Black v. ACandS, Inc.
| Decision Date | 20 July 2001 |
| Docket Number | No. 45A04-9912-CV-565.,45A04-9912-CV-565. |
| Citation | 752 N.E.2d 148 |
| Parties | Lois BLACK, Administratrix of the Estate of Willie Black, deceased, and widow in her own right, Appellant-Plaintiff, v. ACANDS, INC., A & M Insulation Company, Brand Insulations, Inc., Combustion Engineering, Inc., General Refractories, North American Refractories, Rapid-American Corp., and Universal Refractories, Appellees-Defendants. |
| Court | Indiana Appellate Court |
Mark K. Dudley, Young, Riley & Dudley, Indianapolis, IN, Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, PA, Attorneys for Appellant.
Raymond L. Faust, Norris, Choplin & Schroeder, LLP, Indianapolis, IN, Attorney for Brand Insulations, Inc.
Douglas B. King, James M. Boyers, Wooden & McLaughlin LLP, Indianapolis, IN, Attorneys for Rapid-American Corporation.
Susan E. Mehringer, Lisa M. Dillman, Lewis & Wagner, Indianapolis, IN, Attorneys for ACandS, Inc.
Christopher D. Lee, Lee F. Baker, Kahn, Dees, Donovan & Kahn, LLP, Evansville, IN, Attorneys for Combustion Engineering, Inc.
Gus Sacopulos, Sacopulos Johnson Carter & Sacopulos, Terre Haute, IN, Attorney for Universal Refractories.
Randall J. Nye, Beckman, Kelly & Smith, Hammond, IN, Attorney for General Refractories Company.
W. Russell Sipes, Laudig George Rutherford & Sipes, Indianapolis, IN, Attorney for Amicus Curiae Indiana Trial Lawyers Association.
Jon L. Williams, Indianapolis, IN, Janet Golup, Goldfein & Hosmer, Philadelphia, PA, Attorneys for Amici Curiae Asbestos Corporation Limited and Bell Asbestos Mines, Ltd.
Lois Black, as administratrix of the Estate of Willie Black and as a widow in her own right, ("Black") appeals the Lake County Superior Court's grant of summary judgment for multiple defendants in her action for loss of consortium and the wrongful death of her husband, Willie.1
Black raises three issues on appeal, which we consolidate and restate as:
I. Whether Ind.Code § 34-20-3-2, which permits asbestos-related causes of action to be filed within two years of the date they accrue without regard to the ten-year products liability statute of repose contained in Ind.Code § 34-20-3-1, applies to Black's claims against the defendants herein;2 and
II. Whether the trial court properly granted summary judgment for four of the defendants based on lack of product identification evidence.
We affirm in part, reverse in part, and remand.
Willie Black was employed as a blast furnace worker at the Gary Works plant of USX Steel from 1956 to 1983. In the course and scope of such employment, he inhaled dust emitted from asbestos products. As a result of his exposure to asbestos dust, Black developed lung cancer, which caused his death on August 1, 1996.
On July 6, 1998, Black filed an action for wrongful death and loss of consortium against ACandS, Inc., A & M Insulation Company, A.P. Green Services, Inc., Brand Insulations, Inc., Combustion Engineering, Inc., General Refractories, North American Refractories, Rapid-American Refractories, Universal Refractories, Owens Corning Fiberglass, and William A. Pope Company. Each of these defendants subsequently filed a motion for summary judgment. The trial court heard oral argument on the motions on October 13, 1999. On December 3, 1999, the trial court granted the summary judgment motions of A & M Insulation Company and William A. Pope Company. Black did not oppose either of these motions at the hearing; nor does she present any issue on appeal with respect to the grant of these motions. The trial court also granted the motions of A.P. Green Services, General Refractories, Combustion Engineering, Inc., North American Refractories, and Owens Corning Fiberglass, on the ground that Black's claims were filed outside of the ten-year products liability statute of repose codified at Ind.Code § 34-20-3-1. The court granted the summary judgment motions of ACandS, Inc., Rapid-American Refractories, Universal Refractories, and Brand Insulations, Inc., based on Black's failure to present adequate evidence that Willie was exposed to their asbestos-containing products. Black appeals.
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Once the movant has met this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind.1992). At the time of filing the motion or response, a party shall designate to the court all parts of pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).
When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the non-moving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind.Ct. App.1994). We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).
The instant causes of action for wrongful death and loss of consortium were filed within two years of Willie Black's death. However, his death occurred more than ten years after the defendants' last delivery of asbestos-containing products to the sites where Willie Black was exposed to them. In granting summary judgment in favor of the defendants, the trial court found that Black's claims were barred by the ten-year product liability statute of repose codified at Ind.Code § 34-20-3-1, because the defendants were not miners of commercial asbestos.
Ind.Code § 34-20-3-2(d) (emphasis supplied).
The defendants contend this exception applies only to persons who satisfy both criteria—persons who both mined and sold—commercial asbestos. Black argues this section's exception to the statute of repose should be interpreted to allow suits against either persons who mined commercial asbestos or persons who sold commercial asbestos.
We find that the construction urged by the defendants is inconsistent with other provisions of the product liability act and with our supreme court's precedent and would lead to an absurd result. Thus, we hold the exception applies to persons who mine commercial asbestos and to persons who sell, but do not mine, commercial asbestos. Therefore, summary judgment for the defendants on the ground that none of the defendants mined commercial asbestos was improper.
We note at the outset that in at least three prior decisions, panels of this court have indicated in dicta that the language of this statutory exception is unambiguous, see Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1068 (Ind.Ct.App.1999), and that the exception applies only to entities that both mine and sell commercial asbestos. Id.; Novicki v. Rapid-American Corp., 707 N.E.2d 322, 324 (Ind.Ct.App. 1999).3 See also Holmes v. ACandS, Inc., 711 N.E.2d 1289 (Ind.Ct.App.1999) () In the case currently before us, however, we are presented for the first time4 with cogent argument and legal authority identifying the ambiguity of this section and directly addressing the question of its meaning.
When considering a statute, this court is guided by well-established rules of statutory construction. Public Employees' Retirement Fund v. Shepherd, 733 N.E.2d 987, 989 (Ind.Ct.App.2000). When a statute is unambiguous, we need not look beyond its plain language to determine the meaning, and we do not resort to other rules of statutory construction. Id. Indeed, "we are not free to construe a statute which is unambiguous, and our ability to effect perceived legislative purposes is necessarily limited to the language of the statute." Office of Utility Consumer Counselor v. Public Serv. Co. of Indiana, Inc., 608 N.E.2d 1362, 1363-64 (Ind.1993). This is true even though a "statute as written may not, in the estimation of some, be good public policy." Rieddle v. Buckner, 629 N.E.2d 860, 865 (Ind.Ct.App.1994) (Sullivan, J., concurring); see also Boehm v. Town of St. John, 675 N.E.2d 318, 321 (Ind.1996).
In determining whether a statute is ambiguous, it is appropriate to look at the grammatical structure of language in ...
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