Bunker v. National Gypsum Co.
Decision Date | 15 July 1980 |
Docket Number | No. 3-779A193,3-779A193 |
Citation | 406 N.E.2d 1239 |
Parties | Richard D. BUNKER, Plaintiff-Appellant, v. NATIONAL GYPSUM CO., Defendant-Appellee. |
Court | Indiana Appellate Court |
Ronald L. Sowers, M. Robert Benson, Sowers & Benson, Fort Wayne, for plaintiff-appellant.
Jim A. O'Neal, James L. Petersen, Ice, Miller, Donadio & Ryan, Indianapolis, for defendant-appellee.
Appellant Richard D. Bunker was an employee of appellee National Gypsum Company from 1949 to 1966. National Gypsum manufactures items containing asbestos fibers. Bunker, from February 1949 to November 1950, was required to work in an area of intense and continuous exposure to asbestos dust and as a result thereof, Bunker has developed a disabling lung disease, asbestosis. He brought this civil action against National Gypsum alleging gross negligence in the failure to provide safe working conditions.
The complaint was dismissed for failure to state a claim upon which relief could be granted on the basis that Bunker's rights and remedies are governed exclusively by the provisions of the Indiana Occupational Disease Act, IC 1971, 22-3-7-1 et seq. (Burns Code Ed.). Judgment was subsequently entered in favor of National Gypsum.
The issue before this court 1 is which version of the act is applicable; the act as it existed in 1950, the time of Bunker's last exposure to asbestos dust, or the act as it existed at the time of his disablement.
If the 1950 version of the act is applied, the act would not be Bunker's exclusive remedy because the act at that time provided that it was only applicable to those who had affirmatively accepted it. There was no evidence presented that National Gypsum had accepted the act.
The 1963 amendment provided that an employee is required to accept compensation for disablement by occupational disease arising out of and in the course of his employment unless he has exempted himself from the provisions of the act. 2 Unless the employee has exempted himself from the act, it provides the exclusive rights and remedies on account of disablement or death by occupational disease. IC 22-3-7-6. 3
The act has at all times granted compensation on account of disablement or death. The mere exposure or contraction of an occupational disease does not entitle the employee to compensation. Durham Mfg. Co. v. Hutchins (1945), 115 Ind.App. 479, 58 N.E.2d 444; Hirst v. Chevrolet, Muncie Div. of General Motors Corp. (1941), 110 Ind.App. 22, 33 N.E.2d 773. No employee has a remedy under the act unless or until the occupational disease causes death or disablement.
In Hibler v. Globe American Corporation (1958), 128 Ind.App. 156, 147 N.E.2d 19, it was held that a cause of action under the act accrues and becomes vested at the time of disablement and/or death. The terms and conditions supplied by the Act in existence at that time are the terms and conditions which control and which the employee would be required to rely upon.
In Hirst v. Chevrolet, Muncie Div. of General Motors Corp. (1941), 110 Ind.App. 22, 27, 33 N.E.2d 773, 775, the court considered the argument that since the employee had contracted the occupational disease prior to the effective date of the act, her claim was not covered:
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Bunker v. National Gypsum Co.
...the Third District held that Respondent's exclusive remedy lay under Indiana's Occupational Diseases Act. Bunker v. National Gypsum Co., (1980) Ind.App., 406 N.E.2d 1239, 1241. The Court of Appeals also noted that no benefit claim can accrue unless and until an occupational disease actually......
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Bunker v. National Gypsum Co.
...a companion civil action we held that Bunker's exclusive remedy lay under Indiana's Occupational Disease Act. Bunker v. National Gypsum Co. (1980), Ind.App., 406 N.E.2d 1239. We also noted that under the language employed in that act no claim or action accrues to an employee unless and unti......
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Tribbett v. Tay Mor Industries, Inc.
...F.Supp. at 206. See also Harshman v. Union City Body Co. (1938) 105 Ind.App. 36, 13 N.E.2d 353 (en banc ); Bunker v. National Gypsum Co. (3d Dist.1980) Ind.App., 406 N.E.2d 1239. Tribbett's other assertions on appeal with respect to the alleged denial of adequate redress, due process and eq......