Norwest Bank Nebraska, N.A. v. W.R. Grace & Co.- Conn.

• Decision Date: 06 April 1992
• Docket Number: No. 91-2276,91-2276
• Parties: Prod.Liab.Rep. (CCH) P 13,144 NORWEST BANK NEBRASKA, N.A., Appellant, v. W.R. GRACE & CO.--CONN., Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 754

960 F.2d 754

Prod.Liab.Rep. (CCH) P 13,144

NORWEST BANK NEBRASKA, N.A., Appellant, v. W.R. GRACE & CO.--CONN., Appellee.

No. 91-2276.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 13, 1991.

Decided April 6, 1992.

Kenneth B. McClain, Independence, Mo., argued (Philip J. Goodman, Steven G. Silverman and John A. Hubbard, Birmingham, Mich., on brief), for appellant.

Michael G. Connery, Omaha, Neb., argued (David A. Jacobson and Tory M. Bishop, on brief), for appellee.

Before GIBSON, Circuit Judge, FRIEDMAN, ^* Senior Circuit Judges, and MAGILL, Circuit Judge.

FRIEDMAN, Senior Circuit Judge.

This is an appeal from a judgment of the United States District Court for the District of Nebraska dismissing a product liability diversity case on the ground that the governing Nebraska statute of limitations bars the suit. The appellant contends that application of the statute to preclude its suit violated the due process and equal protection clauses of the Fourteenth Amendment of the United States Constitution and the due process and other provisions of the Nebraska Constitution. We decline to decide the federal due process claim because the appellant failed to raise it in the district court. We reject on the merits the other federal and state constitutional claims and, therefore, affirm.

I.

In 1978, Nebraska enacted a statute governing numerous aspects of product liability actions, including time bars for bringing those actions. Neb.Rev.Stat. § 25-224 (Reissue 1989). Subsection 1 provides that "[a]ll product liability actions ... shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs." Subsection (2) provides that "[n]otwithstanding subsection (1) ... any product liability action ... shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption." § 25-224(2). The statute further provides that "any cause of action or claim which any person may have on July 22, 1978 [the effective date of the statute], may be brought not later than two years following such date." § 25-224(4).

The appellant Norwest Bank Nebraska (Norwest) filed suit in 1989 against the appellee W.R. Grace & Co. (Grace). The complaint alleged that Norwest owns the Norwest Bank Center in Omaha, Nebraska, constructed between 1969 and 1970; that Grace manufactured a fireproofing product containing asbestos which was installed on the building's beams and structural members during construction; that asbestos is a known carcinogen; and that after Norwest discovered the presence of the asbestos, Grace refused to remedy the hazard it created. Norwest alleged that the asbestos contaminated the building, creating unacceptable and unanticipated health risks, and that the asbestos fireproofing must be removed and the building decontaminated at a cost of more than five million dollars. The complaint sought damages based on strict liability in tort, negligence, misrepresentation, breach of express and implied warranties, and civil conspiracy.

Grace moved for summary judgment, contending that § 25-224(2) barred Norwest's suit. Norwest countered that § 25-224 violated (1) the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, U.S. Const. am. XIV, § 1, (2) article I, §§ 3 & 13 (due process clause and open courts guarantee) and (3) article III, §§ 14 & 18 (statute title requirements and prohibition of "special legislation") of the Nebraska Constitution.

The district court (C.J. Strom) rejected each of Norwest's challenges to the statute, granted the motion and dismissed the case. After reviewing Nebraska and federal cases sustaining the constitutionality of § 25-224 and similar Nebraska statutes, the court held that "the statute of limitations in § 25-224 is applicable to this case," that the statute is "a permissive legislative enactment which does not violate the provisions of the Nebraska and United States Constitutions," and that "Norwest's claims are barred as a matter of law."

II.

A. Norwest's principal contention is that the application of § 25-224(2) to bar its suit against Grace denied Norwest due process in violation of the Fourteenth Amendment of the United States Constitution. Because Norwest did not raise this federal constitutional claim in the district court, Norwest is precluded from making the argument on appeal.

The only federal constitutional claim Norwest raised in the district court was an equal protection argument, which we discuss and reject in Part II. B. The only due process claim Norwest raised in the district court was one under the Nebraska constitution. That state constitutional claim was inadequate to raise the federal claim.

Norwest argues that because the state due process constitutional provision cannot provide less protection than the federal due process clause, its challenge to the statute under the state constitution also necessarily sufficiently raised the federal constitutional claim to permit it to litigate that claim in this appeal. Nothing Norwest said in the district court indicated to or alerted that court that Norwest was raising a federal constitutional claim. The district court did not view the federal issue as presented to it for decision, since the only constitutional issues that court considered and decided were federal equal protection and state due process and other constitutional claims. A district court should be specifically informed of the precise constitutional issues that a litigant wants it to decide. Indeed, it is difficult to understand how the district court can be charged with committing reversible error in failing to hold in Norwest's favor on a constitutional claim that Norwest did not raise before that court.

In Daley v. Webb, 885 F.2d 486 (8th Cir.1989), this court held that the appellant's claim "that he was not afforded adequate procedural due process" in the administrative proceedings through which his employment was terminated, "is not properly before us, as it was not raised in the District Court." Id. at 488. The court pointed out that "at no time was the trial judge or the jury given an opportunity to consider this claim." Id. The court stated:

It is well-settled law that we will not address an issue not raised in the trial court, save in exceptional circumstances where the result of our not addressing the issue would be a " 'plain miscarriage of justice' " or " 'inconsistent with substantial justice.' " ... This case presents no such exceptional circumstances. We therefore decline to consider this claim.

Id. (Citations omitted).

Although in Daley the due process claim had not been raised at all in the district court, we think the same principle applies in the present case, where Norwest did not raise in the district court the federal due process constitutional claim it now asserts before us, but raised only a state due process contention. Different law governs the two constitutional claims: Federal law determines the federal claims and Nebraska law governs the state claims; moreover, although the language of the federal and state due process clauses may be identical, their substantive content and scope may be different. Cf. National Capital Naturists, Inc. v. Board of Supervisors, 878 F.2d 128, 133 (4th Cir.1989) ("The fact that language in a state constitution may parallel that in the United States Constitution is no reason to suppose that the lines of decisional authority under those provisions will invariably be identical.").

Norwest's raising of its state due process constitutional claim in the district court did not excuse its failure to raise the federal due process claim there. As in Daley, the federal claim "is not properly before us" and we "therefore decline to consider this claim"; also, as in Daley, there are no "exceptional circumstances" that would justify departure from this settled principle.

B. Norwest's equal protection claim under the Fourteenth Amendment of the United States Constitution relates to the restriction of the limitations period in § 25-224(2) to suits against "a manufacturer, seller, or lessor," resulting from the definition of "products liability action" in Neb.Rev.Stat. § 25-21,180 as an action brought against any of those three entities. According to Norwest, the distinction between manufacturers, sellers and lessors on the one hand, and all other entities such as repairmen on the other, is not rationally related to the legislative purpose in imposing those statutes of limitations in product liability suits and results in unjust discrimination between plaintiffs.

The governing standard for determining the validity of a state statutory classification that does not create a suspect class is that a state statute does not violate the Equal Protection Clause if the classification has a "rational basis" or is "rationally related to a legitimate state interest." New Orleans v. Dukes, 427 U.S. 297, 303, 96 S.Ct. 2513, 2517, 49 L.Ed.2d 511 (1976); Cornerstone Bible Church v. City of Hastings, 948 F.2d 464, 471 (8th Cir.1991). Furthermore, a statutory classification

does not offend the Constitution simply because the classification "is not made with mathematical nicety or because in practice it results in some inequality." Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78 [31 S.Ct. 337, 340, 55 L.Ed. 369 (1911) ]. "The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical it may be, and unscientific." Metropolis Theatre Co. v City of Chicago, 228 U.S. 61, 69-70 [33 S.Ct. 441, 443, 57 L.Ed. 730 (1913) ]. "A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it." McGowan v. Maryland, 366 U.S. 420, 426 [81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961) ].

Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153,...