Brown v. Westinghouse Elec. Corp.

• Decision Date: 17 July 1990
• Docket Number: No. 57020,57020
• Citation: 803 S.W.2d 610
• Parties: Glenn BROWN, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 610

803 S.W.2d 610

Glenn BROWN, et al., Plaintiffs-Appellants, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant-Respondent.

No. 57020.

Missouri Court of Appeals,

Eastern District,

Division Four.

July 17, 1990.

James Peter Leonard, St. Louis, for plaintiffs-appellants.

Richard A. Wunderlich, St. Louis, Kellee A. Dennis, Clayton, for defendant-respondent.

STEPHAN, Judge.

Thirty-three plaintiffs commenced this action against Monsanto Company in the Circuit Court of the City of St. Louis on February 28, 1986. Sixteen plaintiffs are or were employed by Westinghouse Electric Corporation at its Bloomington, Indiana plant, seven at its Muncie, Indiana plant and ten at its Cincinnati, Ohio plant. Plaintiffs alleged they were injured as a result of exposure to polychlorinated biphenyls ("PCBs") and other allegedly toxic chemicals manufactured by Monsanto. Plaintiffs also alleged that on January 15, 1972, Monsanto entered into an indemnity agreement with Westinghouse. This agreement was included with the petition and stated, in pertinent part:

(a) PCBs tend to persist in the environment;

(b) care is required in their handling, use and disposition; and

(c) contamination of or adverse effect on humans was foreseeable.

An amended petition in which fifty-three plaintiffs joined, was filed on September 23, 1986. Monsanto was still the only named defendant. Each plaintiff specifically alleged that Westinghouse manufactured capacitors and transformers containing PCBs, that each individual plaintiff was employed, or had been employed, by Westinghouse, and that, while employed, each individual plaintiff was dangerously exposed to chemicals which caused the plaintiff injury.

Plaintiffs' second amended petition was filed March 24, 1989; and, for the first time, Westinghouse was named as a defendant. The allegations against Monsanto were essentially unchanged. An additional intentional tort was alleged, that Westinghouse:

[K]new and was aware of the dangerous propensities of PCBs, knew that persons such as Plaintiff would be exposed to the PCBs as a result of their employment, and knew that the exposure created great danger to Plaintiff of serious injury.

[I]ntentionally exposed Plaintiff to PCBs in the workplace when it was substantially certain that Plaintiff would be injured.

[I]ntentionally failed to warn Plaintiff of and/or deliberately concealed from Plaintiff the risks of exposure to PCBs.

[D]eliberately withheld medical information from Plaintiff regarding his work-related exposure to PCBs.

On May 16, 1989, Westinghouse filed a motion to dismiss the second amended petition for the following reasons: failure to state a claim upon which relief can be granted; all plaintiffs' claims are barred by the applicable statutes of limitation; all Indiana plaintiffs' claims are barred by the exclusive remedy provisions of the Indiana Worker's Compensation Act and the Indiana Worker's Occupational Diseases Act; plaintiffs failed to allege that Westinghouse acted with specific intent toward each and every plaintiff; the Ohio plaintiffs failed to allege that they have initiated Workers' Compensation proceedings, a prerequisite to instituting a claim against an employer for intentional tort; Ohio Rev.Code § 4121.80(A) (Baldwin 1986) specifically provides jurisdiction to an Ohio court on the issue of liability and to the Ohio Industrial Commission on the issue of damages; and, all plaintiffs purporting to be asserting claims as a result of an alleged death, fail to state a claim upon which relief may be granted under Missouri's Wrongful Death Statute.

Plaintiffs filed a memorandum in opposition to the motion to dismiss, along with the affidavits of Thomas E. Kotoske ("California Counsel") and David S. McCrae ("Indiana Counsel"), plaintiffs' attorneys of record. Both affidavits stated that they first became aware of Westinghouse's intentional acts in December 1988.

After further investigation, discovery and oral argument, the trial court issued the following order:

Defendant Westinghouse Electric Corporation's motion to dismiss plaintiffs' Second Amended Petition, heretofore heard and submitted, is hereby SUSTAINED as to defendant Westinghouse Electric Corporation only.

The Court finds that the above-styled cause constitutes a complex civil suit by multiple parties plaintiff against defendants seeking damages for injuries allegedly resulting from exposure to toxic substances due to defendants' alleged negligent and/or intentional acts or omissions. Further, the Court determines there is no just reason for delay of any appeal sought by a party or parties aggrieved by this Order. The Court, sua sponte, designates this Order to be final for purposes of appeal, pursuant to and in accordance with the provisions of Supreme Court Rule 74.01. ¹

Plaintiffs appeal from the trial court's order sustaining Westinghouse's motion to dismiss the second amended petition. We affirm.

Initially we note that, although Westinghouse filed a motion to dismiss, the trial court apparently considered matters outside the pleadings. The failure of the trial court to exclude matters outside the pleadings from its consideration transformed the motion to dismiss into a motion for summary judgment. Rule 55.27(b); Lawson v. St. Louis--San Francisco Railway, 629 S.W.2d 648, 649 (Mo.App.1982). Further, while the parties have provided us with a voluminous record, it was not made clear precisely which documents were actually before the trial court. It is not the function of the appellate court to sift through material furnished by the parties on appeal to determine the exact nature of the evidentiary material submitted to the trial court. Hill v. Air Shields, Inc., 721 S.W.2d 112, 116 (Mo.App.1986). It is a dangerous practice for attorneys to rely on this type of record. See, Johnson v. Johnson, 764 S.W.2d 711, 713 (Mo.App.1989). Since there is no transcript and we find no indication that either party objected to the evidence, we will consider what was presented to us in determining if there is a genuine issue of material fact. Id.

Review of summary judgment is equivalent to review of a court-tried or equity proceeding, and if, as a matter of law, the judgment is sustainable on any theory, the judgment of the trial court will be sustained. Roberts Fertilizer, Inc. v. Steinmeier, 748 S.W.2d 883, 886 (Mo.App.1988). Review is made of the entire record in a light most favorable to the party against whom summary judgment is entered. Id.

Plaintiffs raise five points on appeal. It is unnecessary for us to review all five because we find all but one claim is time barred by the applicable statutes of limitation. The other claim, we find, is barred by the exclusive remedy provisions of the Indiana Worker's Compensation Act.

I

We are required to look to the law of the state from which a cause of action "originates" to determine the appropriate statute of limitations. § 516.190, RSMo 1986; Renfroe v. Eli Lilly & Company, 686 F.2d 642, 646 (8th Cir.1982) (applying Missouri law). The purpose of this "borrowing" is not to extend the procedural law of one state into another, but to adopt the statute of another state. Trzecki v. Gruenewald, 532 S.W.2d 209, 211 (Mo. banc 1976). Section 516.190, RSMo 1986, Missouri's borrowing statute, reads:

Whenever a cause of action has been fully barred by the laws of the state, territory or country in which it originated, said bar shall be a complete defense to any action thereon, brought in any of the courts of this state.

The word "originated", as used in the statute, means accrued. Dorris v. McClanahan, 725 S.W.2d 870, 871 (Mo. banc 1987). "[F]or the purposes of sections 516.100 to 516.370, the cause of action shall not be deemed to accrue when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and is capable of ascertainment...." § 516.100, RSMo 1986. Missouri courts have borrowed the statute of limitations of another state when the last act necessary for the cause of action or the injury occurred outside Missouri. Patch v. Playboy Enterprises, Inc., 652 F.2d 754, 755 (8th Cir.1981) (applying Missouri law).

All plaintiffs were employed by Westinghouse in either Indiana or Ohio, and, according to their pleadings, all were injured as a result of their employment. Their cause of action, therefore, originated in either Indiana or Ohio. This does not, however, present us with a conflicts of law problem. By enacting § 516.190, RSMo 1986, the Missouri legislature precluded a conflicts of law question because it effectively "borrowed" the law of other states. Finnegan v. Squire Publishers, Inc., 765 S.W.2d 703, 707 (Mo.App.1989). Accordingly, the trial court properly applied the following statutes:

Ind. Code Ann. § 34-1-2-2

The following actions shall be commenced within the periods herein prescribed after the cause of action has accrued, and not afterwards:

(1) For injuries to person or character, for injuries to personal property, and for a forfeiture of penalty given by statute, within two (2) years.

Ohio Rev. Code § 2305.10

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

For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first. ²

II

As stated, supra, we need not examine conflicts of law principles in order to determine the applicable statutes of limitation. It is, however, necessary for us to apply conflicts principles in order to determine what substantive law should be applied.

In Kennedy v. Dixon, ...