Gill v. Evansville Sheet Metal Works, Inc.

Decision Date25 June 2012
Docket NumberNo. 49S05–1111–CV–672.,49S05–1111–CV–672.
PartiesSharon GILL, on her own behalf and on behalf of the Estate of Gale Gill, Appellant (Plaintiff below), v. EVANSVILLE SHEET METAL WORKS, INC., Appellee (Defendant below).
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Linda George, W. Russell Sipes, Todd Barnes, Michael L. Schultz, Kathleen A. Farinas and Ashleigh M. Resetarits, Indianapolis, IN, Attorneys for Appellant.

Ross E. Rudolph, James B. Godbold, Joseph H. Langerak IV, Evansville, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A05–0912–CV–699

SULLIVAN, Justice.

The plaintiff claims that her husband's death was caused by the defendant's negligence in installing or removing asbestos-containing materials. The trial court ruled for the defendant because the claim had not been brought within the time Indiana law requires for a claim arising from the construction of an “improvement to real property.” We reverse the trial court because there is a genuine issue of material fact as to whether the defendant's work constituted an “improvement to real property,” as that phrase is commonly understood.

Background

Gale Gill was employed from at least 1963 until 1986 by Aluminum Company of America (“Alcoa”) in Newburgh, Indiana, where he was a “pot room worker” responsible for operating, repairing, and maintaining smelting pots. Over the course of his employment, Gale allegedly was exposed to and inhaled asbestos fibers while asbestos-containing products were being handled and used by others. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer on May 4, 2005.

Evansville Sheet Metal Works, Inc. (ESMW), allegedly worked as a contractor for Alcoa at “a common work site with [Gale] Gill where materials containing asbestos were present and/or used.” Appellant's App. 95. It is unclear exactly when this alleged work occurred, but it is undisputed that any ESMW project through which Gale might have been exposed to asbestos was substantially completed by 1989.

On May 4, 2007, Sharon Gill filed a complaint in Marion Superior Court against ESMW and eighteen other defendants, asserting wrongful-death claims based on several legal theories. As to ESMW, Gill sought damages on theories of products liability and contractor negligence.

The complaint was placed on the Marion County Mass Tort Asbestos Litigation Docket, thereby triggering specific local rules applicable in asbestos cases. See LR49–TR01–ASB Rule 700. The case was stayed under the local rules because it was neither exigent nor set for trial. LR49–TR40 Rule 711(H). Hardly any activity occurs when a case is stayed. But an exception to this principle is an “initial summary judgment motion under Local Rule 714, which gives a party in a stayed case a limited opportunity to seek summary judgment prior to engaging in any discovery. LR49–TR56 Rule 714.

ESMW sought initial summary judgment on grounds that Gill's product-liability and contractor-negligence claims were barred by the product-liability statute of repose 1 and the construction statute of repose (“CSoR”),2 respectively. The trial court granted ESMW's motion as to the product-liability claim, but it denied the motion as to the contractor-negligence claim because there was a genuine issue of material fact as to whether the CSoR applied.

A few months later, ESMW filed a renewed initial summary judgment motion, again arguing that the contractor-negligence claim was barred by the CSoR. 3 Gill responded that ESMW had failed to demonstrate that it had been involved in the construction of an “improvement to real property,” as required by the statute. In turn, ESMW maintained that the complaint established this requirement because Gill had alleged that ESMW had “applied or removed asbestos containing products which caused injury to [Gale] Gill.” Appellant's App. 25. The trial court agreed with ESMW and held that the application or removal of asbestos-containing products or asbestos-insulated equipment by a contractor is an improvement to real property.

Gill appealed the trial court's ruling that the CSoR barred her contractor-negligence claim, and the Court of Appeals affirmed. Gill v. Evansville Sheet Metal Works, Inc., 940 N.E.2d 328, 330 (Ind.Ct.App.2010). But, unlike the trial court, the panel declined to resolve whether ESMW's work constituted an improvement to real property and held that, “regardless whether there was an improvement to real estate, [Gill] brought her claim outside the ten year period stipulated in the [CSoR] and therefore, her claim is barred.” Id. at 334.

Gill sought, and we granted, transfer, Gill v. Evansville Sheet Metal Works, Inc., 970 N.E.2d 633, 2012 WL 2384095 (Ind.2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

Discussion

We are asked to consider whether summary judgment for ESMW on Gill's negligence claim was proper. In doing so, we face the same issues as the trial court and follow the same process. Owens Corning Fiberglass Corp. v. Cobb, 754 N.E.2d 905, 908 (Ind.2001). The movant bears the initial burden of making a prima facie showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Dreaded, Inc. v. St. Paul Guardian Ins. Co., 904 N.E.2d 1267, 1270 (Ind.2009). Summary judgment is improper if the movant fails to carry this burden. See Klinker v. First Merchants Bank, N.A., 964 N.E.2d 190, 197 (Ind.2012). But if the movant succeeds, then the nonmoving party must come forward with evidence establishing the existence of a genuine issue of material fact. Jarboe v. Landmark Cmty. Newspapers of Ind., Inc., 644 N.E.2d 118, 123 (Ind.1994).

I

Resolution of this appeal hinges on the scope and application of Indiana Code section 32–30–1–5, the CSoR.4 This statute provides a ten-year period after which those involved in certain activities related to the construction of an improvement to real property are immune from claims arising from construction deficiencies. Specifically, the version of the CSoR applicable to this dispute provides as follows:

An action to recover damages, whether based upon contract, tort, nuisance, or another legal remedy, for:

(1) a deficiency or an alleged deficiency in the design, planning, supervision, construction, or observation of construction of an improvement to real property;

(2) an injury to real or personal property arising out of a deficiency; or

(3) an injury or wrongful death of a person arising out of a deficiency;

may not be brought against any person who designs, plans, supervises, or observes the construction of or constructs an improvement to the real property unless the action is commenced within the earlier of ten (10) years after the date of substantial completion of the improvement or twelve (12) years after the completion and submission of plans and specifications to the owner if the action is for a deficiency in the design of the improvement.

Ind.Code § 32–30–1–5 (2004).5

Parsing the statute's plain language indicates that a defendant is entitled to immunity under the statute only if four criteria are established. First, there must have been construction of an “improvement to real property.” Second, the claimant must be seeking damages for a deficiency in the design, planning, supervision, construction, or observation of construction of such improvement or an injury arising therefrom. Cf. South Dearborn Sch. Bldg. Corp. v. Duerstock, 612 N.E.2d 203, 208–09 (Ind.Ct.App.1993) (contractual indemnity claim not barred because damages would be limited to matters such as defending suit and not costs of compensating the injured plaintiff). Third, the defendant must have performed a covered activity, whether it was the designing, planning, supervision, or observation of the improvement's construction or its actual construction.6 Finally, the action must have been commenced more than ten years after the date of “substantial completion” of the improvement.7SeeInd.Code § 32–30–1–4 (2008) (defining “date of substantial completion”). The parties dispute only whether ESMW made a prima facie showing that its work at Alcoa constituted an “improvement to real property.” 8

The meaning of the term “improvement to real property” as used in the CSoR is a matter of first impression for this Court. See Pentony v. Valparaiso Dep't of Parks & Recreation, ––– F.Supp.2d ––––, No. 2:09–CV–363–JVB, 2012 WL 1095220, at *3 (N.D.Ind. Mar.29, 2012) (Van Bokkelen, J.) (“The Court has found no Indiana cases defining the term ‘improvement to real property’ as used in Indiana Code § 32–30–1–5.”). The statute itself does not define the term. When a statute employs a word without defining it, courts generally should apply the word's plain, ordinary, and usual meaning, unless to do so would be contrary to the Legislature's intent; but technical words and phrases should be given their technical legal definitions. SeeInd.Code § 1–1–4–1(1) (2005). Compare Ind. Dep't of State Revenue v. Trump Ind., Inc., 814 N.E.2d 1017, 1021 (Ind.2004) (applying plain and ordinary meaning of “tangible personal property” for purposes of sales and use tax), with George v. Nat'l Collegiate Athletic Ass'n, 945 N.E.2d 150, 156–57 (Ind.2011) (applying well-established legal definition of “lottery” instead of broader common meaning). We first examine the legislative intent underlying the CSoR and then examine various meanings that have been attributed to the term “improvement to real property.”

A

Building statutes of repose similar to the CSoR are commonplace. In point of fact, 47 states and the District of Columbia have adopted special statutes of repose applicable to claims arising from deficiencies in the construction of improvements to real property. See Construction and Design Contracts. 1–3 Construction L. Online (MB) P 3.11 ¶ [2][a] (2012). As a result, the genesis of these statutes has been well-documented.9

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