Harder v. ACandS

• Decision Date: 21 April 1999
• Docket Number: No. 98-3169,98-3169
• Citation: 179 F.3d 609
• Parties: , Marion L. HARDER, Executor of the Estate of Oscar O. Harder; Marion L. Harder, Individually, Plaintiffs-Appellees, v. ACANDS, doing business as AC & S, Inc., a Delaware corporation formerly Armstrong Contracting & Supply, Inc.; Armstrong World Industries, doing business as AC & S, Inc., a Pennsylvania corporation individually and as successor in interest to Armstrong Cork Company, and as successor in interest to Armstrong Contracting & Supply, Inc., now known as Acands, Inc.; Fibreboard, a Delaware corporation, individually and as successor in interest to Fibreboard Paper Products Corp., Pabco Insulation Company, Plant Rubber & Asbestos Works and Plant Asbestos Co.; Flexitallic Gasket Company, Inc., a Delaware Corp.; Foster Wheeler Corporation; Foster Wheeler Corporation, a New York Corporation; Foster Wheeler Corporation, a Delaware Corporation, individually and as a subsidiary of Foster Wheeler Corporation, Defendants, General Electric Co., a New York Corporation, Defendant-Appellant, GAF Corporation, a Delaware Corp., individually and as successor in interest to the Ruberoid Company; AP Green Industries, Inc., a Delaware Corp., Keene Corporation, a Delaware and New York Corp., individually and as successor in interest to Baldwin-Hill Co., Baldwin-Ehret-Hill, Inc., Ehret Magnesia Manufacturing Co., the Insulation division of Mundet Cork Co., and as owner of or successor in interest to Keene Building Products Corp.; Owens-Corning Corporation, a Delaware Corp.; Owens-Illinois, Inc., a Delaware and an Ohio Corp.; United States Gypsum Company, formerly known as AP Green Refractories Company, a Delaware Corporation, individually and as successor in interest to AP Greene Industries, Inc., Defendants, v. Owens-Corning Corporation, Third Party Plaintiff, Manville Corporation Asbestos Disease Compensation Fund, Third Party Defendant. . Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

179 F.3d 609,

Marion L. HARDER, Executor of the Estate of Oscar O. Harder;

Marion L. Harder, Individually, Plaintiffs-Appellees, v. ACANDS, doing business as AC & S, Inc., a Delaware

corporation formerly Armstrong Contracting & Supply, Inc.;

Armstrong World Industries, doing business as AC & S, Inc.,

a Pennsylvania corporation individually and as successor in

interest to Armstrong Cork Company, and as successor in

interest to Armstrong Contracting & Supply, Inc., now known

as Acands, Inc.; Fibreboard, a Delaware corporation,

individually and as successor in interest to Fibreboard

Paper Products Corp., Pabco Insulation Company, Plant Rubber

& Asbestos Works and Plant Asbestos Co.; Flexitallic Gasket

Company, Inc., a Delaware Corp.; Foster Wheeler Corporation;

Foster Wheeler Corporation, a New York Corporation; Foster

Wheeler Corporation, a Delaware Corporation, individually

and as a subsidiary of Foster Wheeler Corporation, Defendants,

General Electric Co., a New York Corporation, Defendant-Appellant,

GAF Corporation, a Delaware Corp., individually and as

successor in interest to the Ruberoid Company; AP Green

Industries, Inc., a Delaware Corp., Keene Corporation, a

Delaware and New York Corp., individually and as successor

in interest to Baldwin-Hill Co., Baldwin-Ehret-Hill, Inc.,

Ehret Magnesia Manufacturing Co., the Insulation division of

Mundet Cork Co., and as owner of or successor in interest to

Keene Building Products Corp.; Owens-Corning Corporation, a

Delaware Corp.; Owens-Illinois, Inc., a Delaware and an Ohio

Corp.; United States Gypsum Company, formerly known as AP

Green Refractories Company, a Delaware Corporation,

individually and as successor in interest to AP Greene

Industries, Inc., Defendants, v. Owens-Corning Corporation, Third Party Plaintiff,

Manville Corporation Asbestos Disease Compensation Fund,

Third Party Defendant.

No. 98-3169.

United States Court of Appeals, Eighth Circuit.

Submitted: April 21, 1999.

Filed: June 9, 1999.

Appeal from the United States District Court for the Northern District of Iowa.

BEFORE: BOWMAN, ^* Chief Judge, FAGG, Circuit Judge, and BOGUE, District Judge.

FAGG, Circuit J.

In this diversity case, we must decide whether Iowa's statute of repose for improvements to real property bars on action for injury allegedly caused by a component of an improvement to real property. We conclude that it does.

As long as seventy years ago, steam turbines manufactured by General Electric Co. (GE) were permanently installed in certain Iowa power plants to generate electricity. The one-hundred-ton turbines are sunk in concrete foundations and connected to other power equipment with miles of complex piping and wiring. As components of each steam turbine, GE custom-made nearly one hundred specially fit thermal asbestos insulation blankets, which are hooked between the turbine's interior and exterior steel casings with steel fasteners and are numbered to designate their specific placement. The blankets maximize energy efficiency and prevent utility workers from burning themselves on the turbines. Oscar O. Harder, a general maintenance worker at the plants from 1956 through 1989, overhauled the GE steam turbines as part of his regular duties. During the overhauls, which were done about every five years, Harder removed the asbestos insulation blankets to aid inspection and servicing of the turbine's internal components. See GE app. at 46, 54 (GE Exhibit in Support of Summary Judgment Motion, Deposition of Oscar Harder). Once removed, the blankets were stored on the turbine room floor and were not handled again until Harder put the blankets back on the turbines following the overhauls' completion. See id.

In 1993, Harder learned he had mesothelioma, a deadly asbestos-related cancer. The same year, he and his wife Marion L. Harder brought this action against GE and others alleging Harder's on-the-job exposure to asbestos caused his disease. Harder later died and his wife was substituted as the proper party to pursue her husband's claims. See Fed.R.Civ.P. 25(a). GE moved for summary judgment asserting Iowa's fifteen-year statute of repose for improvements to real property bars the claims against GE because the turbines and blankets were installed more than fifteen years before the Harders filed their lawsuit. The district court denied the motion. Stating the blankets were detached from the turbines at the time of Harder's exposure, the district court held the detached blankets could not be deemed improvements to real property under Iowa law. See Harder v. Acands, Inc., 11 F.Supp.2d 1055, 1062-65 (N.D.Iowa 1998). The district court nevertheless recognized its ruling involved a controlling question of law on which there are substantial grounds for differing opinions, and stated an immediate appeal might materially advance the ultimate termination of the case. We thus exercised our discretion to permit an interlocutory appeal under 28 U.S.C. § 1292(b), and now reverse.

We review a denial of summary judgment de novo. See Mueller v. Tinkham, 162 F.3d 999, 1002 (8th Cir.1998). Summary judgment is appropriate if the evidence, viewed in Harder's favor, shows there is no genuine issue of material fact and GE is entitled to judgment as a matter of law. See First Bank of Marietta v. Hogge, 161 F.3d 506, 510 (8th Cir.1998). We apply Iowa law in this diversity action, and decide the case as we believe the Iowa Supreme Court would. See id. Contrary to Harder's assertion, we give no deference to the district court's interpretation of state law. See Salve Regina College v. Russell, 499 U.S. 225, 239-40 (1991); Hogge, 161 F.3d at 510.

GE asserts Iowa's statute of repose for improvements to real property, Iowa Code § 614.1(11), bars Harder's action. The statute provides that "an action arising out of the unsafe or defective condition of an improvement to real property based on tort and implied warranty ... and founded on ... injury to the person or wrongful death, shall not be brought more than fifteen years after [the allegedly harmful] act or omission." According to the Iowa Supreme Court, fifteen years after an improvement to real property is made, certain claims arising from the improvement are extinguished, regardless of whether there has been an injury yet. See Krull v. Thermogas Co., 522 N.W.2d 607, 611 (Iowa 1994); Bob McKiness Excavating & Grading, Inc. v. Morton Buildings, Inc., 507 N.W.2d 405, 408 (Iowa 1993). GE contends the steam engines and their component insulation blankets are improvements to real property under Iowa's statute, and because the turbines and blankets were installed more than fifteen years before commencement of this action, Harder's claims are barred.

The Iowa Supreme Court has defined "improvement" for the purposes of § 614.1(11) as " 'a permanent addition to or betterment of real property...