Holmes v. ACandS, Inc.

• Decision Date: 26 April 1999
• Docket Number: No. 49A02-9712-CV-846,49A02-9712-CV-846
• Citation: 709 N.E.2d 36
• Parties: Prod.Liab.Rep. (CCH) P 15,513 Ivay O. HOLMES, Individaully and as Personal Representative of the Estate of Henry Holmes, Appellant-Plaintiff, v. ACANDS, INC.; Atlas Turner, Inc.; A.W. Chesterton Co.; Flintkote Co.; Foster Wheeler Corp.; Metropolitan Life Ins. Co.; Owens Corning Fiberglas; Owens-Illinois, Inc.; PPG Ind., Inc.; Pittsburgh Corning Corp.; Rapid-American Corp.; Vimasco Corp., Appellee-Defendants.
• Court: Indiana Appellate Court

Page 36

709 N.E.2d 36

Prod.Liab.Rep. (CCH) P 15,513

Ivay O. HOLMES, Individaully and as Personal Representative of the Estate of Henry Holmes, Appellant-Plaintiff, v. ACANDS, INC.; Atlas Turner, Inc.; A.W. Chesterton Co. Flintkote Co.; Foster Wheeler Corp.; Metropolitan Life Ins. Co.; Owens Corning Fiberglas; Owens-Illinois, Inc. PPG Ind., Inc.; Pittsburgh Corning Corp.; Rapid-American Corp.; Vimasco Corp., Appellee-Defendants.

No. 49A02-9712-CV-846.

Court of Appeals of Indiana.

April 26, 1999.

Linda George, W. Russell Sipes, Laudig, George, Rutherford & Sipes, Indianapolis, Indiana, Attorneys for Appellant.

Douglas B. King, Joseph R. Alberts, Wooden & McLaughlin, Indianapolis, Indiana, Knight S. Anderson, Hill Fulwider McDowell Funk & Matthews, Indianapolis, Indiana, George T. Patton, Jr., Bose McKinney & Evans, Indianapolis, Indiana, Karl L. Mulvaney, Bingham Summers Welsh & Spilman, Indianapolis, Indiana, Susan E. Mehringer, Andrea L. Cohen, Lewis & Wagner, Indianapolis, Indiana, Cynthia M. Locke, White & Raub, Indianapolis, Indiana, Jon L. Williams, Indianapolis, Indiana, Robert A. Kezelis, French Kezelis & Kominiarek, Chicago, Illinois, Attorneys for Appellee.

OPINION

ROBB, Judge

Case Summary

Appellant-Plaintiff, Ivay Holmes ("Holmes"), appeals the trial court's grant of summary judgment in favor of Appellees-Defendants, Rapid-American Corp. and Owens-Corning Fiberglas Corp., the trial court's dismissal with prejudice and entry of final judgment in favor of Appellees-Defendants, A.W. Chesterton Co., Vimasco Corp., and PPG Industries, Inc., and the trial court's grant of summary judgment as to remaining Appellees-Defendants, ACandS, Inc., Atlas Turner, Inc., The Flintkote Co., Foster Wheeler Corp., Metropolitan Life Insurance Co., Owens-Illinois, Inc. Pittsburgh Corning Corp., "and any and all other Defendants." ¹ R. 415.012. We reverse.

Issue

Holmes raises one issue for our review which we restate as: whether a wrongful death action brought less than two years after the decedent's death, but more than two years after the decedent's asbestos-related injury was diagnosed, is barred.

Facts and Procedural History

The facts most favorable to the judgment show that Holmes's husband, Henry Holmes, was diagnosed with lung cancer caused by exposure to asbestos on or about June 20, 1994. Henry died on July 22, 1994. Holmes, individually and as personal representative of Henry's estate, filed a wrongful death claim on July 22, 1996, based upon negligence, strict product liability, and premises liability. The complaint named several manufacturers/distributors of asbestos-containing products with which Henry had allegedly worked during his lifetime.

Following a hearing, the trial court granted summary judgment in favor of certain defendants and dismissed with prejudice the remaining defendants.

Discussion and Decision

We review the trial court's decision granting summary judgment to determine whether the trial court correctly concluded that "there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law." Ind. Trial Rule 56(C); Orr v. Westminster Village North, Inc., 689 N.E.2d 712, 717 (Ind.1997). The party appealing the trial court's grant or denial of summary judgment has the burden of persuading this court that the trial court's decision was erroneous. North Snow Bay, Inc. v. Hamilton, 657 N.E.2d 420, 422 (Ind.Ct.App.1995). A grant of summary judgment may be affirmed upon any theory which the designated materials support, and we are not limited to reviewing the trial court's reasons for granting summary judgment. Roessler v. Milburn, 692 N.E.2d 1377, 1378 (Ind.Ct.App.1998) (citation omitted). Our standard on review of legal determinations is the same for dismissal as it is for summary judgment. See Indiana & Michigan Elec. Co. v. Terre Haute Industries, Inc., 467 N.E.2d 37, 43 (Ind.Ct.App.1984).

Holmes argues that Henry's death is a separate injury from his cancer and as such is not barred by the two year statute of limitations regarding personal injury claims. She contends that the date of diagnosis of Henry's cancer has no bearing upon her wrongful death claim. The Asbestos Defendants contend that Holmes's wrongful death action is barred because a personal injury action based on the same acts would have been barred at the time it was filed by Holmes.

In Indiana it is well established that the right to maintain an action for wrongful death is purely statutory and did not exist at common law. General Motors Corp. v. Arnett, 418 N.E.2d 546, 548 (Ind.Ct.App.1981). The purpose of the statute is not to compensate for the injury to the decedent, but rather to create a cause of action to provide a means by which the decedent's survivors may be compensated for the loss sustained by reason of such death. Fisk v. United States, 657 F.2d 167, 170 (7th Cir.1981). Because the wrongful death claim is designed to compensate for the loss to the survivors caused by the decedent's death, and not the underlying injury, the survivor's claim is independent and not derivative: "the action derives from the tortious act and not from the person of the deceased." Id. (quoting In re Estate of Pickens v. Pickens, 255 Ind. 119, 263 N.E.2d 151, 156 (1970)). Thus the statute creates a new and independent cause of action for wrongful death. Id.

The Indiana Wrongful Death Statute provides:

When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission.... [T]he action shall be commenced by the personal representative of the decedent within two (2) years.

Ind.Code § 34-1-1-2 (repealed and recodified as Ind.Code § 34-23-1-1). Since this right in Indiana is purely statutory, the two year time period within which an action must be commenced is a "condition attached to the right to sue." General Motors, 418 N.E.2d at 548 (quoting Bocek v. Inter-Insurance Exchange of Chicago Motor Club, 175 Ind.App. 69, 369 N.E.2d 1093, 1097 (1977)). This two year time period is not a statute of limitation but a condition precedent to the existence of the claim. Id. The wrongful death cause of action accrues when the injured person dies. Louisville, E. & St. L. R Co. v. Clarke, 152 U.S. 230, 237, 14 S.Ct. 579, 580, 38 L.Ed. 422 (1894) (applying Indiana law).

When the meaning of a statute is plain and unambiguous, there is no room for judicial construction. Community Hosp. v. McKnight, 493 N.E.2d 775, 777 (Ind.1986). Words and phrases shall be taken in their plain, or ordinary and usual, sense. Ind.Code § 1-1-4-1. When the legislature enacts a statute, we presume it is aware of existing statutes in the same area. Town of Merrillville v. Merrillville Conservancy Dist. By and Through Bd. of Directors, 649 N.E.2d 645, 649 (Ind.Ct.App.1995), trans. denied. Statutes relating to the same general subject matter are in pari materia and should be construed together so as to produce a harmonious statutory scheme. Indiana Payphone Ass'n, Inc. v. Indiana Bell Telephone Co., Inc., 690 N.E.2d 1195, 1199 (Ind.Ct.App.1997), trans. denied. However, the rule of construction requiring statutes in pari materia to be construed together is only to be applied as an aid in determining the meaning of a doubtful statute; it cannot be invoked where the language of the statute is plain and unambiguous. McKnight, 493 N.E.2d at 777.

However, where a statute is susceptible to more than one interpretation, it is ambiguous, and the reviewing court must ascertain the intent of the legislative body and interpret the statute to effectuate that intent. Ad Craft, Inc. v. Board of Zoning Appeals of Evansville, 693 N.E.2d 110, 114 (Ind.Ct.App.1998), trans. denied. Further, we presume that our legislature intended its language to be applied in a logical manner consistent with the statute's underlying policy and goals. Citizens Action Coalition of Indiana, Inc. v. Indiana Statewide Ass'n of Rural Elec. Cooperatives, Inc., 693 N.E.2d 1324, 1327 (Ind.Ct.App.1998). Where statutory provisions are in conflict, no part of a statute should be rendered meaningless but should be reconciled with the rest of the statute. Robinson v. Wroblewski, 704 N.E.2d 467, 474 (Ind.1998). In construing a statute, we will presume that the legislators did not enact a useless provision. Id. at 475.

Initially, we observe that if Holmes had brought the wrongful death action more than two years following Henry's death, it would be barred by Ind.Code § 34-23-1-1 regardless of when Henry had discovered the injury. Also, Holmes would be precluded from bringing this action had Henry, "in his lifetime, sued and recovered full compensation for the injuries inflicted." Clarke, 152 U.S. at 237, 14 S.Ct. at 580.

We express no opinion regarding whether Holmes's action would be barred if more than two years had transpired between his discovery of the injury and his death. See N.O. Nelson Mfg. Corp. v. Dickson, 114 Ind.App. 668, 53 N.E.2d 640 (1944) (holding that wrongful death action can be maintained where decedent's cause of action for the injury which caused the death was barred by the statute of limitations prior to his death); Wilson v. Jackson Hill Coal & Coke Co., 48 Ind.App. 150, 95 N.E. 589 (1911) (holding that wrongful death action was not barred by statute of limitations operating against decedent in his lifetime where decedent lived more than two years after being injured). Regarding the condition that the decedent be entitled to maintain the action had he lived, the Wilson court stated that the requirement "plainly relates to the character of the injury without regard to the question of the time of suit or death." Id. (quoting Hoover's Adm'x v. C. & O. Ry. Co., 46 W.Va. 268, 33 S.E. 224 (1899)). See also Cla...