JM Foster, Inc. v. Spriggs

• Decision Date: 05 June 2003
• Docket Number: No. 49A05-0111-CV-508.,49A05-0111-CV-508.
• Citation: 789 N.E.2d 526
• Parties: J.M. FOSTER, INC.; Morrison Construction Company, Inc.; and Chicago Bridge & Iron Company, Appellants-Defendants, v. Carol Lou SPRIGGS, Administratrix of the Estate of Charles R. Spriggs, Deceased, and widow in her own right, Appellee-Plaintiff.
• Court: Indiana Appellate Court

789 N.E.2d 526

J.M. FOSTER, INC.; Morrison Construction Company, Inc.; and Chicago Bridge & Iron Company, Appellants-Defendants, v. Carol Lou SPRIGGS, Administratrix of the Estate of Charles R. Spriggs, Deceased, and widow in her own right, Appellee-Plaintiff.

No. 49A05-0111-CV-508.

Court of Appeals of Indiana.

June 5, 2003.

Douglas B. King, Robert J. Orelup, Wooden & McLaughlin, Indianapolis, IN, Attorneys for Appellants.

Robert E. Paul, Paul, Reich & Myers, P.C., Philadelphia, PA, Mark Dudley, Young, Riley, Dudley & DeBrota, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATTINGLY-MAY, Judge.

Carol Lou Spriggs ("Plaintiff"), as widow of Charles R. Spriggs ("Spriggs") and administratrix of his estate, brought a wrongful death lawsuit against sixty defendants including J.M. Foster, Inc. ("Foster"), Morrison Construction Company, Inc. ("Morrison"), and Chicago Bridge and Iron Company ("CBI") (collectively, "the Contractors"). Plaintiff alleges Spriggs died as a result of exposure to asbestos-containing products the Contractors installed or removed.

The Contractors moved for summary judgment on the grounds that 1) there was no factual issue that the Contractors did not proximately cause Spriggs' injuries; 2) Plaintiff's claims are barred by the construction statute of repose; and 3) the Indiana Product Liability Act and its statute of limitations for asbestos actions do not apply to the Contractors. The trial court denied the summary judgment motions and the Contractors appeal.¹ We reverse.²

FACTS

Spriggs worked as a pipefitter at various sites in Northwest Indiana beginning in 1963. He was allegedly exposed to asbestos at a number of those jobsites. He contracted lung cancer, allegedly as a result of his inhalation of asbestos, and died of the disease on July 1, 1998.

Foster and Morrison are industrial mechanical contractors. CBI is an industrial engineering and construction company. None has ever manufactured or sold asbestos or any products that contain asbestos. However, Plaintiff contends Spriggs was exposed to asbestos-containing products the Contractors installed or removed. At least ten years has passed since the Contractors completed their work at any of the sites where Spriggs might have been exposed to asbestos.

STANDARD OF REVIEW

Our appellate standard of review for summary judgment rulings is well established. As a reviewing court, we are bound by the same standard as the trial court. Horace Mann Ins. Co. v. Richards, 696 N.E.2d 65, 67 (Ind.Ct.App.1998). Summary judgment is warranted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id.; Ind. Trial Rule 56(C). Just as the trial court, we may consider only those parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and other matters that have been designated by the parties to the trial court for consideration. Id. Any doubt about the existence of a fact or the inference to be drawn from it is to be resolved in favor of the non-moving party. Id.

THE CONSTRUCTION STATUTE OF REPOSE

The Contractors argue the Indiana construction statute of repose bars Plaintiff's action, as any work the Contractors performed that might have exposed Spriggs to asbestos was completed at least ten years before Plaintiff brought her complaint.

We address initially Plaintiff's argument, relying on Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind.1989), that "[a]ny statute of repose violates the constitutional rights of asbestos victims and must be overturned." (Br. of Appellee, Carol Lou Spriggs at 20) (hereinafter "Spriggs Br.").

In Covalt, our supreme court addressed the following certified question concerning the predecessor statute to the current general products liability two year statute of limitations and ten year statute of repose: "Whether a plaintiff may bring suit within two years after discovering a disease and its cause, notwithstanding that the discovery was made more than ten years after the last exposure to the product that caused the disease." 543 N.E.2d at 384. The court answered the certified question in the affirmative, holding that the statute of repose was "inapplicable to cases involving protracted exposure to an inherently dangerous foreign substance which is visited into the body." Id. at 385.

The Covalt court noted that "one can be injured from prolonged exposure to newly milled and manufactured asbestos" (i.e., asbestos directly from the mine) "just as readily as asbestos which has been on the market for ten (10) years or more" (i.e., asbestos provided by a seller). For that reason, no purpose is served in legally distinguishing the two. Id. The court went on to note that in addressing the statute of repose, "we are not concerned here with the introduction of a product into the marketplace. Here we are concerned with exposure to a hazardous foreign substance which causes disease." Id. at 386.

Plaintiff characterizes Covalt as holding "statutes of repose or limitations do not apply in asbestos cases." (Spriggs Br. at 19.)³ The page of Covalt to which Plaintiff directs us contains no such broad statement, although the Covalt court did state:

We cannot say that the Legislature intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance... the primary purpose of statutes of repose, that of recognizing the improvements of product design and safety that come with time, is not served in cases involving asbestos and its related diseases.

543 N.E.2d at 386. However, the court noted its holding was "limited to the precise factual pattern presented and does not apply to worker's occupational disease compensation actions. This opinion is accordingly limited to product liability actions in which the theory of liability is negligence or strict liability in tort." Id. at 387 (emphasis in original).

Covalt appears to have been further limited, and has in fact been overruled to an extent,⁴ by AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind.2003). The Ott decision does not address the construction statute of repose, but does strictly limit the class of defendants subject to that section of the products liability statute of repose for asbestos-related actions.⁵

We must accordingly decline Plaintiff's invitation to hold that "any statute of repose violates the constitutional rights of asbestos victims," and we find the construction statute of repose bars the Plaintiff's action.

The construction statute of repose, Ind. Code § 32-15-1-2⁶ states in pertinent part:

No action to recover damages whether based upon contract, tort, nuisance, or otherwise, for:

(1) any deficiency, or alleged deficiency, in the design, planning, supervision, construction, or observation of construction of an improvement to real property (2) an injury to property, either real or personal, arising out of any deficiency; or

(3) injury to the person, or for wrongful death, arising out of any such deficiency;

shall be brought against any person who designs, plans, supervises, or observes the construction of, or constructs an improvement to real property, unless the action is commenced within the earlier of ten (10) years from 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 deficiency in design.

There appears to be no dispute that the Contractors' work was substantially completed more than ten years before Plaintiff filed her complaint. The complaint includes allegations that Foster and Morrison "installed and removed asbestos near the injured person. The activities of said defendant's employees caused the injured person to inhale asbestos and to suffer the injuries complained of herein." (App. at 160, 163.) It alleges CBI "sold asbestos pipecovering and/or insulation to which [Spriggs] was exposed," (id. at 156), but Plaintiff indicated in answering an interrogatory that CBI "installed asbestos." (Id. at 377.)

Our courts have not yet addressed whether this statute may be applied to bar an action for an asbestos-related injury. However, there are a number of decisions from other jurisdictions where similar statutes have been applied to claims brought against installers whose activities exposed workers to asbestos. These decisions uniformly hold the statute protects such installers.

Typical of these decisions is Abbott v. John Green Co., 233 Mich.App. 194, 592 N.W.2d 96 (1998), where the court reversed the denial of the contractor-defendants' motions for summary judgment. The defendants were contractors who had installed asbestos-containing materials in a foundry some 18 years before the lawsuit was brought. The plaintiffs alleged they were injured by exposure to asbestos when the contractors' activity associated with the installation of the improvements resulted in the release of asbestos fibers. They argued the construction statute of repose did not apply to construction activities such as sawing and cutting asbestos pipe and mixing powdered asbestos cement.

The Michigan statute provided in pertinent part:

No person may maintain any action to recover damages ... for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property ... against any contractor making the improvement, more than 6 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement, or 1 year after the defect is discovered or should have been discovered... no such action shall be maintained more than 10 years after the time of occupancy of the completed improvement, use, or acceptance of the improvement.

Mich. Comp. Laws § 600.5839(1). The court determined contractors would not "enjoy the repose that the statute intends to guarantee if plaintiffs, barred...