholdt, Richardson & Poole, Charleston, SC; Fred A. Walters, BellSouth Telecommunications, Atlanta, GA, on the brief), for Plaintiff-Appellant BellSouth Telecommunications, Inc.

Robert P. Dolian, Stamford, CT (Lawrence A. Farese, Mark E. Fuhrmann, William H. Narwold, David B. Teitelman, Rosanne C. Baxter, Cummings & Lockwood, Stamford, CT, on the brief), for Defendant-Appellee W.R. Grace & Co., Conn.

Before: WINTER, JACOBS and LEVAL, Circuit Judges.

JACOBS, Circuit Judge:

This appeal requires us to determine when a claim for property damage caused by asbestos accrues under Connecticut law. An asbestos-containing fireproofing material manufactured by W.R. Grace & Co. under the trade name Monokote was installed in the headquarters building of BellSouth Telecommunications, Inc. ("BellSouth") when it was constructed in Birmingham, Alabama. On January 19, 1993, BellSouth, as the building's owner, brought this action in the United States District Court for the District of Connecticut (Daly, J.) under the Connecticut Product Liability Act, Conn.Gen.Stat.Ann. § 52-572M to -572N (West Supp.1995), seeking to recover from W.R. Grace the cost of BellSouth's building-wide asbestos abatement. The Act provides that all claims for product-related damage must be brought within three years from the date of discovery of injury. Id. § 52-577A(a). W.R. Grace does not contest the application of Connecticut law to this dispute. Accordingly, if the action accrued prior to January 19, 1990, it is time barred.

Around 1983, BellSouth learned that asbestos fireproofing in the headquarters building could pose health risks to its employees. From 1984 to 1992, BellSouth incurred costs in excess of $2 million in conjunction with remedial efforts designed to prevent or reduce asbestos contamination. These remedial efforts notwithstanding, an independent study determined in 1992 that the fireproofing had decayed such that asbestos dust and airborne asbestos fibers posed a substantial health hazard to BellSouth employees. Soon thereafter, BellSouth decided that it had become necessary to remove all Monokote fireproofing from the building, a project which it is currently undertaking at a cost that BellSouth's consultants estimate at approximately $85 million.

After extensive discovery, W.R. Grace moved for summary judgment on the ground that BellSouth's claim was barred by the three-year limitation period of the Connecticut Product Liability Act. On August 5, 1994, the district court referred Grace's motion to Magistrate Judge Thomas P. Smith for recommendation and for proposed findings of fact, pursuant to Federal Rule of Civil Procedure 72(b). Magistrate Judge Smith found that BellSouth had discovered actionable injury prior to January 19, 1990, and that its claims were therefore time-barred. On December 16, 1994, the district court endorsed and adopted Magistrate Judge Smith's unreported opinion, and granted Grace's motion for summary judgment of BellSouth's claims.

BellSouth appeals chiefly on the ground that it raised material issues of fact as to when the corporation became aware that abatement was a necessary or suitable strategy for dealing with the presence of the

Page 606

asbestos fireproofing, and that the magistrate judge erroneously resolved these fact issues in favor of movant W.R. Grace.

Following a thorough survey of Connecticut law and of the record in a light most favorable to BellSouth, see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970), we affirm the district court's decision.

BACKGROUND

BellSouth's headquarters building was constructed in Birmingham, Alabama in the period 1969-1971. In 1971, W.R. Grace's Monokote fireproofing material, which contains asbestos, was installed throughout the building. Asbestos is a flame-retardant and heat-resistant fibrous mineral that was commonly used in fireproofing in buildings, ships, and protective fireproof garments at least as early as the nineteenth century. 1 Asbestos containing material ("ACM") such as Monokote poses a health threat if and when it becomes "friable," an adjective describing a state of decay in which asbestos fibers or dust are released from ACM when disturbed. Friable asbestos poses a health risk because airborne fibers can become lodged in the lungs and respiratory tract, and over time may lead to asbestosis, mesothelioma and lung cancer. The health risks posed by friable fireproofing can be addressed either by abatement, which entails the complete removal of all ACM, or by special operations and maintenance practices (occasionally referred to as "O & M"), which prevent disturbance of the ACM that may otherwise result in asbestos fibers being released into the air. 2 The health threat that asbestos poses varies with the degree of exposure to airborne fibers; consequently, asbestos-containing fireproofing may be safely maintained indefinitely if the resulting airborne concentration of asbestos fibers remains low.

In 1982, BellSouth learned that some of its buildings contained asbestos fireproofing, that asbestos fibers could be released into the air during renovations or maintenance activities, and that the dangerous condition thereby created could violate federal law. In 1984, BellSouth formed an Occupational Health Committee to develop a "standard policy relating to asbestos exposure." On September 13, 1984, the committee circulated a 43-page asbestos manual that reviewed various asbestos related illnesses, methods for minimizing employee exposure to asbestos fibers, and legal remedies for owners of buildings containing asbestos. On October 30, 1984, BellSouth issued a memorandum instructing all building managers to conduct asbestos surveys, to remove badly deteriorated ACM that posed serious health risks to employees, and to maintain all non-decayed ACM in place.

In April 1985, BellSouth hired Marsh & McLennon Protection Consultants to survey the headquarters building for friable asbestos. Marsh & McLennon detected elevated levels of airborne asbestos in isolated areas of the building, and informed BellSouth that suspended asbestos particles in those areas could pose a health threat to BellSouth employees. In response to that report, BellSouth formed an informal committee consisting of senior managers from corporate departments responsible for real estate, legal affairs, labor relations, public relations, and employee health and safety, in order to "coordinate actions to be taken in response to the discovery of asbestos material." On July 1, 1985, the committee hired Law Engineering, a scientific consulting firm, to measure airborne asbestos levels and to recommend a remedial course of action. On

Page 607

September 25, 1985, Law Engineering reported that it had detected "elevated, localized airborne asbestos fiber levels" in certain areas of the building that may have resulted from "disturbance of friable asbestos-containing materials." Law Engineering's report offered

two options available to eliminate or control [the localized] contamination: 1) Removal of the asbestos-containing material, or 2) Establishing a retention management and maintenance program with diligent monitoring.

If the asbestos-containing material is badly deteriorated and there is evidence of extensive and continuous airborne contamination then the prudent recourse would be to initiate a comprehensive removal project.

Acting upon these recommendations, BellSouth implemented an operations and maintenance program in September 1985. The program was outlined by way of a series of recommendations in a document entitled "Operations and Maintenance Manual":

Until the problem is solved through complete removal of asbestos-containing material IT IS RECOMMENDED that there be:

(1) Vigilant, periodic inspection and observation to confirm unchanged, safe conditions....

(2) Notification and training of custodial, maintenance, [and] construction [personnel], and occupants....

(3) Strict prohibition against removing ceiling tiles or other invasions of ceilings....

(4) Strict prohibition of maintenance procedures above ceilings, unless they are carried out under carefully controlled and contracted conditions by trained personnel with appropriate protection.

(5) Restrictions on alterations and remodeling to prevent the potential for risk to building users as well as to construction workers. There will be risk if asbestos-containing materials are disturbed without proper precautions to control fiber release, to avoid contamination of air handling equipment and ducts, and to clean contaminated areas and surface[s]....

The manual prescribes elaborate procedures for simple maintenance tasks, including a protocol for changing light bulbs and cleaning light fixtures. 3 In addition, the manual implements precautionary procedures for removing contaminated carpet, removing contaminated ceiling tiles, and installing wires in contaminated areas.

In early 1986, BellSouth retained the architectural firm of Bull & Kenney ("Bull") to perform another analysis of airborne asbestos levels and to recommend procedures to minimize any further contamination. On April 8, 1986, Bull reported that it found Monokote fireproofing on all but four of the thirty floors in the building, and estimated that asbestos-containing material was present in approximately 80% of the building's total enclosed floor area. Bull's report discussed three possible remedies: encapsulation, enclosure, or removal of...

To continue reading

Request your trial
493 practice notes
  • Anilao v. Spota, No. 10-CV-00032 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 28, 2018
    ...to assert a conclusion without supplying supporting arguments or facts.’ " BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn. , 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp. , 585 F.2d at 33 ). III. DISCUSSION The County defendants, the Sentosa defendants, an......
  • Roman v. Cornell University, No. 97-CV-0365.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 30, 1999
    ...shall be entered against the adverse party." FED.R.CIV.P. 56(e); BellSouth Telecommunications, Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d "Because direct evidence of ... discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutin......
  • Vassallo v. Lando, No. 06-CV-2520 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 31, 2008
    ..."merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted). "[W]hen no rational jury could find in favor of the nonmoving party because the evidenc......
  • Alexiadis v. N.Y. Coll. of Health Professions, No 10-cv-3509 (JFB) (ETB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 20, 2012
    ...to assert a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).Page 7 The Second Circuit has provided additional guidance regarding summary......
  • Request a trial to view additional results
493 cases
  • Anilao v. Spota, No. 10-CV-00032 (JFB) (AKT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • November 28, 2018
    ...to assert a conclusion without supplying supporting arguments or facts.’ " BellSouth Telecomms., Inc. v. W.R. Grace & Co.-Conn. , 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp. , 585 F.2d at 33 ). III. DISCUSSION The County defendants, the Sentosa defendants, an......
  • Roman v. Cornell University, No. 97-CV-0365.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
    • June 30, 1999
    ...shall be entered against the adverse party." FED.R.CIV.P. 56(e); BellSouth Telecommunications, Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603, 615 (2d "Because direct evidence of ... discriminatory intent will rarely be found, `affidavits and depositions must be carefully scrutin......
  • Vassallo v. Lando, No. 06-CV-2520 (JFB)(ETB).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • October 31, 2008
    ..."merely to assert a conclusion without supplying supporting arguments or facts." BellSouth Telecomms. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir.1996) (internal quotations omitted). "[W]hen no rational jury could find in favor of the nonmoving party because the evidenc......
  • Alexiadis v. N.Y. Coll. of Health Professions, No 10-cv-3509 (JFB) (ETB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 20, 2012
    ...to assert a conclusion without supplying supporting arguments or facts.'" BellSouth Telecomms., Inc. v. W.R. Grace & Co., 77 F.3d 603, 615 (2d Cir. 1996) (quoting Research Automation Corp., 585 F.2d at 33).Page 7 The Second Circuit has provided additional guidance regarding summary......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT