Koch v. Shell Oil Co.

Decision Date13 May 1993
Docket NumberCiv. A. No. 92-4239-DES.
PartiesCharles KOCH, Plaintiff, v. SHELL OIL COMPANY and Feed Specialties Co., Inc., Defendants.
CourtU.S. District Court — District of Kansas

Ronald R. Hein, Stephen P. Weir, Hein, Ebert and Rosen, Chtd., Topeka, KS, for plaintiff.

Hal D. Meltzer, Turner & Boisseau, Chartered, Overland Park, KS, for defendant Shell Oil Co.

James P. Nordstrom, Fisher, Patterson, Sayler & Smith, Topeka, KS, for defendant Feed Specialties Co., Inc.


SAFFELS, Senior District Judge.

This matter is before the court on the motion of defendant Shell Oil Company for summary judgment.1 Plaintiff claims that a number of his cattle became diseased and died as a result of ingesting the oral larvacide tetrachlorvinphos, commonly known by its trade name Rabon Oral Larvacide, or R.O.L. (hereinafter "Rabon"). He also claims personal injury as a result of his exposure to the substance. Defendant Shell Oil Company manufactures Rabon. Defendant Feed Specialties Co., Inc. ("Feed Specialties"), a livestock feed producer, distributed a feed Specialties"), a livestock feed producer, distributed a feed mixture containing Rabon to the farm co-op where plaintiff purchased feed ingredients for his cattle.

The essential facts underlying plaintiff's claim, which are virtually undisputed by defendant Shell Oil Company for purposes of summary judgment, are set out in full in the previous order of this court filed on March 18, 1993. See Koch v. Shell Oil Co., 815 F.Supp. 1434 (D.Kan.1993). The court's prior order denied the separate summary judgment motion of defendant Feed Specialties. On March 9, 1993, defendant Shell Oil Company ("Shell Oil") filed the summary judgment motion presently pending before the court, raising many of the same arguments that were advanced by Feed Specialties in its summary judgment motion. In addition, defendant Shell Oil raises one argument not previously asserted by Feed Specialties and which therefore was not addressed by this court. Specifically, Shell Oil argues as a matter of law that Rabon does not fall within the statutory definition of "harmful material" for purposes of triggering the latent disease exception to the ten-year statute of repose codified in K.S.A. 60-513(b). See K.S.A.1992 Supp. 60-3303(d)(1), (2).

Summary Judgment Guidelines

Under Fed.R.Civ.P. 56, the court is compelled to render summary judgment on behalf of a moving party 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. Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2511-12, 91 L.Ed.2d 202 (1986). An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510.

The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing'—that is, pointing out to the district court—that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). "A party opposing a properly supported motion for summary judgment may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party must go beyond the pleadings and designate specific facts, by affidavits, depositions, answers to interrogatories, and admissions on file, showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.

The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). However, a mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.


Shell Oil first argues that plaintiff's claims are barred by K.S.A. 60-513, reasoning that the last possible act that could have given rise to the claims occurred no earlier than October, 1981, more than ten years before the complaint was filed. As the court has previously held in denying summary judgment to Feed Specialties, plaintiff's claims would be time-barred on the basis of the ten-year statute of repose in K.S.A. 60-513(b), if that statute applies to plaintiff's claims. See Koch v. Shell Oil Co., 815 F.Supp. at 1439.

The primary argument advanced by Shell Oil, which Feed Specialties did not raise in its summary judgment motion, is that the latent disease exception to the normal ten-year statute of repose for tort claims cannot be applied in this case to save plaintiff's claims from the time-bar of K.S.A. 60-513(b). Specifically, Shell Oil argues strenuously that as a matter of law Rabon does not fall within the statutory definition of "harmful material" in K.S.A.1992 Supp. 60-3303(d)(2). If Rabon is not a harmful material, Shell Oil argues, the plaintiff cannot invoke the latent disease exception because K.S.A. 60-3303(d)(1), by its explicit terms, applies only to latent diseases caused by exposure to a "harmful material."2

The statutory definition upon which Shell Oil relies reads as follows:

(2) The term "harmful material" means silicone gel breast implants, which were implanted prior to July 1, 1992; any chemical substances commonly known as asbestos, dioxins, polychlorinated biphenyls, whether alone or as a part of any product, or any substance which is determined to present an unreasonable risk of injury to health or the environment by the United States environmental protection agency pursuant to the federal toxic substances control act, 15 U.S.C. Section 2601 et seq., or the state of Kansas, and because of such risk is regulated by the state or the environmental protection agency.

K.S.A.1992 Supp. 60-3303(d)(2).3

Plaintiff does not contend that Rabon is one of the specific chemical substances listed in the statutory definition of "harmful material." However, plaintiff contends that Rabon is nevertheless a harmful material that is regulated by the state and federal government, and that the statute should be construed broadly to give effect to its remedial purpose.

As the plaintiff contends, a legislative act remedial in nature is to be liberally construed to effectuate the purpose for which it was enacted. See, e.g., Smith v. Marshall, 225 Kan. 70, 587 P.2d 320, Syl. ¶ 1 (Kan. 1978); Lawrence Preservation Alliance, Inc. v. Allen Realty, Inc., 16 Kan.App.2d 93, 819 P.2d 138, 145 (1991), rev. denied, 16 Kan. App.2d 93, 819 P.2d 138 (1992). Statutes of limitation are considered remedial rather than substantive, because they bar only the remedy and not the right. Strecker v. Wilkinson, 220 Kan. 292, 552 P.2d 979, 984 (1976). The court notes, however, that K.S.A. 60-3303(d) is not a statute of limitations. Instead, it carves out a limited exception to the general ten-year statute of repose for tort actions.4 For cases falling within the exception, K.S.A.1992 Supp. 60-3303(d)(1) provides a unique rule for determining when the claim accrues, not when the claim is cut off. Compare K.S.A.1992 Supp. 60-3303(d)(1) with K.S.A.1992 Supp. 60-513(a), (b)(1). Therefore, the court cannot agree with the plaintiff's contention that K.S.A. 60-3303(d) is remedial legislation that must be construed broadly to effectuate its purpose. Rather, the statute of repose at issue here is substantive legislation. See Waller v. Pittsburgh Corning Corp., 946 F.2d 1514, 1515 (10th Cir.1991); Menne v. Celotex Corp., 722 F.Supp. 662, 666 (D.Kan.1989).

Furthermore, K.S.A.1992 Supp. 60-3303(d)(2) is an exception to the general statute of repose for tort actions in K.S.A. 60-513(b). As such, it must be strictly or narrowly construed, and anyone seeking relief from operation of the general statute bears the burden of proving that he comes within the exception. Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877, 886 (1984); McGinnis v. Kansas City Power and Light Co., 231 Kan. 672, 647 P.2d 1313, 1319 (1982); Broadhurst Foundation v. New Hope Baptist Soc., 194 Kan. 40, 397 P.2d 360, 365 (1964). In construing a statutory exception, any doubt should be resolved against its application and in favor of the general rule. See Jackson, 680 P.2d at 886; Broadhurst, 397 P.2d at 365.

The court agrees that the resolution of Shell Oil's motion for summary judgment depends upon this court's interpretation of the latent disease exception enacted by the 1990 Legislature. In order to interpret the statute, the court must try to ascertain as best it can that amorphous and ethereal concept known as legislative intent. See State v. Hill, 189 Kan. 403, 369 P.2d 365, 370 (1962) (fundamental rule of statutory construction is to ascertain lawmakers' intent in order that the legislature's true meaning may be determined); see also Connecticut National Bank v. Germain, ___ U.S. ___, ___, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992) (canons of construction help courts determine the meaning of legislation). In...

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