Cossman v. Daimlerchrysler Corp.

• Decision Date: 14 April 2003
• Docket Number: No. A097110.,A097110.
• Citation: 108 Cal.App.4th 370,133 Cal.Rptr.2d 376
• Court: California Court of Appeals Court of Appeals
• Parties: Max COSSMAN, Plaintiff and Appellant, v. DAIMLERCHRYSLER CORPORATION et al., Defendants and Respondents.

133 Cal.Rptr.2d 376

108 Cal.App.4th 370

Max COSSMAN, Plaintiff and Appellant, v. DAIMLERCHRYSLER CORPORATION et al., Defendants and Respondents.

No. A097110.

Court of Appeal, First District, Division 1.

April 14, 2003.

As Modified April 30, 2003.

Harry F. Wartnick, San Francisco, Richard A. Brody, Novato, The Wartnick Law Firm, Frank S. Moore, Law Offices of Frank S. Moore, for Plaintiff and Appellant Max Cossman.

Justs N. Karlsons, David M. Rice, Rosemary Springer, San Francisco, Carroll, Burdick, & McDonough, LLP, for Defendants and Respondents DaimlerChrysler Corp., Ford Motor Co., Mercedes-Benz USA, LLC, and Volkswagen of America, Inc.

Gary T. Drummond, Esq., Walnut Creek, Stevens, Drummond & Gifford, for Respondent Pneumo Abex Corp., Inc.

MARCHIANO, P.J.

Plaintiffs Max and Bette Cossman brought an action alleging that Bette Cossman was exposed to asbestos that resulted in a diagnosis of mesothelioma in 1994. Max Cossman appeals from the superior court's granting of a nonsuit in favor of several Indiana defendants based on the Indiana statute of limitations.¹

The issue we consider is whether a nonresident plaintiff may bring a tort action in California that accrued in another state and was caused by acts in the other state notwithstanding the fact that the action is barred by the statute of limitations of the foreign state. We conclude that Code of Civil Procedure section 361 bars the action and affirm.²

BACKGROUND

Max and Bette Cossman were born in Indiana. They met in Indiana in 1941 and married in 1943 in South Bend, Indiana. At that time, Mr. Cossman was in the United States Navy, stationed in California. Mrs. Cossman went to live with her husband in Seal Beach, California, from approximately August of 1943 until the end of that year. At that time, Mr. Cossman was assigned to the South Pacific and Mrs. Cossman returned to Indiana to live with her parents.

In July or August of 1945, Mr. Cossman returned and was stationed in the Long Beach area. Mrs. Cossman went to California when she learned his ship would be in for repairs for three to four weeks. The couple remained in California for approximately four months, until December of 1945, when Mr. Cossman was placed on inactive duty. During the four months that the couple was in California in 1945, Mr. Cossman was exposed to asbestos products manufactured by defendants who are not parties to this appeal, including Garlock, Inc. Those products were used or removed from the ship, which was being overhauled.³ Mrs. Cossman was allegedly exposed when she did her husband's laundry.

In January of 1946, the couple returned to Indiana and did not leave the state again. Max Cossman worked in his family's auto parts and salvage business, where he was exposed to asbestos-containing automotive friction products in brakes and brake gaskets produced by defendants DaimlerChrysler Corporation, Ford Motor Company, Mercedes-Benz USA, LLC, Volkswagen of America, Inc., Pneumo Abex Corporation, Inc., and Moog Automotive, referred to by the parties collectively as the "friction defendants."⁴ Mrs. Cossman's exposure was alleged to be household exposure to asbestos dust brought home on her husband's clothing.

In 1994, Bette Cossman was diagnosed with mesothelioma. At that time, doctors told the Cossmans that the disease was caused by asbestos exposure. The Cossmans did not consult an attorney at that time. The doctors asked if the Cossmans had ever worked in any field involving asbestos. The Cossmans' only exposure to asbestos products of the friction defendants was in Indiana.

On April 28, 2000, more than five years after Bette Cossman's diagnosis, the Cossmans filed a complaint for damages in San Francisco Superior Court, alleging negligence, strict liability, loss of consortium and other causes of action against multiple defendants, including the friction defendants and the asbestos manufacturers and suppliers responsible for exposures to asbestos products during the time the couple lived in California. The Cossmans were residents of Indiana at the time the complaint was filed.

On October 30, 2000, the friction defendants filed a motion for summary judgment, arguing that the Indiana statute of limitations barred the action. In its December 26, 2000 order, the court noted that the Cossmans admitted they were not exposed to any products of the friction defendants while living in California. The court reasoned that it could not determine from the facts submitted whether the injury alleged to have been caused in California was a separate and distinct injury from that caused in Indiana. The court noted that if the injury was a single injury caused by joint exposure, section 361 might bar the action. The court denied the motion.

In the early months of 2001, the friction defendants brought before the trial judge motions for nonsuit and motions in limine, again arguing that the action was barred by Indiana's statute of limitations. On February 14, 2001, the court filed a memorandum on statute of limitations and repose, stating that the court had determined that the Indiana statute applied to the defendants who caused injury in Indiana. The Cossmans submitted proposed stipulated facts or, if defendants did not stipulate, an offer of proof, stating that it was for the limited purpose of the court's decision on the choice of law between Indiana and California.⁵

The court stayed the matter while plaintiffs filed a writ petition in this court. We denied the petition on March 7, 2001. The Cossmans filed another offer of proof in the trial court. They offered to stipulate that Bette Cossman's exposure to asbestos fibers from the defendants' products occurred no later than 1985 and that the complaint was filed on April 28, 2000.

At a hearing on July 26, 2001, the Cossmans agreed to submit the matter on the entire record that had been submitted in connection with the nonsuit motion. Their counsel argued that even though Bette Cossman went back to live in Indiana between 1943 and 1945, she remained a resident of California until Mr. Cossman was released from active service and the couple established a permanent residence in Indiana.

After argument, the court reaffirmed its conclusion that Indiana law governed the case as to the friction defendants. The court found insufficient evidence had been submitted to establish that Bette Cossman was a citizen of California while her husband was in the Navy. It determined that the only exposure to the friction defendants' products took place in Indiana. The court found that the action was barred under the applicable Indiana statute, in that the action was not filed within two years of accrual or within 10 years after the delivery of the product to the initial user.

The court granted the motion for nonsuit. Judgment was entered on August 20, 2001. The Cossmans' motion for a new trial was denied on October 12, 2001. On November 9, 2001, the Cossmans appealed.

DISCUSSION

Plaintiff Max Cossman⁶ contends that the trial court incorrectly used section 361, California's borrowing statute, to apply Indiana's statute of limitations to the friction defendants. He argues that section 361 cannot be properly applied to indivisible injuries caused by multiple exposures to asbestos and that he comes within a statutory exception for California citizens. He also contends that even if the action arose in Indiana, the Indiana statute of repose does not apply to asbestos-caused diseases and that the defendants failed to prove the date the injury accrued for purposes of the statute of limitations. Cossman also argues that this application of the Indiana statute of repose is unconstitutional. Finally, he contends that a govern mental interest analysis requires the application of California law.

We agree with the trial court's conclusion that section 361 requires the application of Indiana law in the case of the friction defendants and that the Indiana two-year statute of limitations bars the claim. Because we find that section 361 and the two-year statute of limitations control the result in this case, we do not reach issues regarding the 10-year statute of repose or the governmental interest analysis outlined in Hurtado v. Superior Court (1974) 11 Cal.3d 574, 114 Cal.Rptr. 106, 522 P.2d 666.

Standard of Review of Order Granting Nonsuit

"A motion for nonsuit or demurrer to the evidence concedes the truth of the facts proved, but denies as a matter of law that they sustain the plaintiffs case. A trial court may grant a nonsuit only when, disregarding conflicting evidence, viewing the record in the light most favorable to the plaintiff and indulging in every legitimate inference which may be drawn from the evidence, it determines there is no substantial evidence to support a judgment in the plaintiffs favor." (Edwards v. Centex Real Estate Corp. (1997) 53 Cal. App.4th 15, 27-28, 61 Cal.Rptr.2d 518 (Edwards), italics omitted.)

On appeal, "[w]e are bound by the same rules as the trial court. Therefore, on this appeal we must view the evidence most favorably to appellants, resolving all presumptions, inferences and doubts in their favor, and uphold the judgment for respondents only if it was required as a matter of law." (Edwards, supra, 53 Cal.App.4th at p. 28, 61 Cal.Rptr.2d 518.)

Section 361 Requires Application of Indiana Law

In general, whether a claim is barred by a statute of limitations "is a procedural matter governed by the law of the forum, regardless of where the cause of action arose." (Biewend v. Biewend (1941) 17 Cal.2d 108, 114, 109 P.2d 701 (Biewend) [overruled on another point in Worthley v. Worthley (1955) 44 Cal.2d 465, 469-470, 283 P.2d 19].) In consulting California law, we observe that the statute of limitations for asbestos actions does not begin to run against plaintiffs who retired before the onset of what would have been a disability caused by asbestos exposure. (§ 340.2;⁷ Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127,...