Pendzsu v. Beazer East, Inc.

• Decision Date: 11 October 1996
• Docket Number: Docket Nos. 181268,A-B,181271
• Citation: 557 N.W.2d 127,219 Mich.App. 405
• Parties: , Prod.Liab.Rep. (CCH) P 15,055 Arpad A. PENDZSU and Margiore Pendzsu, Deceased, Plaintiffs-Appellants, v. BEAZER EAST, INC., a Delaware Corporation, in its own right and as successor in interest to Koppers Company, Incorporated, Defendant-Appellee, and Anchor Packing Company, a Delaware Corporation; Armstrong World Industries, Inc., as successor in interests to Armstrong Cork Company and Armstrong Contracting Supply (a/k/a A. C & S.), a Pennsylvania Corporation; Babcock & Wilcox Company, a Delaware Corporation; Brown Insulation Company, a Michigan Corporation; M.H. Detrick Company, a Delaware Corporation; Flexitallic Gasket Co., Inc., a Connecticut Corporation; GAF Corporation, in its own right and as successor in interest to the Ruberoid Company, a Delaware Corporation; Garlock, Inc., an Ohio Corporation; A.P. Green Refractories Company, a Delaware Corporation; Keene Corporation, in its own right and as successor in interest to Baldwin-Ehret-Hill, Inc., Baldwin-Hill, Inc., and Mundet Cork Corporation, a New York Corporation; Owens-Corning Fiberglass Corporation, a Delaware Corporation; Owens-Illinois, Inc., an Ohio Corporation; Pittsburgh-Corning Corporation, a Pennsylvania Corporation; W.R. Grace & Co.--Conn., in its own right and as successor to Zonolite Co., a Connecticut Corporation; Fibreboard Corp., in its own right and as successor to Pabco Co., a Delaware Corporation; National Gypsum Co., a Delaware Corporation; United States Gypsum Co., a Delaware Corporation; General Refractories, a Pennsylvania Corporation; Dresser Industries, a/k/a Harbison Walker Refractories, a Delaware Corporation; North American Refractories, an Ohio Corporation; Kaiser Aluminum and Chemical Corp., in its own right and as successor to Kaiser Refractories, a Division of Kaiser Aluminum, a Delaware Corporation; Quigley Company, Inc., a New York Corporation; Crown, Cork & Seal Company, Inc., in its own right and as successor in interest to Mundet Cork Corporation, a New York Corporati
• Court: Court of Appeal of Michigan — District of US

Page 127

557 N.W.2d 127

219 Mich.App. 405, Prod.Liab.Rep. (CCH) P 15,055

Arpad A. PENDZSU and Margiore Pendzsu, Deceased, Plaintiffs-Appellants, v. BEAZER EAST, INC., a Delaware Corporation, in its own right and as successor in interest to Koppers Company, Incorporated, Defendant-Appellee,

and

Anchor Packing Company, a Delaware Corporation; Armstrong

World Industries, Inc., as successor in interests to

Armstrong Cork Company and Armstrong Contracting Supply

(a/k/a A. C & S.), a Pennsylvania Corporation; Babcock &

Wilcox Company, a Delaware Corporation; Brown Insulation

Company, a Michigan Corporation; M.H. Detrick Company, a

Delaware Corporation; Flexitallic Gasket Co., Inc., a

Connecticut Corporation; GAF Corporation, in its own right

and as successor in interest to the Ruberoid Company, a

Delaware Corporation; Garlock, Inc., an Ohio Corporation;

A.P. Green Refractories Company, a Delaware Corporation;

Keene Corporation, in its own right and as successor in

interest to Baldwin-Ehret-Hill, Inc., Baldwin-Hill, Inc.,

and Mundet Cork Corporation, a New York Corporation;

Owens-Corning Fiberglass Corporation, a Delaware

Corporation; Owens-Illinois, Inc., an Ohio Corporation;

Pittsburgh-Corning Corporation, a Pennsylvania Corporation;

W.R. Grace & Co.--Conn., in its own right and as successor

to Zonolite Co., a Connecticut Corporation; Fibreboard

Corp., in its own right and as successor to Pabco Co., a

Delaware Corporation; National Gypsum Co., a Delaware

Corporation; United States Gypsum Co., a Delaware

Corporation; General Refractories, a Pennsylvania

Corporation; Dresser Industries, a/k/a Harbison Walker

Refractories, a Delaware Corporation; North American

Refractories, an Ohio Corporation; Kaiser Aluminum and

Chemical Corp., in its own right and as successor to Kaiser

Refractories, a Division of Kaiser Aluminum, a Delaware

Corporation; Quigley Company, Inc., a New York Corporation;

Crown, Cork & Seal Company, Inc., in its own right and as

successor in interest to Mundet Cork Corporation, a New York

Corporation; F.B. Wright Co., a Michigan Corporation;

Grant Wilson, Inc., an Illinois Corporation; Plibrico

Company, a Delaware Corporation; Arthur J. Peacock &

Company, a Michigan Corporation; Rutland Fire Clay Company,

a Vermont Corporation; Chicago Firebrick Company, an

Illinois Corporation; Adience, Inc., Successor in interest

to Adience Company, LP as successor to BMI, Inc., a Delaware

Corporation; Rex Roto Corporation, in its own right and as

successor in interest to Rex Clay Products Company, a

Michigan Corporation; Detroit Edison Company, a Michigan

Corporation; National Steel Corporation, a Delaware

Corporation; MLX Corporation, f/k/a McLouth Steel

Corporation, a Michigan Corporation; Midland Ross

Corporation, in its own right and as successor in interest

to Surface Combustion, an Ohio Corporation; Combustion

Engineering, in its own right and as successor in interest

to Combustion Engineering Refractories Division, Walsh

Refractories and Refractory & Insulation Corp., a Delaware

Corporation; Thiem Corporation, a Delaware Corporation, in

its own right and as successor in interest to Universal

Refractories, Inc.; Rapid American Corporation, in its own

right and as successor to Philip Carey Manufacturing

Company, Panacon Corporation, and Philip Carey Corporation,

a Delaware Corporation; Adience, Inc., as successor in

interest to Adience Company, LP, BMI, Inc., and Furnco

Construction Corporation, a Delaware Corporation; Hi-Temp

Products, Inc., in its own right and as successor in

interests to Asbestos Specialties Co, a Michigan

Corporation; A-Best Products Company, an Ohio Corporation;

and Schad Boiler Setting Company, (d/b/a Schad Refractory

Construction Company) a Michigan Corporation; Jointly and

Severally, Defendants.

Amon McGHEE, Jr., Personal Representative of the Estate of Amon McGhee, Sr., Deceased, Plaintiff-Appellant, v. BEAZER EAST, INC., a Delaware Corporation, in its own right and as successor in interest to Koppers Company, Incorporated, Defendant-Appellee,

and

Anchor Packing Company, a Delaware Corporation; Armstrong

World Industries, Inc., as successor in interests to

Armstrong Cork Company and Armstrong Contracting Supply

(a/k/a A. C & S.), a Pennsylvania Corporation; Babcock &

Wilcox Company, a Delaware Corporation; Brown Insulation

Company, a Michigan Corporation; M.H. Detrick Company, a

Delaware Corporation; Flexitallic Gasket Co., Inc., a

Connecticut Corporation; GAF Corporation, in its own right

and as successor in interest to the Ruberoid Company, a

Delaware Corporation; Garlock, Inc., an Ohio Corporation;

A.P. Green Refractories Company, a Delaware Corporation;

Keene Corporation, in its own right and as successor in

interest to Baldwin-Ehret-Hill, Inc., Baldwin-Hill, Inc.,

and Mundet Cork Corporation, a New York Corporation;

Owens-Corning Fiberglass Corporation, a Delaware

Corporation; Owens-Illinois, Inc., an Ohio Corporation;

Pittsburgh-Corning Corporation, a Pennsylvania Corporation;

W.R. Grace & Co.--Conn., in its own right and as successor

to Zonolite Co., a Connecticut Corporation; Fibreboard

Corp., in its own right and as successor to Pabco Co., a

Delaware Corporation; National Gypsum Co., a Delaware

Corporation; United States Gypsum Co., a Delaware

Corporation; General Refractories, a Pennsylvania

Corporation; Dresser Industries, a/k/a Harbison Walker

Refractories, a Delaware Corporation; North American

Refractories, an Ohio Corporation; Kaiser Aluminum and

Chemical Corp., in its own right and as successor to Kaiser

Refractories, a Division of Kaiser Aluminum, a Delaware

Corporation; Quigley Company, Inc., a New York Corporation;

Crown, Cork & Seal Company, Inc., in its own right and as

successor in interest to Mundet Cork Corporation, a New York

Corporation; F.B. Wright Co., a Michigan Corporation;

Grant Wilson, Inc., an Illinois Corporation; Plibrico

Company, a Delaware Corporation; Arthur J. Peacock &

Company, a Michigan Corporation; Rutland Fire Clay Company,

a Vermont Corporation; Chicago Firebrick Company, an

Illinois Corporation; Adience, Inc., Successor in interest

to Adience Company, LP as successor to BMI, Inc., a Delaware

Corporation; Rex Roto Corporation, in its own right and as

successor in interest to Rex Clay Products Company, a

Michigan Corporation; Detroit Edison Company, a Michigan

Corporation; National Steel Corporation, a Delaware

Corporation; MLX Corporation, f/k/a McLouth Steel

Corporation, a Michigan Corporation; Midland Ross

Corporation, in its own right and as successor in interest

to Surface Combustion, an Ohio Corporation; Combustion

Engineering, in its own right and as successor in interest

to Combustion Engineering Refractories Division, Walsh

Refractories and Refractory & Insulation Corp., a Delaware

Corporation; Thiem Corporation, a Delaware Corporation, in

its own right and as successor in interest to Universal

Refractories, Inc.; Rapid American Corporation, in its own

right and as successor to Philip Carey Manufacturing

Company, Panacon Corporation, and Philip Carey Corporation,

a Delaware Corporation; Adience, Inc., as successor in

interest to Adience Company, LP, BMI, Inc., and Furnco

Construction Corporation, a Delaware Corporation; Hi-Temp

Products, Inc., in its own right and as successor in

interests to Asbestos Specialties Co, a Michigan

Corporation; A-Best Products Company, an Ohio Corporation;

and Schad Boiler Setting Company, (d/b/a Schad Refractory

Construction Company) a Michigan Corporation; Jointly and

Severally, Defendants.

Docket Nos. 181268, 181271.

Court of Appeals of Michigan.

Submitted June 19, 1996, at Detroit.

Decided Oct. 11, 1996, at 9:25 a.m.

Released for Publication Dec. 23, 1996.

Zamler, Mellen & Shiffman, P.C. by Neil A. Kay and Daryl Royal, of Counsel, Dearborn, for plaintiffs-appellants.

Still, Nemier, Tolari & Landry, P.C. by Thomas S. McLeod and Michelle E. Mathieu, Farmington Hills, for defendant-appellee.

Before WAHLS, P.J., and MURPHY and C.D. CORWIN, ^* JJ.

WAHLS, Presiding Judge.

Plaintiffs' appeal as of right from the trial court's granting of defendant's motions for summary disposition in these asbestos-related actions. We affirm.

Plaintiff Arpad Pendzsu worked as a truck driver, cement mixer, and warehouse worker for Standard Fuel Engineering and Zero Refractories. During the course of his employment, he delivered materials and worked near projects at buildings owned by Ford Motor Company and National Steel Corporation, Great Lakes Division. Pendzsu alleges that his work required him to work in areas where asbestos-containing materials were used and that this exposed him to harmful asbestos fibers. Pendzsu was diagnosed with asbestosis on October 30, 1991.

Amon McGhee, Sr., worked as a laborer-maintenance at Great Lakes Steel from 1968 to 1990. During the course of his employment, McGhee worked near furnaces where asbestos-covered steam lines were located. He alleges that he was exposed to airborne asbestos fibers during procedures when the furnaces were rebuilt. He was diagnosed with lung cancer on April 7, 1990.

Defendant Beazer East, Inc. (hereinafter defendant), is the successor in interest to Koppers Company, Inc. In the early 1930s, Koppers Company was the contractor for the installation of two coke ovens at the Ford Rouge Plant. Koppers relined the Ford Rouge coke ovens in the 1960s and in 1979. In addition, Koppers performed relining and enlargement of blast furnaces and coke ovens at Great Lakes Steel in 1973.

On December 23, 1992, Pendzsu filed suit against defendant and forty-two other named defendants, claiming damages for products liability. On June 30, 1993, Amon McGhee, Jr., as personal representative of the estate of Amon McGhee, Sr., filed suit against defendant and twenty-seven other named defendants, claiming damages for products liability. On September 19, 1994, defendant filed a motion for summary disposition pursuant to MCR 2.116(C)(7), stating that plaintiffs' claims...