Owens Corning et al. v. Carter

• Decision Date: 01 July 1999
• Docket Number: OWENS-CORNING
• Citation: 997 S.W.2d 560
• Parties: (Tex.1999) OWENS CORNING, ET AL., APPELLANTS v. HILLIARD CARTER, APPELLEE OWENS CORNING, ET AL., APPELLANTS v. JAMES B. CARROLL, ET AL., APPELLEES OWENS CORNING, ET AL., APPELLANTS v. GEORGE R. ADAY, ET AL., APPELLEES OWENS CORNING, ET AL., APPELLANTS v. LARRY R. CHANDLER, ET AL., APPELLEES FIBERGLAS CORPORATION, OWENS CORNING, PITTSBURGH CORNING CORPORATION, MINNESOTA MINING & MANUFACTURING CO., A. P. GREEN INDUSTRIES, INC., ARMSTRONG WORLD INDUSTRIES, CERTAINTEED CORP., DANA CORP., QUIGLEY COMPANY, INC., ET AL., APPELLANTS v. AUSTIN E. DEFORD, ET AL., APPELLEES NO. 97-1162 NO. 97-1163 NO. 97-1164 NO. 97-1165 NO. 97-1166
• Court: Texas Supreme Court

Page 560

997 S.W.2d 560 (Tex.1999)

OWENS CORNING, ET AL., APPELLANTS v.HILLIARD CARTER, APPELLEEOWENS CORNING, ET AL., APPELLANTS v.JAMES B. CARROLL, ET AL., APPELLEESOWENS CORNING, ET AL., APPELLANTS v.GEORGE R. ADAY, ET AL., APPELLEESOWENS CORNING, ET AL., APPELLANTS v.LARRY R. CHANDLER, ET AL., APPELLEESOWENS-CORNING FIBERGLAS CORPORATION, OWENS CORNING, PITTSBURGH CORNING CORPORATION, MINNESOTA MINING & MANUFACTURING CO., A. P. GREEN INDUSTRIES, INC., ARMSTRONG WORLD INDUSTRIES, CERTAINTEED CORP., DANA CORP., QUIGLEY COMPANY, INC., ET AL., APPELLANTS v.AUSTIN E. DEFORD, ET AL., APPELLEES

NO. 97-1162

NO. 97-1163

NO. 97-1164

NO. 97-1165

NO. 97-1166

IN THE SUPREME COURT OF TEXAS

Argued September 9, 1998

Decided July 1, 1999

ON DIRECT APPEAL FROM THE250TH DISTRICT COURT OF TRAVIS COUNTY, TEXAS

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[Copyrighted Material Omitted]JUSTICE ABBOTT delivered the opinion of the Court.

In these consolidated direct appeals we consider the constitutionality of sections 71.031(a)(3),71.051, and71.052(b) and (c) of the Texas Civil Practice and Remedies Code.Section 71.031(a)(3) is a borrowing statute, which provides that a foreign plaintiff's action for personal injury or death arising out of state must be brought in Texas within the limitations period provided by the law of the state in which the wrongful act, neglect, or default took place.Several Alabama plaintiffs whose asbestos claims arose in Alabama challenged the constitutionality of section 71.031(a)(3) as applied to them because their claims, which were timely under Texas's statute of limitations, were barred by Alabama's statute of limitations.The trial court held that section 71.031(a)(3) is unconstitutionally retroactive as applied to "any Alabama asbestos plaintiff whose cause of action had accrued under Texas law but was not yet barred as of May 29, 1997," the effective date of the borrowing statute.We consider whether section 71.031(a)(3) is unconstitutionally retroactive, whether it violates the open courts provision of the Texas Constitution, and whether it violates the Privileges and Immunities Clause of Article IV of the United States Constitution.

Section 71.051 is Texas's law of forum non conveniens in all actions for personal injury or death.Although the statute allows a court to dismiss a foreign plaintiff's claim under the doctrine of forum non conveniens, it provides that a court may not stay or dismiss a plaintiff's claim if the plaintiff is a legal resident of Texas.The trial court held that section 71.051 does not violate the Privileges and Immunities Clause, and Plaintiffs challenge that holding on appeal.

Section 71.052 contains provisions requiring a court to dismiss any asbestos claim in which the plaintiff was not a resident of Texas at the time the claim arose and the claim arose outside of Texas.If the asbestos claim was filed on or after January 1, 1997 and was pending on May 29, 1997, the court must, on motion of a defendant, dismiss the claim if the defendant files certain stipulations.If the asbestos claim was filed on or after August 1, 1995, but before January 1, 1997, and was pending on May 29, 1997, the court must, on a defendant's motion and filing of certain stipulations, dismiss the claim unless the plaintiff files a written statement electing to either abate the claim for 180 days to afford the plaintiff an opportunity to file a new claim in another forum or to submit to a cap on punitive damages.The trial court held that sections 71.052(b) and (c), the dismissal provisions, violate the Privileges and Immunities Clause.We consider whether sections 71.052(b) and (c) violate the Privileges and Immunities Clause, and whether section 71.052(b) violates the Equal Protection Clauses of the Texas and United States Constitutions or the special laws provision of the Texas Constitution.

We affirm the trial court's judgment that section 71.051 does not violate the Privileges and Immunities Clause.But, contrary to the trial court, we hold that sections 71.052(b),71.052(c), and71.031(a)(3) do not violate any of the constitutional provisions asserted by Plaintiffs.Accordingly, we affirm in part and reverse in part.

IFacts

Plaintiffs brought five separate lawsuits¹ in Texas against Owens Corning(formerly Owens-Corning Fiberglas Corporation), Pittsburgh Corning, A.P. Green Industries, Armstrong World Industries, CertainTeed Corporation, Dana Corporation, Quigley Company, United States Gypsum, Minnesota Mining & Manufacturing Co., and W.R. Grace & Company-Connecticut ("Owens Corning") and other defendants² for personal injuries resulting from asbestos exposure.Four of the actions (Chandler, Carroll, Carter, and Aday) were filed in August 1995, while the Deford lawsuit was filed on May 5, 1997.All Plaintiffs were citizens and residents of states other than Texas when the alleged exposures occurred and when they filed their lawsuits in Texas.The actions were maintained according to Texas Civil Practice and Remedies Code section 71.031, which governs claims for death or personal injury caused by acts or omissions occurring out of state.

When the plaintiffs filed their suits, section 71.031 provided that an action for damages for death or personal injury to a citizen of another state could be enforced in Texas courts even though the wrongful act, neglect, or default causing the death or injury took place in a foreign state if: (1) a law of the foreign state or of Texas gave a right to maintain an action for damages for the death or injury; and (2) the action was begun within the time provided by Texas law.Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1, sec. 71.031,1985 Tex. Gen. Laws 3242, 3297.In addition, the law then in effect provided that a court could not stay or dismiss an action on the basis of forum non conveniens if it was alleged that harm was caused by exposure to asbestos fibers.Act of Feb. 23, 1993, 73d Leg., R.S., ch. 4, 1, sec. 71.051,1993 Tex. Gen. Laws 10, 12.

A

In early 1997, the Legislature concluded that Texas law was too amenable to claims arising out of state and claims brought by foreign plaintiffs, and determined that this amenability crowded Texas courts with claims having little or no connection to Texas, at the expense of Texas residents.Additionally, the Legislature recognized that the asbestos exception to the forum non conveniens law made Texas an especially popular forum for a huge number of out-of-state asbestos claims.

The Legislature enacted Senate Bill 220, effective May 29, 1997, to address these concerns.Act of May 27, 1997, 75th Leg., R.S., ch. 424,1997 Tex. Gen. Laws 1680.Senate Bill 220 changed Texas law in several significant ways.First, to discourage forum shopping by nonresidents with claims arising out of state, the Legislature amended section 71.031 by adding subsection (a)(3) - the borrowing statute.As amended, section 71.031(a)(3) provides that a plaintiff who is a resident of a foreign state, in an action for damages for death or personal injury, may enforce the action in a Texas court although the wrongful act, neglect, or default causing the death or injury occurred in a foreign state, but only if the action is begun in Texas within the time provided both by Texas law and by the law of the foreign state in which the wrongful act, neglect, or default took place.TEX. CIV. PRAC. & REM. CODE 71.031(a)(3).Thus, section 71.031(a)(3)"borrows" another state's statute of limitations such that a foreign plaintiff whose cause of action for personal injury or wrongful death arose in a foreign state with a shorter limitations period than Texas's must file within the limitations period prescribed by that state's law.

Second, the Legislature amended section 71.051, the statutory forum non conveniens provision, to remove the asbestos exception, thereby permitting courts to dismiss asbestos claims the same as any other claim under the doctrine of forum non conveniens.The Legislature left in place section 71.051's provision exempting from dismissal claims filed by Texas residents.See id. 71.051(e).

Third, the Legislature created section 71.052, which applies only to claims for personal injury or wrongful death in which: (1)the plaintiff was not a Texas resident when the claim arose; (2)the plaintiff's claim arose outside Texas;³ and (3)the plaintiff's claim alleges that asbestos fiber exposure caused the harm.Id. 71.052(a).Section 71.052 applies only to such actions pending on May 29, 1997, the effective date of the Act.Act of May 27, 1997, 75th Leg., R.S., ch. 424, 4(b),1997 Tex. Gen. Laws 1680, 1683.As to these claims, section 71.052(b) provides that "[t]he court, on motion of a defendant, shall dismiss each claim against the defendant that is subject to this section and was filed in this state on or after January 1, 1997, on the filing of a stipulation by the defendant that, for purposes of limitations, the filing of the claim in another forum would relate back to the date each plaintiff filed his claim in this state."TEX. CIV. PRAC. & REM. CODE 71.052(b).Additionally, section 71.052(c) provides that, for each asbestos claim subject to section 71.052 filed on or after August 1, 1995 but before January 1, 1997, the court must dismiss the claim on a defendant's motion unless the plaintiff files a written statement electing either to abate the claim for 180 days in order to file an action in another state, or to retain the claim with a cap on punitive damages.Id. 71.052(c).The court may not dismiss or abate a claim under either section 71.052(b) or 71.052(c) until the defendant files a stipulation that, with respect to a new action filed in another state, the plaintiff may elect to rely on discovery responses already provided.Id. 71.052(f).

B

Owens Corning filed the requisite stipulations and moved to dismiss the Deford Plaintiffs' claims, arguing that those claims were...