Harder v. Acands, Inc.
| Decision Date | 16 July 1998 |
| Docket Number | No. C93-4070-MWB.,C93-4070-MWB. |
| Parties | Marion L. HARDER, Executor of the Estate of Oscar O. Harder, and Marion L. Harder, Individually, Plaintiffs, v. ACANDS, INC., Armstrong World Industries, Inc., Fibreboard Corporation, Flexitallic Gasket Company, Inc., Foster Wheeler Corporation, Foster Wheeler Energy Corporation, General Electric Company, GAF Corporation, A.P. Green Industries, Inc., Keene Corporation, Owens Corning Fiberglas Corp., Owens Illinois, Inc., and U.S. Gypsum Company, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Michael J. Galligan, Richard H. Doyle, Galligan, Tully, Doyle & Reid, P.C., Des Moines, IA, for Plaintiffs.
Richard J. Sapp, Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., Des Moines, IA, for Defendants.
AMENDED AND SUBSTITUTED MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT GENERAL ELECTRIC COMPANY'S MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ............................................. 1056
A. Procedural Background ................................................ 1056
B. Factual Background ................................................... 1057
II. LEGAL ANALYSIS .......................................................... 1057
A. Standards For Summary Judgment ....................................... 1057
B. The Statute Of Repose ................................................ 1058
1. Improvements to real property ..................................... 1059
2. Are the turbines improvements to real property? ................... 1061
3. Are the insulation blankets improvements to real property? ........ 1062
4. Remaining Challenges .............................................. 1065
III. CONCLUSION .............................................................. 1065
Under Iowa's statute of repose, do products that have previously been attached to property constitute "improvements to real property" when, at the time of the alleged injurious exposure, the products are in an unattached state? The defendant manufacturer contends that they do, and therefore asserts that the plaintiff's claims of injury from exposure to asbestos insulation blankets, temporarily removed from steam turbines during maintenance, are barred by 614.1(11). The plaintiff disagrees and argues that because the products were unattached at the time of exposure, they cannot be deemed improvements to real property within the meaning of the statute. Although the Iowa Supreme Court has not been confronted with the exact factual scenario presented here, the court finds that the defendant's motion may be resolved by application of the principles set forth in the cases that have addressed the definition of "improvement to real property" and the requirements of IOWA CODE § 614.1(11).1
This products liability lawsuit has traveled a lengthy and complex procedural route. Rather than attempt an exhaustive recitation of these procedural matters, the court will set forth highlights relevant to the pending motion.
On August 2, 1993, plaintiffs Oscar and Marion Harder filed this diversity action against numerous manufacturers, processors, distributors, and sellers of asbestos and asbestos-containing products.2 In their complaint, the Harders allege that on-the-job exposure to various asbestos products caused Oscar to develop mesothelioma — a terminal, asbestos-related cancer. They assert claims of negligence, strict liability, breach of warranty, and misrepresentation against each of the defendants.
On January 11, 1994, defendant General Electric Company ("GE") filed its answer, generally denying the allegations in the complaint and asserting a variety of defenses. On April 1, 1998, GE filed this motion for summary judgment on the ground that Harder's claims against it are barred by the fifteen-year statute of repose set forth in Iowa Code § 614.1(11). Harder resisted GE's motion on April 27, 1998.
The court heard oral arguments on GE's motion for summary judgment on June 18, 1998, at the Federal Courthouse in Des Moines, Iowa. Harder was represented by counsel Michael J. Galligan and Richard Doyle of Galligan, Tully, Doyle & Reid, P.C., Des Moines, Iowa. GE was represented by counsel Richard J. Sapp of Nyemaster, Goode, Voigts, West, Hansell & O'Brien, P.C., Des Moines, Iowa.3
The parties agree that for purposes of GE's motion for summary judgment, the following factual background is undisputed. From 1956 until his retirement in 1989, Oscar Harder was employed as a utility worker for Iowa Public Service ("IPS").4 During the course of his employment with IPS, Oscar performed general maintenance duties at several power plants, including the IPS Big Sioux Power Plant, Kirk Station, Port Neal Station, Maynard Station, and the Port Neal North facility.
One of Oscar's maintenance duties involved overhauling GE steam turbines at the power plants. These overhauls — or "maintenance outages" — took approximately four weeks to complete. The first day or two of the overhaul was devoted to removing thermal asbestos insulation blankets from underneath the turbine's exterior steel casing in order to facilitate inspection and servicing of the turbine's internal components. The thermal insulation blankets measured four feet by six feet, and were three to four inches thick. Each turbine contained approximately seventy-five to one hundred blankets. GE customized and supplied the blankets as components of its steam turbines. The thermal insulation blankets were custom fabricated for each turbine. The purpose of the blankets was two-fold: to maximize energy efficiency and to prevent utility workers from sustaining burns should they come into contact with the turbine. Once the blankets were removed to conduct maintenance on the turbines, they were stored on the turbine room floor for the remainder of the overhaul. When the overhaul was complete, the blankets were reinstalled. Oscar breathed asbestos dust after the blankets were removed and again when he cleaned up the area where the blankets had been stored during the maintenance period.
Oscar was diagnosed with malignant mesothelioma on April 26, 1993. He died less than a year later, on January 26, 1994. Harder's complaint against GE was filed more than fifteen years after the installation of the turbines containing the thermal insulation blankets.
This court has considered in some detail the standards applicable to motions for summary judgment pursuant to FED.R.CIV.P. 56 in a number of recent decisions. See, e.g., Swanson v. Van Otterloo, 993 F.Supp. 1224, 1230-1232 (N.D.Iowa 1998); Dirks v. J.C. Robinson Seed Co., 980 F.Supp. 1303, 1305-07 (N.D.Iowa 1997); Laird v. Stilwill, 969 F.Supp. 1167, 1172-74 (N.D.Iowa 1997); Rural Water Sys. # 1 v. City of Sioux Center, 967 F.Supp. 1483, 1499-1501 (N.D.Iowa 1997); Tralon Corp. v. Cedarapids, Inc., 966 F.Supp. 812, 817-18 (N.D.Iowa 1997); Security State Bank v. Firstar Bank Milwaukee, N.A., 965 F.Supp. 1237, 1239-40 (N.D.Iowa 1997); Lockhart v. Cedar Rapids Community Sch. Dist., 963 F.Supp. 805 (N.D.Iowa 1997). Thus, the court will not consider those standards in detail here. Suffice it to say that Rule 56 itself provides, in pertinent part, as follows:
Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted may, at any time, move for summary judgment in the party's favor as to all or any part thereof.
(c) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge's function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial. Quick v. Donaldson Co., 90 F.3d 1372, 1376-77 (8th Cir.1996); Johnson v. Enron Corp., 906 F.2d 1234, 1237 (8th Cir.1990). An issue of material fact is genuine if it has a real basis in the record. Hartnagel v. Norman, 953 F.2d 394 (8th Cir.1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). As to whether a factual dispute is "material," the Supreme Court has explained, "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Beyerbach v. Sears, 49 F.3d 1324, 1326 (8th Cir.1995); Hartnagel, 953 F.2d at 394.
Furthermore, "[w]here the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate." Mansker v. TMG Life Ins. Co., 54 F.3d 1322, 1326 (8th Cir.1995) (citing Crain v. Board of Police Comm'rs, 920 F.2d 1402, 1405-06 (8th Cir.1990)); Mumford v. Godfried, 52 F.3d 756, 759 (8th Cir.1995) (). Thus, because the issues before the court are essentially legal, summary disposition may be particularly appropriate in this case. See Mansker, 54 F.3d at 1326.
As indicated previously, GE moves the court for summary judgment on the ground that Harder's action against it is barred by IOWA CODE § 614.1(11).5 Section 614.1(11), one of Iowa's statutes of repose, provides as follows:
Improvements to real property. In addition to limitations contained elsewhere in this section,...
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