Murphy v. Owens-Corning Fiberglas Corp.

• Decision Date: 11 June 2001
• Docket Number: No. 3354.,3354.
• Citation: 346 S.C. 37,550 S.E.2d 589
• Parties: Janet B. MURPHY and David M. Murphy, Appellants, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corporation, ACandS, Inc., Rock Wool Manufacturing Co., Inc., The Anchor Packing Company, Rapid American Corporation, Garlock, Inc., Westinghouse Electric Corporation, Uniroyal, Inc., PPG Industries, Inc., Covil Corporation, E.I. Du Pont de Nemours and Company, Defendants, Of whom Rapid American Corporation and E.I. Du Pont de Nemours and Company are, Respondents.
• Court: South Carolina Court of Appeals

346 S.C. 37

550 S.E.2d 589

Janet B. MURPHY and David M. Murphy, Appellants, v. OWENS-CORNING FIBERGLAS CORP., Pittsburgh Corning Corporation, ACandS, Inc., Rock Wool Manufacturing Co., Inc., The Anchor Packing Company, Rapid American Corporation, Garlock, Inc., Westinghouse Electric Corporation, Uniroyal, Inc., PPG Industries, Inc., Covil Corporation, E.I. Du Pont de Nemours and Company, Defendants, Of whom Rapid American Corporation and E.I. Du Pont de Nemours and Company are, Respondents.

No. 3354.

Court of Appeals of South Carolina.

Heard November 7, 2000.

Decided June 11, 2001.

Rehearing Denied August 24, 2001.

L. Joel Chastain and William J. Cook, both of Ness, Motley, Loadholt, Richardson & Poole, of Barnwell; and Jeffrey T. Eddy, of Ness, Motley, Loadholt, Richardson & Poole, of Charleston, for appellants.

Ivan A. Gustafon and Christopher G. Conley, of Blasingame, Burch, Garrard, Bryant & Ashley, of Athens, GA; Jackson L. Barwick, Jr., Valerie Palmer Williams, of Holmes & Thompson; and David E. Dukes, C. Mitchell Brown and Michael W. Hogue, all of Nelson Mullins, Riley & Scarborough, all of Columbia; and Carl E. Pierce, II, of Charleston, for respondents.

Amicus Curiae on Behalf of Owens-Illinois, Inc., R. Bruce Shaw and William C. Wood, Jr., both of Nelson, Mullins, Riley & Scarborough, of Columbia.

KITTREDGE, Acting Judge:

Janet Murphy, a resident of Virginia, brought this action alleging she developed mesothelioma as a result of exposure to asbestos fiber trapped in the clothing of her father, Dr. Charles Baker, while he worked for E.I. Du Pont de Nemours at several locations, including the facility located in Camden, South Carolina. The trial court granted the respondents' motion to dismiss for lack of subject matter jurisdiction based upon the Door Closing Statute.¹ Murphy and her husband appeal.² We reverse and remand.³

FACTUAL/PROCEDURAL BACKGOUND

Janet B. Murphy and David M. Murphy, who are wife and husband, brought this action seeking damages for injuries that they sustained after Janet developed mesothelioma from an alleged household exposure to asbestos. The Murphys allege Janet developed the disease as a result of inhaling asbestos fibers trapped in her father's clothing. From 1966 to 1969, Janet was a resident of South Carolina while her father, Dr. Charles Baker, worked for E.I. Du Pont de Nemours at its facility in Camden. Before and after that time, he worked at other Du Pont facilities in Virginia and Europe. Dr. Baker testified by deposition, however, that he was exposed to more asbestos in Camden than in the other locations.

Dr. Baker stated that one of his major projects at the Camden plant was the development of a larger, higher capacity spinning cell for spinning Orlon acrylic fiber. He stated that the equipment involved in the spinning process was continually reconfigured which exposed him to insulation material while he observed the removal and re-installation of the equipment. He was also exposed to asbestos in other areas of the Camden plant where various equipment changes were taking place. Dr. Baker stated there was always evidence of some dust in the area and he specifically recalled times when his clothes were dusty.

Janet, born in 1960, lived at home with her parents until she entered college in 1978. In 1982 she moved to Virginia where her condition was eventually diagnosed.⁴ Shortly thereafter, Dr. Baker came to believe he had exposed his daughter to asbestos through his clothing. He held her as an infant and maintained a close relationship with her as she grew. Janet testified in her deposition that she would routinely crawl into his lap when he returned home from work and they would read stories or watch television.

Dr. Victor L. Roggli, a board certified pathologist with extensive experience with asbestos related diseases, examined Janet's tissue specimens, medical records, and exposure history. In an affidavit submitted to the court, he concluded: "Janet Murphy's exposure to the asbestos fibers in her father's clothes while he was employed by Du Pont at the Camden, South Carolina facility from January 1966 to July 1969 was a proximate cause of the development of [her] mesothelioma in that these Camden, South Carolina exposures significantly contributed to the development of her mesothelioma." Dr. Roggli also stated that Janet's "Camden, S.C. exposure from January 1966 to July 1969 was sufficient, in and of itself, to have caused mesothelioma."

The respondents moved to dismiss the action, asserting the circuit court lacked subject matter jurisdiction over the Murphys' complaint based upon the application of the Door Closing Statute. The trial court agreed and dismissed the Murphys' claims, finding that the South Carolina Door Closing Statute restricted its subject matter jurisdiction "for claims brought by non-resident plaintiffs against non-resident defendants to causes of action that shall have arisen in this state," and further that the Murphys' action did not arise in South Carolina because the injury-the impairment from the development of mesothelioma-was diagnosed in Virginia. This appeal followed.

STANDARD OF REVIEW

This is an appeal from the grant of a motion to dismiss for lack of subject matter jurisdiction. The question of subject matter jurisdiction is a question of law for the court. Woodard v. Westvaco Corp., 315 S.C. 329, 433 S.E.2d 890 (Ct.App.1993), vacated on other grounds by, 319 S.C. 240, 460 S.E.2d 392 (1995)

. In determining whether to dismiss based on lack of jurisdiction, the court may consider "affidavits and other evidence outside the pleadings ..." without converting the motion into one for summary judgment. Baird v. Charleston County, 333 S.C. 519, 529, 511 S.E.2d 69, 74 (1999).

DISCUSSION

I.

As a preliminary matter, the respondents contend the order of the circuit court is not immediately appealable because the Murphys' claims against one defendant still remain. The trial court did not grant the motion to dismiss with respect to Covil Corporation because it is a South Carolina corporation.

The respondents rely upon State ex rel. McLeod v. C & L Corp., 280 S.C. 519, 313 S.E.2d 334 (Ct.App.1984), in support of their argument. In that case, the trial court granted summary judgment to two defendants during the course of the proceedings. Although an immediate appeal was not taken, after the entry of a final order, the Attorney General filed a cross appeal raising the issue of summary judgment. The two defendants argued the cross appeal should be dismissed because the summary judgment order was a final order from which an appeal had not been timely perfected. The supreme court denied the motion to dismiss and transferred the case to this court for disposition. Our opinion notes the supreme court's ruling on the motion to dismiss was binding on this court. Judge Bell, writing for this court, stated that the Attorney General's appeal from the final order was sufficient to bring the intermediate order granting summary judgment before the court for review. The opinion states that "[w]hen multiple defendants are joined in the same action, an order dismissing some but not all of them is ordinarily not final or appealable." Id. at 529, 313 S.E.2d at 340.

This particular point regarding dismissal of some, but not all, multiple defendants has not been cited subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Dev. Services v. Joe Harden Builder, Inc., 296 S.C. 115, 370 S.E.2d 893 (Ct.App.1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all claims against a single defendant was not immediately appealable. However, the Plaza Development case was overruled on that point by Link v. School Dist. of Pickens County, 302 S.C. 1, 393 S.E.2d 176, nt. 2 (1990). In Link, the supreme court noted it had previously held in Lebovitz v. Mudd, 289 S.C. 476, 347 S.E.2d 94 (1986) that an order granting a Rule 12(b)(6) motion as to one of multiple claims is directly appealable under S.C.Code Ann. Section 14-3-330(2) because it affects a substantial right and strikes out part of a pleading.

It is correct that the grant of the Rule 12(b)(1) motion in this case is not a final order as there is a remaining defendant. However, the practical effect of the grant of the motion is that it strikes out the Murphys' complaint with respect to the respondents. Viewing McLeod in light of Lebovitz and Link, we conclude an order granting a Rule 12 motion as to some, but not all of the defendants in a case, is directly appealable under Section 14-3-330(2) because it affects a substantial right and strikes out part of a pleading.

II.

The Murphys contend the trial court erred in determining that their cause of action "arose" in the state where the diagnosis was made rather than where the exposure occurred for purposes of the South Carolina Door Closing Statute. We agree.

The South Carolina Door Closing Statute, S.C.Code Ann. § 15-5-150 (1976), provides in pertinent part:

An action against a corporation created by or under the laws of any other state, government or country may be brought in the circuit court:

* * *

(2) By a plaintiff not a resident of this state when the cause of action shall have arisen or the subject of the action shall be situated within this state.

(Emphasis added). This statutory provision prohibits a non-resident from maintaining an action against a foreign corporation in a South Carolina court unless the cause of action arose in South Carolina or the subject of the action is located here.⁵

It is well settled that the Door Closing Statute serves three basic legislative objectives related to the state's interests. First, it favors resident plaintiffs over non-resident plaintiffs. Central R.R. & Banking v. Georgia Constr. & Inv. Co., 32 S.C. 319, 11 S.E. 192 (1890). Second, it provides a forum for wrongs connected with the state while...