Farber v. Lok-N-Logs, Inc.

• Decision Date: 05 August 2005
• Docket Number: No. S-04-523.,S-04-523.
• Citation: 270 Neb. 356,701 NW 2d 368
• Parties: SHARON L. FARBER, PERSONAL REPRESENTATIVE OF THE ESTATE OF JERRY L. FARBER, DECEASED, AND SHARON L. FARBER, INDIVIDUALLY, APPELLANT, v. LOK-N-LOGS, INC., A NEW YORK CORPORATION, ET AL., APPELLEES.
• Court: Nebraska Supreme Court

270 Neb. 356

701 NW 2d 368

SHARON L. FARBER, PERSONAL REPRESENTATIVE OF THE ESTATE OF JERRY L. FARBER, DECEASED, AND SHARON L. FARBER, INDIVIDUALLY, APPELLANT, v. LOK-N-LOGS, INC., A NEW YORK CORPORATION, ET AL., APPELLEES.

No. S-04-523.

Supreme Court of Nebraska.

Filed August 5, 2005.

Howard N. Epstein and Steven J. Riekes, of Marks, Clare & Richards, L.L.C., for appellant.

Michael S. Degan, of Blackwell, Sanders, Peper & Martin, L.L.P., and Robert L. Shuftan, Anthony G. Hopp, and Richard J. Jancasz, of Wildman, Harrold, Allen & Dixon, L.L.P., for appellee Wood Treating Chemicals Company.

Robert Keith, of Engles, Ketcham, Olsen & Keith, P.C., for appellees Lok-N-Logs, Inc., and Webb & Sons, Inc.

Kurth A. Brashear, of Brashear & Ginn, and Bruce A. Moothart and Leonard L. Wagner, of Husch & Eppenberger, L.L.C., for appellee Monsanto Company.

Jill Robb Ackerman, of Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, L.L.P., and David Bartel and Nora M. Platt, of Quarles & Brady, for appellee Vulcan Materials Company.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Plaintiff-appellant Sharon L. Farber (appellant), individually and as the personal representative of the estate of Jerry L. Farber (Farber), brought this product liability action against defendants-appellees Lok-N-Logs, Inc.; Monsanto Company; Vulcan Materials Company; Wood Treating Chemicals Company; Webb & Sons, Inc.; and John Doe—"Real Name Unknown" (collectively appellees). Dow Chemical Company, Blair Lumber Company, and Christensen Lumber Company originally were also named as defendants, but were dismissed from the case. Appellees filed motions for summary judgment. The district court for Washington County sustained the motions on the basis that appellant's action was barred by the 10-year statute of repose contained in Neb. Rev. Stat. § 25-224(2) (Cum. Supp. 2004). The district court dismissed the case with prejudice. Appellant filed an appeal from the district court's order dismissing the case. We conclude that the district court correctly concluded that the action was barred by the statute of repose in § 25-224(2), and accordingly, we affirm.

STATEMENT OF FACTS

Beginning in 1978 and continuing essentially until his death on March 17, 2003, Farber was employed by the Nebraska Game and Parks Commission at Fort Atkinson State Historical Park in Washington County, Nebraska. In June 1978, Farber began work constructing replica barracks at the park. The barracks were made of logs treated with "Pentachlorophenol" (penta), a wood preservative. Farber also applied a liquid form of penta to treat previously untreated wood used in the construction of the barracks. Farber worked on the construction of additional barracks in 1979. These barracks were also built using penta-treated logs and wood. The logs used in the construction of the barracks were allegedly supplied by appellee Lok-N-Logs, Inc., a New York corporation, and the logs were allegedly treated with penta by appellee Webb & Sons, Inc., also a New York corporation. The penta was allegedly manufactured by appellees Wood Treating Chemicals Company, Monsanto Company, and Vulcan Materials Company.

Farber's testimony was preserved in depositions. Farber testified that in the late summer or early fall of 1979, he was instructed to stop using liquid penta, allegedly because the federal government had determined that penta was a carcinogen. Thereafter, when the park constructed additional barracks, different wood preservatives were used on the logs and other materials. Farber testified, however, that he regularly worked in and around the barracks constructed of penta-treated logs and wood and that his responsibilities included opening and airing out the barracks for the season after they had been closed, as well as various construction projects that required him to work on the penta-treated materials.

Regarding his medical condition, the record reflects that Farber smoked and that during his lifetime, he had had numerous surgeries, including six angioplasties, four stents, double bypass surgery, left knee replacement surgery, and gallbladder surgery. In December 2001, Farber underwent a series of medical tests to determine the cause of certain medical problems he was experiencing. In January 2002, Farber was diagnosed with myelodysplastic syndrome, a blood disorder. Farber testified that he was also informed by his doctors that he had suffered some sort of chromosome damage. In spring 2002, Farber was diagnosed with acute myelogenous leukemia. On December 27, 2002, Farber and appellant filed the original petition. Farber died on March 17, 2003.

Appellees each moved for summary judgment. The motions came on for hearing on February 24, 2004. Numerous exhibits, including two separate depositions of Farber, were offered and admitted into evidence. On March 31, the district court sustained appellees' motions and dismissed the case with prejudice, determining that the applicable statute of repose in § 25-224(2) had extinguished the action and that appellant was therefore barred from bringing her claims against appellees. Appellant filed an appeal from the district court's order sustaining appellees' motions for summary judgment.

ASSIGNMENT OF ERROR

Appellant assigns one error. Appellant claims that the district court erred in determining that appellant's lawsuit was barred by § 25-224(2).

STANDARDS OF REVIEW

[1] Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Blair v. State Farm Ins. Co., 269 Neb. 874, 697 N.W.2d 266 (2005).

[2] Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. Id.

ANALYSIS

In its memorandum and order filed March 31, 2004, the district court granted summary judgment in favor of all appellees and dismissed appellant's petition. As established by the record and noted by the district court, the liquid penta and penta-treated logs were first delivered to Fort Atkinson State Historical Park in 1978 and in any event "no later than 1979," whereupon Farber was exposed to the penta. The district court correctly noted that these determinative facts were not in dispute. The district court further noted that appellant's case was a product liability action, see Neb. Rev. Stat. § 25-21,180 (Cum. Supp. 2004), and, relying on Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991), concluded that the action was barred "no later than 1989" by the 10-year statute of repose found in § 25-224(2).

On appeal, appellant contends that the district court erred in concluding that appellant's case was barred by the statute of repose found in § 25-224(2). In urging this court to reverse the district court's grant of summary judgment in favor of appellees, appellant makes several claims including the argument that Givens should be overruled or, in the alternative, that this court should make a judicial exception to the statute of repose for latent medical conditions, which exception would afford relief from the bar otherwise imposed by § 25-224(2). Upon due consideration, we reject appellant's arguments and conclude that the district court did not err in concluding that appellant's action was barred by the statute of repose and in granting summary judgment in favor of appellees.

A review of the statutory limitations periods applicable to products liability actions is critical to our resolution of this case. Section 25-224(1), effective July 22, 1978, preserved the 4-year statute of limitations previously found at Neb. Rev. Stat. § 25-207 (Reissue 1995) and, in addition, enacted a 10-year statute of repose. Section 25-224(1) and (2) (Cum. Supp. 1978) thus provided as follows:

(1) All product liability actions shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

A 2-year sunset provision, not relevant here, was contained in § 25-224(4).

By virtue of 1981 Neb. Laws, L.B. 29, effective August 30, 1981, § 25-224 was amended by adding § 25-224(5), thus affording asbestos-related claims the protection of a discovery rule and relieving such claims from the strictures of the statute of repose. Section 25-224(5) provides:

Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought

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