Braswell v. Flintkote Mines, Ltd.

• Decision Date: 16 January 1984
• Docket Number: Nos. 82-2699,82-2702,s. 82-2699
• Citation: 723 F.2d 527
• Parties: Orvil T. BRASWELL and Parlee K. Braswell, et al., Plaintiffs-Appellants, v. FLINTKOTE MINES, LTD., et al., Defendants-Appellees. to 82-2705, and 82-2727 to 82-2733.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 527

723 F.2d 527

Orvil T. BRASWELL and Parlee K. Braswell, et al Plaintiffs-Appellants, v. FLINTKOTE MINES, LTD., et al., Defendants-Appellees.

Nos. 82-2699, 82-2702 to 82-2705, and 82-2727 to 82-2733.

United States Court of Appeals Seventh Circuit.

Argued Sept. 23, 1983.

Decided Dec. 6, 1983.

Rehearing Denied Jan. 16, 1984.

Richard Andrew Young, Young & Young, Indianapolis, Ind., for plaintiffs-appellants.

Douglas B. King, Wooden, McLaughlin & Sterner, Richard R. McDowell, Hill, Fulwider & McDowell, Indianapolis, Ind., Jeffrey R. Frank, Evansville, Ind., for defendants-appellees.

Before CUMMINGS, Chief Judge, and SWYGERT and POSNER, Circuit Judges.

CUMMINGS, Chief Judge.

This consolidated appeal involves seven plaintiffs who were employed by the World Bestos Division of the Firestone Tire and Rubber Company at its plant in New Castle, Indiana. Plaintiffs and their spouses have filed claims for damages based upon exposure to asbestos manufactured or supplied by the defendants. Each of the plaintiff-employees seeks damages for asbestosis, and their spouses claim lack of consortium. The workers were employed at jobs which exposed them to asbestos fiber in varying degrees and amounts over varying lengths of time. The first plaintiff to be exposed (Obert F. Moore) was initially exposed to the asbestos fibers in 1943, and no plaintiff was initially exposed later than 1964.

The first of the seven diversity actions was commenced by Orvil T. Braswell on November 30, 1979, against the several defendants which allegedly furnished or manufactured asbestos for the World Bestos plant. Braswell was employed at the plant from 1950 until 1975, at which time his exposure to asbestos ceased. He apparently first noticed symptoms of his condition in 1972 and was informed by his physician in late 1979 that he had an asbestos-related disease.

The other six actions were commenced by plaintiffs between January and July of 1981. Exposure to asbestos manufactured by at least one of the defendants with respect to these six plaintiffs ceased in the following years: 1963 (James T. Clapp), 1969 (Omer T. Rogers), 1974 (William M. Baker), 1979 (Helen M. Igo), 1979 (Robert E. Godfrey). Like Braswell, none of the other plaintiffs filed their complaints within two years of their most recent exposure to asbestos. ¹ The parties dispute at what time these plaintiffs were first cognizant of their conditions and, as to some plaintiffs, when they were first diagnosed by a physician to have an asbestos-related disease.

The trial court in these consolidated actions granted summary judgment in favor of defendants on the ground that plaintiffs' actions were time-barred by Indiana statutes of limitations. Additionally, the court granted motions to dismiss for lack of in personam jurisdiction in favor of defendants Bell Asbestos Mines, Ltd. and Flintkote Mines, Ltd. The court also granted summary judgment in favor of Raybestos-Manhattan, Inc. on all product liability counts on the ground that the defendant was not engaged in the business of selling asbestos. Defendant Lake Asbestos of Quebec, Ltd. has settled with the plaintiffs during the pendency of this appeal.

I

Plaintiffs argue that the statute of limitations in Indiana's Product Liability Act, Ind.Code Sec. 33-1-1.5-5 (1981), violates plaintiffs' due process rights guaranteed by the Fourteenth Amendment. Section 33-1-1.5-5 states:

Sec. 5. Statute of Limitations. This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, any product liability action must be commenced within two (2) years after the cause of action accrues or within ten (10) years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight (8) years but not more than ten (10) years after the initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.

Thus Sec. 33-1-1.5-5 provides for a two-year statute of limitations, limited by a ten-years-from-delivery clause. ²

As an initial matter, it should be noted that prior to June 1, 1978, the date of enactment of Sec. 33-1-1.5-5, the Indiana statute of limitations applicable in these types of actions was Ind.Code Sec. 34-1-2-2 (1976), which states that actions "[f]or injuries to person [shall be brought] within two years ...." Plaintiffs on appeal have not directly challenged the constitutionality of Sec. 34-1-2-2, yet Sec. 34-1-2-2 was invoked by the district court as the basis for granting summary judgment in favor of defendants on most claims. Under the district court's analysis, each plaintiff's cause of action accrued when the plaintiff was last exposed to asbestos from a particular manufacturer or supplier. Since five of the seven exposed plaintiffs were last exposed prior to June 1, 1978, the enactment date of Sec. 33-1-1.5-5, the trial court reasonably concluded that Ind.Code Sec. 34-1-2-2 should apply to these plaintiffs. Section 33-1-1.5-5 bars only those actions of two plaintiffs against defendants who supplied asbestos which contaminated those plaintiffs after June 1, 1978. ³ Since, as discussed infra, this Court concurs in the trial court's holding that accrual occurs no later than at the time of the most recent exposure, the constitutional challenge to Sec. 33-1-1.5-5 alone does not impact most of the plaintiffs' claims herein for Sec. 34-1-2-2 must also be considered.

Plaintiffs' contention that Ind.Code Sec. 33-1-1.5-5 violates due process cannot be accepted. The policy behind statutes of limitations was recently articulated in United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 356-357, 62 L.Ed.2d 259, in which the constitutionality of a two-year federal statute of limitations was upheld:

Statutes of limitations which "are found and approved in all systems of enlightened jurisprudence," Wood v. Carpenter 01 U.S. 135, 139 (1879), represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them." Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349 [64 S.Ct. 582, 586, 88 L.Ed. 788] (1944). These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Marion, 404 U.S. 307, 322, n. 14 [92 S.Ct. 455, 464 n. 14, 30 L.Ed.2d 468] (1971); Burnett v. New York Central R. Co., 380 U.S. 424, 428, [85 S.Ct. 1050, 1054, 13 L.Ed.2d 941] (1965); Chase Securities Corp. v. Donaldson, 325 U.S. 304, 314, [65 S.Ct. 1137, 1142, 89 L.Ed. 1628] (1945); Missouri, K. & T.R. Co. v. Harriman, 227 U.S. 657, 672, [33 S.Ct. 397, 401, 57 L.Ed. 690] (1913); Bell v. Morrison, 1 Pet. 351, 360, 7 L.Ed. 174 (1828).

Section 2401(b), the limitations provision involved here, is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. Campbell v. Haverhill, 155 U.S. 610, 617, [15 S.Ct. 217, 220, 39 L.Ed. 280] (1895); Bell v. Morrison, supra, [1 Pet.] 360, . We should regard the plea of limitations as a "meritorious defense, in itself serving a public interest." Guaranty Trust Co. v. United States, 304 U.S. 126, 136, [58 S.Ct. 785, 790, 82 L.Ed. 1224] (1938).

This Court finds Indiana's Product Liability Act, Ind.Code Sec. 33-1-1.5-5 to be consistent with the above-stated policies which support statutes of limitations. This finding echoes that in Pitts v. Unarco Industries, Inc., 712 F.2d 276 (7th Cir.1983), in which this Court rejected a due process challenge to this very statute by a representative of an asbestosis victim. We discern no justifiable grounds upon which to disturb our prior holding. See also Scalf v. Berkel, Inc., 448 N.E.2d 1201 (Ind.App.1983) (Court of Appeals of Indiana finding that Sec. 33-1-1.5-5 is rationally related to a legitimate state purpose).

The Sixth Circuit in Mathis v. Eli Lilly & Co., 719 F.2d 134 (6th Cir.1983), held that a Tennessee statute of limitations that bars product liability actions brought more than ten years after the product was purchased does not violate due process, even though it may operate to extinguish some claims before injury actually becomes manifest. Similar to the ten-years-from delivery clause of Ind.Code Sec. 33-1-1.5-5, the statute at issue in Mathis, Tenn.Code Sec. 29-28-103 (1979) imposed with some exceptions a ten-year limit on bringing actions against manufacturers and sellers dating from the time the product was "first purchased for use...." ⁴ The plaintiff sought damages for personal injury due to her in utero exposure to diethylstilbestoral (DES), a drug developed as a synthetic hormone to prevent miscarriages. Plaintiff alleged that her mother took DES in 1955, without knowledge that the drug might cause cancer in her offspring. Further, she alleged that she did not know she had developed cancer of the cervix until 1980. The trial court held that the action was barred by the Tennessee statute, and the Sixth Circuit affirmed, rejecting plaintiff's due process challenge. The Court recognized that there is a rational relationship between the Tennessee statute and the goals and purposes of the statute, including "the desire to encourage product manufacturers to provide goods without undue costs and risks, and to make product liability insurance more readily available...." Mathis v. Eli Lilly & Co., supra, at 139.

The reasonableness of statutes...