Gorman-Rupp Co. v. Hall

• Decision Date: 11 August 2005
• Docket Number: No. 2004-IA-01021-SCT.,2004-IA-01021-SCT.
• Parties: GORMAN-RUPP COMPANY v. Bobby G. HALL, et al.
• Court: Mississippi Supreme Court

908 So.2d 749

GORMAN-RUPP COMPANY v. Bobby G. HALL, et al.

No. 2004-IA-01021-SCT.

Supreme Court of Mississippi.

August 11, 2005.

Jennifer Marie Studebaker, Thomas W. Tardy, III, T. Hunt Cole, Jr., Jackson, attorneys for appellant.

Stacey L. Sims, Anthony Sakalarios, Hattiesburg, Alison Ann Darsey, attorneys for appellees.

EN BANC.

EASLEY, Justice, for the Court.

¶ 1. This asbestos case is before the Court on interlocutory appeal. The Gorman-Rupp Company (Gorman) filed the petition for interlocutory appeal challenging the trial court's order denying its motion for summary judgment and its subsequent motion for reconsideration of the motion for summary judgment.¹ The complaint filed on October 10, 2002, in the Circuit Court of Adams County, Mississippi, alleged personal injuries related from exposure to asbestos products.

¶ 2. Seven plaintiffs were named in the complaint, Bobby G. Hall, Thurman Ferguson, Delano Reeves, Israel Stewart, Jr., Wilbert White, Aubrey Arnold, and James Hemphill. Despite having various employments over their work histories, each of the plaintiffs shared a common work site, International Paper (IP), located in Natchez, Mississippi.

¶ 3. Two hundred and seventy-four (274) companies and corporate defendants were named in the complaint, as well as, John Does 1-100 (all unidentified manufacturers, suppliers, distributors and installers of asbestos-containing products) and 101-200 (all unidentified associations and organizations which conspired with the manufacturers, suppliers, distributors and installers of asbestos-containing products). Gorman, a pump manufacturer, was one of the named defendants, and its answer to the complaint was filed on March 13, 2003. On March 1, 2004, Gorman filed its motion for summary judgment as to all seven plaintiff's claims. The trial court heard the motion for summary judgment granting it in part finding no evidence of conspiracy as to Gorman. Also, on March 16, 2004, the Plaintiffs' attorney agreed to dismiss Wilbert White and Israel Stewart as plaintiffs as to Gorman. The trial court denied the remainder of the motion for summary judgment.

¶ 4. On May 13, 2004, the claims of each plaintiff was severed by the trial court, and Hall's claim was set for trial on June 1, 2004. The other four plaintiffs' cases were continued until further order of the court. Gorman filed a motion for reconsideration of the denial as to Hall which was denied by the trial court on May 19, 2004. Gorman sought leave to file an interlocutory appeal from the trial court. The trial court denied the request.

¶ 5. Gorman sought permission for interlocutory appeal to this Court (1) alleging improper use of unauthenticated documents by Hall and (2) seeking adoption by this Court of the "frequency, regularity, proximity" standard in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir.1986), in the context of summary judgment for asbestos cases. Gorman also contends that Hall did not establish that any Gorman pump used at IP in Natchez contained any asbestos. On May 27, 2004, this Court granted the Gorman's extraordinary petition for interlocutory appeal. See M.R.A.P. 5. Due to the interlocutory appeal, the trial as to Gorman was stayed, however, Hall went to trial as to the remaining defendants. Finding error by the trial court, we reverse and render.

FACTS

¶ 6. Seven plaintiffs filed suit in Adams County, Mississippi, against some two hundred and seventy-four specifically named defendants, alleging exposure to asbestos while employed at various work sites, including IP. Gorman was one of the named defendants. During discovery, the plaintiffs responded to the defendants' master set of interrogatories and requests for production of documents.

¶ 7. Hall did not specifically identify any asbestos-containing products for which Gorman might have potential liability and produced no documents related to Gorman's products. The response provided by Gorman only listed a generic list of products within IP without naming the manufacturers of the products. All seven plaintiffs were deposed. In Hall's deposition, he testified that IP had Gorman "sump pumps, thrash pumps, sewage pumps." Hall stated:

[Y]ou had a Gorman[-]Rupp, which was a sump pump, which is nothing but a sewer pump. And it's [sic] collected and put it back into your sewer system so you can send it back to waste treatment or whatever sewer outlet you had to take up. But we had two of those mounted on the south side of the—in the machine room.

In the excerpt from Hall's deposition, provided by both parties in the record excerpts, Hall did not state that the Gorman pumps contained asbestos. Furthermore, in his deposition Hemphill testified that he did not have any knowledge of the Gorman pumps containing asbestos.

¶ 8. During discovery, the Plaintiffs sent the Defendants over 70,000 documents that were produced by IP in Natchez in the unrelated asbestos case, In Re: Asbestos Personal Injury Cases, Aldridge Lead No. 7419-J, et al., in the Circuit Court of Adams County, Mississippi.² The Plaintiffs attempted to authenticate the documents by filing a motion to authenticate the documents. At a hearing held on April 15, 2004, the trial court denied the Plaintiffs' request to authenticate the documents. The trial court found that the documents would have to be authenticated for use at trial. Gorman argues that the documents were never authenticated for use in the summary judgment proceedings as required by M.R.C.P. 56(c) and M.R.E. 901.

¶ 9. Gorman also asserts that the documents do not show that any Gorman asbestos-containing products were in IP in Natchez. The only document that references Gorman is a letter dated November 11, 1983, from J.H. Wright and Associates that references IP's recent purchase order of a Gorman pump attaching a listing of recommended spare parts. Gorman contends that the letter is not admissible as it was never authenticated.

¶ 10. The Plaintiffs rely heavily on Gorman's response to the Plaintiffs' request for admissions to prove that Gorman had asbestos-containing products in IP. In their response to request number 1, Gorman stated:

Request No. 1: Admit that you are/were a miner, miller, manufacturer, labeler, labelee, rebrander, rebrandee, seller, supplier, distributor, licensee, or licensor of ACP(s).

Response: Denied. Refer to Interrogatory Number 2. The text of Interrogatory Number 2 is as follows: Gorman-Rupp refers to its Preliminary Statement and further objects to this Interrogatory on the grounds that it is overly broad, unduly burdensome, compound, vague and ambiguous. Subject to and without waiver of the foregoing objections, Gorman-Rupp did not rebrand its pumps, as it understands the term. Some pumps may have incorporated asbestos-containing gaskets and/or packing purchased by Gorman-Rupp from vendors who primarily furnished materials from the following manufacturers: Anchor Target, Armstrong, Garlock, Vellumoid, John Crane, Durametallic and A Best Products Co. The particular Gorman-Rupp pumps with asbestos-containing packing and/or gaskets were offered until approximately 1985 or 1986.

(emphasis added).

¶ 11. Gorman contends that it admitted that some pumps manufactured out of the scores of models it manufactured incorporated asbestos-containing components. However, it did not state that any Gorman pump in IP contained asbestos. Gorman did not identify any pumps with asbestos-containing components being sold or supplied to IP. In its response to request for admission number 2, Gorman stated:

Request No. 2: Admit that you sold, supplied, or distributed your ACP to International Paper.

Response: Neither admits nor denies—Refer to Answer to Interrogatory Number 3. The text of Interrogatory Number 3 is as follows: Gorman-Rupp's available records do not allow it to search for and identify the sale of pumps to specific work sites.

(emphasis added). Gorman argues that after discovery the Plaintiff did not demonstrate that in fact a Gorman asbestos-containing model was present at the IP site and caused the injury.

DISCUSSION

¶ 12. This Court applies a de novo standard of review on appeal from a denial of summary judgment by the trial court. Saucier ex rel. Saucier v. Biloxi Reg'l Med. Ctr., 708 So.2d 1351, 1354 (Miss.1998). See also Jenkins v. Ohio Cas. Ins. Co., 794 So.2d 228, 232 (Miss.2001)

; Russell v. Orr, 700 So.2d 619, 622 (Miss.1997); Richmond v. Benchmark Constr. Corp., 692 So.2d 60, 61 (Miss.1997); Northern Elec. Co. v. Phillips, 660 So.2d 1278, 1281 (Miss.1995).

¶ 13. Rule 56(c) of the Mississippi Rules of Civil Procedure provides that summary judgment shall be granted by a court if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact . . .". M.R.C.P. 56(c); see Saucier, 708 So.2d at 1354

. The moving party has the burden of demonstrating that there is no genuine issue of material fact in existence, while the non-moving party should be given the benefit of every reasonable doubt. Tucker v. Hinds County, 558 So.2d 869, 872 (Miss.1990). See also Heigle v. Heigle, 771 So.2d 341, 345 (Miss.2000). A fact is material if it "tends to resolve any of the issues properly raised by the parties." Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So.2d 790, 794 (Miss.1995).

¶ 14. "If, in this view, there is no genuine issue of material fact and, the moving party is entitled to judgment as a matter of law, summary judgment should forthwith be entered in his favor. Otherwise, the motion should be denied." Williamson ex rel. Williamson v. Keith, 786 So.2d 390, 393 (Miss.2001). "Issues of fact sufficient to require denial of a motion for summary judgment obviously are present where one party swears to one version of the matter in issue and another says the opposite." Tucker, 558 So.2d at 872.

Of importance here is the language of the rule authorizing summary

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