Menne v. Celotex Corp.

• Decision Date: 13 September 1989
• Docket Number: No. 85-1929-K.,85-1929-K.
• Parties: Mary K. MENNE, Individually and as Personal Representative of the Estate of Donald R. Menne, Deceased, Plaintiff, v. The CELOTEX CORPORATION; Eagle Picher Industries, Inc.; and Fibreboard Corporation, Defendants.
• Court: U.S. District Court — District of Kansas

722 F. Supp. 662

Mary K. MENNE, Individually and as Personal Representative of the Estate of Donald R. Menne, Deceased, Plaintiff, v. The CELOTEX CORPORATION; Eagle Picher Industries, Inc.; and Fibreboard Corporation, Defendants.

No. 85-1929-K.

United States District Court, D. Kansas.

September 13, 1989.

Paul H. Hulsey, Motley, Loadholt, Richardson & Poole, Charleston, S.C., Dan L. Wulz, Topeka, Kan., for plaintiff.

James Borthwick, Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, Mo., and James D. Griffin, Blackwell, Sanders, Matheny, Weary & Lombardi, Overland Park, Kan., David E. Larson, Morris, Larson, King, Stamper & Bold, Kansas City, Mo., Paul E. Vardeman, Polsinelli, White, Vardeman & Shalton, Kansas City, Mo., and Dale E. Bennett, Overland Park, Kan., David E. Larson, Morris & Larson, Kansas City, Mo., Butler, Vines, Babb & Threadgill, Knoxville, Tenn., Michael P. Oliver, Wallace, Saunders, Austin, Brown & Enochs, Overland Park, Kan., Bryce A. Abbott, Wallace, Saunders, Austin, Brown & Enochs, Wichita, Kan., for defendants.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

The original plaintiff, Donald Menne, was diagnosed in 1983 as suffering from malignant mesothelioma. In 1985, Menne brought an action before the present court seeking recovery against the defendants for strict liability and failure to warn. Menne contended that he had sustained his injuries from exposure to asbestos products manufactured by the defendants.

In a trial held in June 1986, the jury returned a verdict against four of the defendants: Celotex, Eagle Picher Industries, Fibreboard, and Raymark. Defendants Keene Corporation and Owens-Illinois, Inc. were found not liable. The jury awarded damages to plaintiff Menne in the amount of $2,500,000.00. By stipulation of the parties, the case was tried under the substantive law of the State of Nebraska.

Following the jury verdict, defendant Raymark entered into a settlement agreement with the plaintiff. On appeal, the Tenth Circuit reversed, finding error in instructions to the jury relating to the law of Nebraska. Menne v. Celotex Corp., 861 F.2d 1453 (10th Cir.1988). The case was then remanded to this court for retrial.

The original plaintiff died of mesothelioma on February 12, 1987. The claims against the three remaining defendants now take the form of an action for wrongful death brought by Donald Menne's representative, Mary Menne, under Nebraska law.

On March 3, 1989, the Supreme Court of Kansas filed its opinion in Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989). In response to a question certified by this court, the Supreme Court held that the ten-year limitations provision contained in K.S.A. 60-513(b) was applicable to latent disease claims, and that this limitation was constitutional as applied to the plaintiff's action for injuries arising from exposure to asbestos. Two defendants in the present case, Celotex and Fibreboard, have now moved for summary judgment, contending that the present action is barred by K.S.A. 60-513(b). A hearing on the defendants' motions was held on August 14, 1989.

In its motion for summary judgment, defendant Fibreboard asserts that the last exposure of Donald Menne to any of its products occurred in 1948. Defendant Celotex has adopted and joined in Fibreboard's motion. Plaintiff Mary Menne does not controvert the asserted date of Donald Menne's last exposure.

Under Kansas law, lex fori, the law of the forum, governs the determination of the statute of limitations. Brauer v. Republic Steel Corp., 460 F.2d 801 (10th Cir. 1972); Murphy v. Klein Tools, Inc., 693 F.Supp. 982, 984 (D.Kan.1988); Schreiber v. Allis-Chalmers Corp., 448 F.Supp 1079, 1091-93 (D.Kan.1978), rev'd on other grounds, 611 F.2d 790 (10th Cir.1979); Green v. Kensinger, 199 Kan. 220, 223, 429 P.2d 95 (1967). Unless there is an applicable exception recognized by the law of the forum state, the lex fori rule controls. Murphy, 693 F.Supp. at 984; Green, 199 Kan. at 223-224, 429 P.2d 95. Under the ten-year limitation contained in K.S.A. 60-513(b), the present action would be barred under Kansas law. Tomlinson, 244 Kan. at 481, 770 P.2d 825. The plaintiff does not deny this conclusion, but asserts, for a variety of reasons, that it is the Nebraska, not Kansas, statute of limitations that applies.

The plaintiff first suggests that the Kansas statute of limitations cannot be applied to the present case consistent with the due process and full faith and credit clauses of the United States Constitution. An argument similar to the plaintiff's has previously been rejected by the Supreme Court. In Sun Oil Co. v. Wortman, 486 U.S. 717, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988), the Court rejected an argument that a forum state, by that status alone, may have insufficient contact with litigation to enable it to impose its statute of limitations. The Constitution, the Court concluded, "does not bar application of the forum State's statute of limitations to claims that in their substance are and must be governed by the law of a different State." 486 U.S. at ___, 108 S.Ct. at 2121, 100 L.Ed.2d at 752.

Relying on the stipulation of the parties, the plaintiff makes a general argument in her brief that all Kansas law is inapplicable since the parties agreed prior to the previous trial to apply Nebraska law. In the stipulation filed May 5, 1986, the parties, however, agreed only that "the substantive law of Nebraska controls the case." The stipulation does not require the application of Nebraska procedural law or prohibit the application of the procedural law of Kansas. It contains no express provision indicating that the parties agreed to be bound by Nebraska limitations statutes, to the exclusion of those provided by Kansas, the forum jurisdiction. The plaintiff's argument that Kansas law in toto is inapplicable due to the stipulation must be rejected. Of course, the separate question of whether the specific statute at issue here, the last clause of K.S.A. 60-513(b), is procedural or substantive remains to be resolved, and is discussed below.

The plaintiff also argues for the application of an exception to the lex fori rule. Under this exception, where a right of action is created by a foreign state statute which also creates a limitations period specifically applicable to that right, the limitations period of the foreign state is viewed as a substantive limitation on that right and may be applied by the forum state. See, e.g., RESTATEMENT (SECOND) OF CONFLICT OF LAWS, § 143 comment c. This exception to the general rule provides that

where the statute creates a right and also incorporates a limitation upon the time within which the suit is to be brought, the limitation qualifies the right so that it becomes a part of the substantive law rather than the procedural, and that unless suit is brought within the time allowed by statute, no right of action can be maintained even though the law of the forum provides for a longer period of limitation.

Jenkins v. Armstrong World Industries, Inc., 643 F.Supp. 17 (D.Idaho 1985), vacated on other grounds, Meyer v. Armstrong World Industries, Inc., 820 F.2d 329 (9th Cir.1987) (quoting California v. Copus, 158 Tex. 196, 309 S.W.2d 227, 231, cert. denied, 356 U.S. 967, 78 S.Ct. 1006, 2 L.Ed.2d 1074 (1958)).

The plaintiff's argument must be rejected. The Nebraska wrongful death statute requires that actions under the statute be brought "within two years after the death of such person." Neb.Rev.Stat. § 30-810. The original plaintiff, Donald Menne, died on February 23, 1987, and the present action was brought within two years of that date. However, the Nebraska statute also prohibits recovery under a wrongful death action unless the injured party would have been entitled to bring an action and recover damages "if death had not ensued." Neb. Rev.Stat. § 30-809.

The exception advanced by the plaintiff therefore begs the underlying question. Even if the wrongful death action might have been timely brought otherwise, the present action cannot be maintained unless Donald Menne could have brought the original action under Kansas law. The original action, involving a claim alleging strict liability for personal injuries arising from the plaintiff's employment, "is not a statutory creation having its own limitations period." Murphy v. Klein Tools, Inc., 693 F.Supp. 982, 984 (D.Kan.1988) (citing Johansen v. E.I. DuPont De Nemours & Co., 810 F.2d 1377, 1381 (5th Cir.), cert. denied, 484 U.S. 849, 108 S.Ct. 148, 98 L.Ed.2d 104 (1987). Thus, Judge Crow in Murphy determined that such an action was not subject to the exception for foreign statutory rights, and that the action was subject to the Kansas statute of limitations.

The plaintiff also argues that the defendants should not be permitted to raise the defense provided by K.S.A. 60-513(b), contending that this defense is barred through equitable estoppel. The plaintiff's argument regarding equitable estoppel must be rejected. Under Kansas law, a defendant may be estopped from asserting the running of a statute of limitations if the defendant has done something that amounted to an affirmative inducement to the plaintiff to delay bringing the action. Safeway Stores, Inc. v. Wilson, 190 Kan. 7, 12, 372 P.2d 551 (1962); Rex v. Warner, 183 Kan. 763, 771, 332 P.2d 572 (1958). See also Friends University v. W.R. Grace & Co., 227 Kan. 559, 564, 608 P.2d 936 (1980) (quoting 51 Am.Jur.2d, Limitation of Actions § 148 at 719-721). Moreover, the allegation of fraudulent concealment will not toll the Kansas statute of limitations unless the plaintiff's claim for relief is grounded on fraud. Pike v. City of Mission, 731 F.2d 655 (10th Cir.1984); McCoy v. Wesley Hospital and Nurse Training School, 188 Kan. 325, 362 P.2d 841 (1961). In the present action, the plaintiff's claim is not grounded on a claim of fraud. The original complaint makes claims for recovery based on negligence, failure...