Ganske v. Spahn & Rose Lumber Co., No. 96-865

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Considered by McGIVERIN; LARSON
• Citation: 580 N.W.2d 812
• Parties: Larry J. GANSKE and Lois Ganske, Appellants, v. SPAHN AND ROSE LUMBER CO., An Iowa Corporation; Carnation Company, A Delaware Corporation; Nestle Food Company a/k/a Nestle Beverage Company, A Delaware Corporation; and Deere & Company a/k/a John Deere Company, A Delaware Corporation, Appellees, Bird, Incorporated, A Massachusetts Corporation; Combustion Engineering, Inc., A Delaware Corporation; The Flintkote Company, A Massachusetts Corporation; Garlock, Inc., An Ohio Corporation; Georgia Pacific Corporation, A Georgia Corporation; Owens Corning Fiberglas Corporation, A Delaware Corporation; Owens Illinois, Inc., A Delaware Corporation; Pittsburgh Corning Corporation, A Pennsylvania Corporation; PPG Industries, Inc., A Pennsylvania Corporation; Rapid-american Corporation, A Delaware Corporation; John Doe 1; John Doe 2; John Doe 3; and Various Unknown John Does To Be Named When Identified, Defendants.
• Decision Date: 01 July 1998
• Docket Number: No. 96-865

Page 812

580 N.W.2d 812 Larry J. GANSKE and Lois Ganske, Appellants,
v.
SPAHN AND ROSE LUMBER CO., An Iowa Corporation; Carnation Company, A Delaware Corporation; Nestle Food Company a/k/a Nestle Beverage Company, A Delaware Corporation; and Deere & Company a/k/a John Deere Company, A Delaware Corporation, Appellees,
Bird, Incorporated, A Massachusetts Corporation; Combustion Engineering, Inc., A Delaware Corporation; The Flintkote Company, A Massachusetts Corporation; Garlock, Inc., An Ohio Corporation; Georgia Pacific Corporation, A Georgia Corporation; Owens Corning Fiberglas Corporation, A Delaware Corporation; Owens Illinois, Inc., A Delaware Corporation; Pittsburgh Corning Corporation, A Pennsylvania Corporation; PPG Industries, Inc., A Pennsylvania Corporation; Rapid-american Corporation, A Delaware Corporation; John Doe 1; John Doe 2; John Doe 3; and Various Unknown John Does To Be Named When Identified, Defendants. No. 96-865. Supreme Court of Iowa. July 1, 1998.

Page 813

Lex Hawkins, Glenn L. Norris, George F. Davison, Jr., and Carla T. Schemmel of Hawkins & Norris, Des Moines, for appellants.

James Heckmann of James Heckmann Law Offices, P.C., Dubuque, for appellee Spahn & Rose Lumber Co.

Randall Stefani of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellee Nestle Food Company.

Richard J. Sapp and Thomas H. Walton of Nyemaster, Goode, McLaughlin, Voigts, West, Hansell & O'Brien, P.C., Des Moines, for appellee Deere & Co.

Considered by McGIVERIN, C.J., and LARSON, LAVORATO, ANDREASEN, and TERNUS, JJ.

LARSON, Justice.

The district court dismissed these plaintiffs' common-law suit for damages based on an employee's contraction of mesothelioma. The court dismissed the suit on the ground that our workers' compensation and occupational disease statutes are the exclusive means of obtaining benefits for that disease. See Iowa Code chs. 85, 85A (1995). We affirm.

I. Facts and Judicial Proceedings.

For many years prior to 1985, Larry J. Ganske worked for employers whose sites, he alleges, exposed him to asbestos. In 1994 Ganske was diagnosed with mesothelioma, an asbestos-related cancer. ¹ Ganske and his wife sued various former employers and manufacturers of asbestos products. Because the issue on this appeal is limited to the exclusivity of our workers' compensation statutes, only Ganske's former employers are involved. The manufacturers of the asbestos products are not participants in this appeal.

Ganske worked for Spahn and Rose Lumber Company in 1959, for Carnation Company (now Nestle Food Co.) from 1966 to 1973, and for Deere & Company from 1973 to 1985. Ganske alleged that he was exposed to various asbestos-containing products during his employment with all of these companies. The employers concede, for purposes of this appeal, that Ganske's disease arose out of and in the course of his employment.

Page 814

The defendants filed motions, variously referred to as motions to dismiss and motions for summary judgment, all alleging the same defense: as a matter of law, Ganske's common-law claims for work-related disease are preempted by the workers' compensation and occupational disease statutes found in Iowa Code chapters 85 and 85A.

II. The Law.

Iowa Code section 85A.12 states:

An employer shall not be liable for any compensation for an occupational disease unless such disease shall be due to the nature of an employment in which the hazards of such disease actually exist, and which hazards are characteristic thereof and peculiar to the trade, occupation, process, or employment, and such disease actually arises out of the employment, and unless disablement or death results within three years in case of pneumoconiosis, or within one year in case of any other occupational disease, after the last injurious exposure to such disease in such employment....

It is undisputed that Ganske's mesothelioma did not develop within either the one-year or three-year period provided by this section. He stopped working in those environments in 1985 and was not diagnosed with mesothelioma until 1994, so it appears that this suit is barred. Ganske argues, however, that, because his workers' compensation recovery is precluded by the time requirements of section 85A.12, his common-law right to recovery should remain intact--the quid pro quo for his loss of workers' compensation.

Ganske's legal hurdle, of course, is the exclusivity of workers' compensation. Iowa Code section 85.20 provides:

The rights and remedies provided in this chapter [workers' compensation], chapter 85A [occupational disease] or chapter 85B [hearing loss] for an employee on account of injury [or] occupational disease ... for which benefits under this chapter, chapter 85A or chapter 85B are recoverable, shall be the exclusive and only rights and remedies of such employee, the employee's personal or legal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury [or] occupational disease ... against:

1. the employee's employer....

(Emphasis added.) The parties apparently agree that mesothelioma is an occupational disease that normally would be compensable under the workers' compensation laws. The issue...