Kansas City v. W.R. Grace & Co.
| Decision Date | 03 July 1989 |
| Docket Number | No. WD,WD |
| Citation | 778 S.W.2d 264 |
| Court | Missouri Court of Appeals |
| Parties | KANSAS CITY, a Municipal Corporation, Appellant v. W.R. GRACE & CO., et al., Respondents. 41083. |
Kenneth Blair McClain, II, Independence and Alan Runyan, Hampton, S.C., for appellant.
W.R. Grace & Co., pro se.
Spencer J. Brown, Kansas City, for U.S. Gypsum.
Robert J. Campbell, Overland Park, Kan., for Carey-Canada, Inc. and Celotex Corp.
William H. Sanders, Kansas City, for Fibreboard Corp.
Clifford Brooks Wood, Kansas City, for Keene Corp.
John H. Altergott, Jr., Kansas City, for Asbestospray Corp.
Robert Andrew Henderson, Kansas City, for Armstrong World Industries, Inc.
Frederick H. Riesmeyer, II, Kansas City, for ACandS, Inc.
Charles Seigel, St. Louis, for John L. May, Archbishop, amicus curiae.
Thomas A. Mickes, St. Louis, for Missouri Counsel of School Attys., amicus curiae.
Before TURNAGE, P.J., and CLARK and FENNER, JJ.
Appellant, the City of Kansas City, Missouri (Kansas City) appeals the orders of the trial court granting Respondents' Motions for Summary Judgment. The underlying cause of action is a civil suit brought by Kansas City alleging property damage at Kansas City International Airport (KCI) and Kansas City Downtown Airport (Downtown Airport). Kansas City alleges its damages are as a result of asbestos-containing acoustical, fireproofing and thermal insulation materials in its airport buildings.
In the underlying cause of action Kansas City settled with W.R. Grace & Co. and stipulated to the dismissal of certain other parties. The remaining parties, respondents herein, are as follows: Keene Corporation, United States Gypsum Company, Asbestospray Corporation, Fibreboard Corporation, Armstrong World Industries, Inc., ACandS, Inc., H & A Construction Corporation, Asbestos Product Manufacturing Corporation and The Celotex Corporation. The respondents are alleged to have been in the business of the design, manufacture and sale of building construction materials containing asbestos. The asbestos products of the respondents are alleged to have been placed in the Downtown Airport and KCI during construction. Construction of the Downtown Airport took place from 1958 to 1964 and construction of KCI occurred between 1969 and 1972.
Kansas City alleges that its airport buildings and their contents have been contaminated by asbestos fibers from the asbestos products of the respondents. Kansas City represents that when inhaled asbestos fibers cause numerous severe, disabling and fatal diseases including mesothelionia, an untreatable cancer of the pleural lining of the lungs and abdomen, as well as other cancers of the lungs, gastrointestinal cancer, laryngeal cancer, asbestosis, small airways disease and other diseases to the body, lungs, respiratory system and skin. Kansas City alleges that as a result of the asbestos contamination, it has been required to spend money for assessment and abatement of the asbestos containing materials, all to its damage in the sum of $20,000,000.
Kansas City alleges six theories of recovery against respondents as follows: negligence, strict tort liability, breach of implied warranty, breach of express warranty, fraud, and civil conspiracy.
Kansas City filed its suit on August 12, 1986, and discovery was undertaken on the issue of the statutes of limitations. On September 25, 1987, the respondents moved jointly and individually for summary judgment on the ground that the various applicable statutes of limitations had run. In addition, the respondents also moved for partial summary judgment on the ground that the claims arising from construction of KCI were barred by a release executed in settlement of a claim over alleged construction and design deficiencies at KCI. The respondents herein were not parties to the On August 18, 1988, the trial court entered summary judgment in favor of respondents based on the statutes of limitations and on the release.
release but claimed to have been covered by the terms of the release.
Kansas City alleges the trial court erred in entering summary judgment on the ground that the applicable statute of limitations had run on each count of its petition.
A party is entitled to a summary judgment "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 a judgment as a matter of law." Rule 74.04(c). Summary judgment is an extreme and drastic remedy and should be utilized with great care. Commerce Bank of Fenton v. B.P.J. Enterprises, 659 S.W.2d 615, 617 (Mo.App.1983). When issues of fact are present, statute of limitations issues must be submitted to the jury. Hopkins v. Goose Creek Land Co., Inc., 673 S.W.2d 465, 469 (Mo.App.1984). In considering a motion for summary judgment, the court must scrutinize the record in a light most favorable to the non-moving party, and give that party the benefit of every doubt. Eugene Alper Const. Co., Inc. v. Joe Garavelli's of West Port, Inc., 655 S.W.2d 132, 135 (Mo.App.1983). The burden is on the party moving for summary judgment to demonstrate that there is no genuine issue of fact. Gast v. Ebert, 739 S.W.2d 545, 546 (Mo. banc 1987). A genuine issue of fact exists when there is the slightest doubt about a fact. Id.
Kansas City alleged in its Petition that respondents were negligent in formulating their products with asbestos which constituted a concealed defect and in failing to warn the City of the dangers of asbestos in their products. Kansas City's claim for strict tort liability was based on its allegation that respondents' products were defective and unreasonably dangerous.
The applicable statute of limitations for negligence and strict liability is § 516.120 1 which allots five years from the accrual of the cause of action. A cause of action for negligence or strict liability accrues not "when the wrong is done or the technical breach of contract or duty occurs, but when the damage resulting therefrom is sustained and capable of ascertainment." § 516.100.
In order for a cause of action in tort for asbestos contamination to accrue, release of toxic asbestos fibers into the environment is necessary together with the ability to ascertain a substantial and unreasonable risk of harm from the release of the toxic asbestos fibers. School District of Independence v. U.S. Gypsum, 750 S.W.2d 442, 457 (Mo.App.1988). Until such occurrences a party has no right to sue based upon asbestos contamination of the environment. "Where a party's right depends on the happening of an event in the future, the cause of action accrues, and the statute of limitations begins to run, only at the time the event happens ..." De Paul Hospital School of Nursing, Inc. v. Southwestern Bell Tel. Co., 539 S.W.2d 542, 546 (Mo.App.1976).
The record herein reflects that there are genuine issues of material fact as to when the City's causes of action for negligence and strict liability accrued.
The respondents represent that the record reflects the City's cause of action for negligence and strict liability accrued prior to August 11, 1981, which was more than five years before suit was filed. There are several matters in the record that the parties argue relate to the accrual of Kansas City's cause of actions for negligence and strict liability as well as the other causes plead. These matters are divided into the following categories: Concerns During KCI Construction, NESHAP Report, Terminal A--1975, NIOSH Report
1977, City Health Department, Scientific Knowledge, and Hygienetics Report 1985.
Respondents argue that during the construction of KCI in 1972, Kansas City knew that a representative of the United States Department of Labor Occupational Safety and Health Administration (OSHA) recommended that a non-asbestos-containing material be substituted for the asbestos containing material being applied in the KCI terminal buildings. Respondents also point to the record reflecting that the construction engineers for KCI represented that the substituted non-asbestos-containing material would comply with OSHA regulations relating to exposure to asbestos dust. In this same vein respondents reference an article in the Kansas City Star on April 14, 1972, which discusses the concern that construction workers at KCI were possibly being unnecessarily exposed to asbestos dust.
These matters all relate to concerns over exposure of construction personnel working with asbestos. The concerns expressed during construction of KCI do not establish that the asbestos products once installed would be an environmental contaminant to the extent that the products would need to be removed as a health hazard or that Kansas City, or anyone else, possessed such knowledge during construction.
In granting respondents' Motion for Summary Judgment on Kansas City's claims for negligence and strict liability the trial court cited the regulations known as the National Emissions Standards for Hazardous Air Pollutants (NESHAPS) in support of its order. NESHAPS were promulgated and published by the Environmental Protection Agency (EPA) on April 6, 1973. 2 In pertinent part the NESHAPS regulations banned the use of spray-applied building materials containing more than 1% asbestos and required removal of such materials by methods which would prevent their release into the outside air whenever areas of greater than 160 square feet or 260 linear feet, which contain such materials, are renovated or demolished.
The trial court held that Kansas City had knowledge of the NESHAPS Regulations citing Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85, 68...
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