Celotex Corp. v. Copeland

• Citation: 471 So.2d 533,10 Fla. L. Weekly 309
• Decision Date: 13 June 1985
• Docket Number: Nos. 65124,65154 and 65394,s. 65124
• Parties: , 10 Fla. L. Weekly 309, Prod.Liab.Rep. (CCH) P 10,731 CELOTEX CORPORATION, et al., Petitioners, v. Lee Loyd COPELAND, et al., Respondents.
• Court: United States State Supreme Court of Florida

Page 533

471 So.2d 533

54 USLW 2006, 10 Fla. L. Weekly 309,

Prod.Liab.Rep. (CCH) P 10,731

CELOTEX CORPORATION, et al., Petitioners, v. Lee Loyd COPELAND, et al., Respondents.

Nos. 65124, 65154 and 65394.

Supreme Court of Florida.

June 13, 1985.

Thomas C. MacDonald, Jr., Clark Jordan-Holmes, Charles P. Schropp and Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, James W. Kynes, Tampa; Julian Clarkson of Holland & Knight, Tallahassee, for petitioner The Celotex Corp.

James E. Tribble, Diane H. Tutt and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner Owens-Corning Fiberglas Corp.

Michael K. McLemore of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for petitioner Eagle-Picher Industries, Inc.

Michael T. McKenna of Knecht & Whelchel, Coral Gables, for petitioner Nicolet, Inc.

C. Bryant Boydstun, Jr., of Lyle & Skipper, St. Petersburg, for petitioner Fibreboard Corp.

Arthur H. Taylor of Spencer, Taylor & Homer, Miami, for petitioner The Flintkote Co.

Jane N. Saginaw of Baron & Associates, Dallas, and Louis S. Robles, Miami, for respondents.

Norwood S. Wilner, of Zisser, Robison Spohrer, Wilner & Harris, Jacksonville, for amicus curiae Keene Corp.

Steven R. Berger and Wolpe & Leibowitz, Miami, for amicus curiae H.K. Porter Co., Inc.

Carl D. Motes and Kimberly A. Ashby of Maguire, Voorhis & Wells, Orlando; and Jon W. Zeder and Douglas M. Halsey of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for amicus curiae Florida Defense Lawyers Association.

Robert M. Klein and Caron E. Speas of Stephens, Lynn, Chernay, Klein & Zuckerman, Miami, for amicus curiae Pittsburgh Corning Corp.

James C. Rinaman, Jr., and Tracey I. Arpen, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for amicus curiae Owens-Illinois, Inc.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for amicus curiae The Academy of Florida Trial Lawyers.

OVERTON, Justice.

This asbestos-related injury case is before us on three petitions to review two decisions of the Third District Court of Appeal reported as Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984) (Celotex ), and Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984) (Armstrong ). The district court decisions involve the same basic factual circumstances relating to a suit instituted by Copeland, a former asbestos worker who contracted asbestosis and asbestos-related cancer, and his wife against sixteen manufacturers of asbestos products.

In Celotex the district court, in a split decision, reversed the trial court's grant of Celotex's motion to dismiss for failure to state a cause of action and expressly approved the use of the market share theory of liability in asbestos cases. The district court, in a separate order, certified the following question as being of great public importance: ¹

Whether market share liability as announced in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912 [101 S.Ct. 285, 66 L.Ed.2d 140], should be adopted in Florida.

For the reasons expressed, we answer the certified question in the negative and quash the decision of the district court. We find the record indicates that Copeland has a proper cause of action against identified manufacturers of asbestos products and, therefore, there is no need to adopt the market share theory of liability in this cause.

In Armstrong the trial court granted summary judgments in favor of all petitioners on the ground that the statute of limitations barred the Copelands' action. In reversing, the district court found that, under the particular facts of this case, summary judgment was not proper because there was an issue of fact as to when the asbestos exposure manifested itself in a way that provided evidence of a causal relationship to the asbestos product. The district court also approved the use of the market share theory in accordance with its decision in Celotex. We find conflict with Vecta Contract, Inc. v. Lynch, 444 So.2d 1093 (Fla. 4th DCA), review denied, 453 So.2d 44 (Fla.1984). ² We approve that part of the Armstrong decision concerning the statute of limitations but, in accordance with our decision in Celotex, we quash that portion relating to the market share theory of liability.

Facts

The facts of this cause are as follows. Copeland worked from 1942 until 1975 as a boilermaker. During this time he was exposed to various asbestos products while employed in from 50 to 100 different jobs. Copeland became aware of the possible health hazards of asbestos dust in 1958 or 1959, but he did not suffer any physical problems until the late 1960's, and he was not conclusively diagnosed as having asbestosis until 1978.

Copeland and his wife filed suit in 1979, alleging that Copeland had been exposed to and injured by asbestos products manufactured and distributed by sixteen corporate defendants or their predecessors in interest. The sixteen companies originally named as defendants in the action are: Armstrong World Industries, Inc.; The Flintkote Company; GAF Corporation; Owens-Corning Fiberglas Corporation; Owens-Illinois Inc.; Johns-Manville Sales Corporation; Eagle-Picher Industries, Inc.; Combustion Engineering, Inc.; H.K. Porter Company, Inc.; The Celotex Corporation; Raymark Industries, Inc.; Unarco Industries, Inc.; Pittsburgh Corning Corporation; Nicolet Industries, Inc.; Fibreboard Corporation; and Keene Corporation.

The action was based upon the theories of strict liability, negligence, and breach of warranty. The complaint alleged that the defendants failed to warn Copeland that exposure to asbestos products created a grave health hazard; that this failure to warn was the proximate cause of Copeland's contracting asbestosis and cancer; that, while Copeland could identify some of the products to which he was exposed, he could not identify each exposure that he sustained; that the products to which Copeland was exposed were unidentifiable as to manufacturer due to the fact that they were removed from the original containers when the exposure occurred; and that, because each exposure contributed to Copeland's injury, the doctrine of joint and several liability should be extended to each of the manufacturers through the application of the market share theory of liability that was adopted by the Supreme Court of California in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal.Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), to deal with injuries caused by DES, a drug prescribed to pregnant women to prevent miscarriages.

Celotex filed a motion to dismiss for failure to state a cause of action, asserting that Copeland had failed to set forth sufficient ultimate facts identifying what product was manufactured by Celotex, what defect allegedly existed, and when, where, and how the accident occurred. The trial court granted the motion on the ground that the theories of enterprise liability, market share liability, alternative liability, concert of action, or any other theories of liability addressed in Sindell were not cognizable under Florida law. The market share theory of liability is the subject of the district court's Celotex decision.

The remaining manufacturers, including Armstrong Cork, subsequently filed motions for summary judgment on the ground that the action was barred by the running of the applicable statute of limitations, sections 95.031(2) and 95.11(3)(e), Florida Statutes (1981). The motions alleged that Copeland was on notice of the dangers of asbestos in the late 1960's; that he knew he had been inhaling asbestos dust during the 1960's; that he was having respiratory problems and sought medical attention in 1972; and that he had quit his job in 1975 because of his breathing problems. Further, the movants asserted that the evidence reflected that Copeland's action accrued no later than April, 1975, and, since he did not file his suit until June, 1979, the four-year statute of limitations period had run. The trial court granted the motions and dismissed the complaint with prejudice. The trial court also granted a motion for summary judgment for three of the manufacturers on the ground that the record reflected no identification of any product produced by the manufacturers. In so ruling, the trial court specifically rejected the Sindell theory of liability. These issues are the subject of the district court's Armstrong decision.

The record reflects that, in depositions, Copeland was able to specifically identify at least eleven of the defendant corporations as having supplied the asbestos products to which he had been exposed. ³ He also stated that the asbestos materials to which he had been exposed came in several different forms and were used for different purposes. Essentially all of the materials were used as insulation in boilers, refrigeration units, and ships. Copeland testified that the materials were used in different capacities and, consequently, each had different physical characteristics. Virtually all of the products were in the form of "wet" cements, "cork" sheets, cloth-covered sheets, and blocks. These materials contained asbestos which was gray or off-white in color and, in all but the wet cements, the asbestos was flaky or powdery.

The Market Share Theory of Liability

The district court, in its opinion in Celotex, determined that Copeland alleged sufficient ultimate facts to be entitled to an opportunity to prove his allegations under the market share theory advanced in Sindell. The court noted that: (1) asbestosis results from cumulative exposure to asbestos dust and cancer attributable to asbestos may result from a single exposure; (2) manifestation of the diseases may not occur until many years after initial exposure; and (3) it is difficult, if not impossible, to determine which exposure is responsible for the disease. Acco...