Owens Corning Fiberglass Corp. v. Cobb

• Citation: 754 N.E.2d 905
• Decision Date: 10 September 2001
• Docket Number: No. 49S04-0001-CV-00033.,49S04-0001-CV-00033.
• Parties: OWENS CORNING FIBERGLASS CORP., Appellant/Cross-Appellee (Defendant below), v. David COBB and Melissa Hinds, As Personal Representatives of the Estate of Kenneth Cobb, Deceased.
• Court: Supreme Court of Indiana

754 N.E.2d 905

OWENS CORNING FIBERGLASS CORP., Appellant/Cross-Appellee (Defendant below), v. David COBB and Melissa Hinds, As Personal Representatives of the Estate of Kenneth Cobb, Deceased.

No. 49S04-0001-CV-00033.

Supreme Court of Indiana.

September 10, 2001.

George E. Purdy, George T. Patton, Stephanie F. Holtzlander, J. Taggart Birge, Bose, McKinney, & Evans, Indianapolis, IN, Attorneys for Appellant/Cross-Appellee.

Julie Blackwell Gelinas, Nelson D. Alexander, T. Joseph Alexander, Lock, Reynolds, Boyd, & Weisell, Indianapolis, IN, James D. Johnson, Mattingly, Rudolph, Fine, & Porter, LLP, Evansville, IN, Attorneys for Amicus Curiae, Defense Trial Counsel of Indiana.

Nancy G. Endsley, Landman & Beatty, Indianapolis, IN, Linda George, W. Russell Sipes, Laudig, George, Rutherford, & Sipes, Allard A. Allston, III, Timothy Eble, Ness, Motley, Loadholt, Richardson & Poole, Charleston, SC, Attorneys for Appellees/Cross-Appellants. James O. McDonald, Everett, Everett, & McDonald, Max E. Goodwin, Hansford C. Mann, Bruce D. Aukermann, Mann Law Firm, Terre Haute, IN, Attorneys for Amicus Curiae, Indiana Trial Lawyers Association.

William R. Groth, Fillenwarth, Dennerline, Groth, & Towe, Indianapolis, IN, Attorney for Amicus Curiae, Indiana State AFL-CIO.

ON PETITION TO TRANSFER

SULLIVAN, Justice.

A jury awarded plaintiff Kenneth Cobb damages, finding that asbestos manufactured by Owens Corning caused him serious illness. We find that there was sufficient evidence of exposure to Owens Corning's asbestos to permit Cobb to present his case to the jury. But we reverse the jury award because the trial court incorrectly prohibited Owens Corning from presenting evidence that at least one other "nonparty" manufacturer may also have been at fault.

Background

Kenneth Cobb worked as a pipe fitter from 1955 until he had to retire in 1995 because he was diagnosed with lung cancer. Prior to developing lung cancer, Cobb was diagnosed with asbestosis in October 1989.

Cobb specialized in working on refrigeration, air conditioning and heating systems, and pneumatic control systems. For 40 years, Cobb's work required that he remove and replace asbestos insulation and wallboard, walk on asbestos blankets, disrupt asbestos-containing insulation as he worked on various systems, and cut and fit asbestos tubing, pipe, and sheets.

On July 24, 1996, Cobb filed a complaint against 33 manufacturers or distributors of asbestos, including Owens Corning Fiberglas Corporation ("Owens Corning"). Cobb claimed that the defendants:

produced, sold and otherwise put into, or caused to be put into, the stream of interstate commerce, asbestos and asbestos-containing materials which Defendants. . . . knew, or in the exercise of ordinary care should have known were deleterious, poisonous and highly harmful to [Cobb's] body, lungs, respiratory system, skin and health. [Cobb] was exposed to and inhaled, ingested or otherwise absorbed great amounts of asbestos fibers causing him to develop the asbestos disease, asbestosis, and lung cancer.

Cobb sought both compensatory and punitive damages under "product liability theories of negligence, strict liability and breach of warranty." In July 1996, Cobb also sought and was granted an expedited jury trial because his lung cancer had metastasized to his brain and he did not have a long life expectancy.

Owens Corning filed its answer on August 19, 1996. Among the 34 affirmative defenses Owens Corning asserted, it reserved the right to object to any settlement and subsequent dismissal of any defendant. Owens Corning also asserted a reserved right to amend its answer to "specifically delineate those defendants as settling non-party defendants, to request that the court add those defendants to any verdict form submitted to the jury, and to claim credit for any amounts received by the plaintiff from those defendants."

On September 26, 1997, Cobb filed a motion for partial summary judgment against Owens Corning as to its affirmative defenses, asserting that Owens Corning had not presented sufficient evidence to support them. On November 4, 1997, the trial court granted Cobb's motion for partial summary judgment with respect to all of the affirmative defenses set out in Owens Corning's original answer except for the defense of contributory fault. Also on September 26, 1997, Owens Corning filed a motion for summary judgment based upon lack of product identification, arguing that, in his deposition, Cobb had failed "to provide any evidence proving that he was exposed to asbestos-containing products manufactured or distributed" by Owens Corning. On October 28, 1997, the trial court denied without comment Owens Corning's motion for summary judgment based upon lack of product identification. The trial court's ruling against Owens Corning on this motion is one of the two issues in this appeal.

On October 15, 1997, Owens Corning also filed a motion for leave to amend its answer by adding as identified non-parties the names of the defendants with whom Cobb had settled, the Johns-Manville Trust, and other entities which caused or contributed to Cobb's injuries and had not been joined as defendants. In its order issued November 4, 1997, the trial court granted Owens Corning's motion to amend its answer as to the non-party defense of one non-party, Rutland Fire Clay, but denied it in all other respects. The trial court's ruling against Owens Corning on this motion is the other of the two issues in this appeal.

After an eight-day trial in November 1997, a jury rendered its verdict in favor of Cobb. The jury awarded Cobb $689,782 in compensatory damages, (which was offset by $145,100 that had previously been paid to Cobb by other defendants), $15,000,000 in punitive damages, and $100 in court costs.¹ Owens Corning appealed the trial court's rulings on the product identification and non-party defense motions. The Court of Appeals reversed the trial court's judgment on the product identification issue, directing the trial court to enter an order granting Owens Corning's motion for summary judgment, and rendering the non-party defense issue moot. See Owens Corning Fiberglas Corp. v. Cobb, 714 N.E.2d 295, 303-04 (Ind.Ct.App.1999). Having previously granted transfer, we now review the trial court's rulings on the parties' product identification and non-party defense motions.

Additional facts will be provided as necessary.

Discussion

Our standard of review for summary judgment appeals is well established. An appellate court faces the same issues that were before the trial court and follows the same process. See Winkler v. V.G. Reed & Sons, Inc., 638 N.E.2d 1228, 1231 (Ind.1994) (citing Greathouse v. Armstrong, 616 N.E.2d 364, 367 (Ind.1993)). The party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. See Greathouse, 616 N.E.2d at 365 (citing Dept. of Revenue v. Caylor-Nickel Clinic, 587 N.E.2d 1311, 1313 (Ind.1992)). When a trial court grants summary judgment, we carefully scrutinize that determination to ensure that a party was not improperly prevented from having its day in court. Id.; Estate of Shebel ex rel. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind.1999).

Summary judgment is appropriate only if the pleadings and evidence sanctioned by the trial court 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." Ind. Trial Rule 56(C); see also Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). On a motion for summary judgment, all doubts as to the existence of material issues of fact must be resolved against the moving party. See T.R. 56(C); see also Butler v. City of Peru, 733 N.E.2d 912, 915 (Ind.2000); Stapinski v. Walsh Const. Co., 272 Ind. 6, 395 N.E.2d 1251, 1253 (1979). Additionally, all facts and reasonable inferences from those facts are construed in favor of the nonmoving party. Stapinski v. Walsh Const. Co., 395 N.E.2d at 1253. If there is any doubt as to what conclusion a jury could reach, then summary judgment is improper. See Hall Bros. Const. Co., Inc. v. Mercantile Nat'l Bank of Indiana, 642 N.E.2d 285, 289 (Ind.Ct.App.1994) ("If a jury could come to different conclusions from the undisputed facts, then summary judgment is inappropriate."); see also Bochnowski v. Peoples Fed. Sav. & Loan Ass'n, 571 N.E.2d 282, 285 (Ind.1991); Woodward Ins., v. White, 437 N.E.2d 59, 62 (Ind.1982) ("Summary judgment should not be granted if the facts give rise to conflicting inferences which would alter the outcome.").

I

Owens Corning argues that it was wrongfully denied summary judgment because Cobb had failed "to provide any evidence proving that he was exposed to asbestos-containing products manufactured or distributed" by Owens-Corning. We do not address whether Owens Corning demonstrated "the absence of any genuine issue of fact as to a determinative issue," Jarboe v. Landmark Comm. Newspapers of Indiana, Inc., 644 N.E.2d 118, 123 (Ind.1994), because we find that Cobb did present sufficient evidence to establish a genuine issue of material fact as to exposure.

Owens Corning contends that the record at summary judgment showed that "Cobb could not identify a single occasion at which he had been exposed to Kaylo." (Br. of Appellant/Cross-Appellee in Opp'n to Pet.to Transfer at 5.) Therefore, according to Owens Corning, one could only speculate as to whether Cobb had been exposed to Owens Corning's product, and "testimony based on conjecture or speculation is insufficient to support a claim." (Id. at 7.)

Cobb presented evidence that he was exposed to Kaylo asbestos when he worked as a pipe fitter for the Indianapolis Public Schools (IPS).² In his deposition, Cobb stated that while working for IPS he worked at multiple sites where Kaylo asbestos products were being used. He remembers seeing the boxes of the Kaylo...