Rubley v. Keene Corp.

• Decision Date: 17 December 1985
• Docket Number: No. BF-379,BF-379
• Citation: 480 So.2d 675,10 Fla. L. Weekly 2779
• Parties: 10 Fla. L. Weekly 2779 Emil Lee RUBLEY and Edna Rubley, his wife, Appellants, v. KEENE CORPORATION, etc., et al., Appellees.
• Court: Florida District Court of Appeals

Page 675

480 So.2d 675

10 Fla. L. Weekly 2779

Emil Lee RUBLEY and Edna Rubley, his wife, Appellants, v. KEENE CORPORATION, etc., et al., Appellees.

No. BF-379.

District Court of Appeal of Florida First District.

Dec. 17, 1985.

Wayne Hogan, Jacksonville, for appellants.

Norwood S. Wilner and Michael J. Marees of Zisser, Robinson, Spohrer, Wilner & Harris, P.A., Jacksonville, for Keene Corp. and Keene Bldg. Products Corp., appellees.

John F. Harper of Pitts, Eubanks, Hannah, Hilyard & Marsee, P.A., Orlando, for Pittsburgh Corning Corp., appellee.

JOANOS, Judge.

The Rubleys appeal summary final judgments entered in favor of Keene Corporation ("Keene") and Pittsburgh Corning Corporation ("PCC") in suits by the Rubleys against those companies for damages associated with Mr. Rubley having contracted an asbestos-related disease. Because Keene and PCC did not affirmatively demonstrate the absence of a genuine issue of material fact, we reverse and remand for further proceedings.

The Rubleys filed a complaint against Keene, PCC and other asbestos producing companies alleging Mr. Rubley was exposed to their asbestos containing products while working as a pipefitter from 1940 to 1978 and at Brookley Field in Mobile, Alabama, and Jacksonville NAS, his last two places of employment. The Rubleys further alleged the companies knew or should have known of harmful consequences of exposure to foreseeable users such as Rubley, and the companies breached a duty to Rubley by failing to adequately warn of potential harm from exposure, failing to provide reasonable instructions for safe use of the products, failing to warn of steps to take to reduce harmful effects of previous exposure, and continuing to design, manufacture, and market asbestos containing products after it became feasible to design, manufacture, and market comparable insulation without asbestos. The Rubleys alleged that as a direct and proximate result of the above, Mr. Rubley developed an asbestos-related disease.

The basis for Keene's and PCC's allegation on motion for summary judgment that there was no proof of exposure to their products was Mr. Rubley's deposition testimony that he personally could not say whether Keene's and PCC's products had been used at the jobsites. The only products he personally recalled being at the jobsites were manufactured by Johns-Manville. He had also contacted Mr. Sims, an insulator at Jacksonville NAS, who mentioned that products from Johns-Manville, Phillip Carey, and Kaylo had been used. In his deposition, Mr. Rubley also said his efforts to determine what products were used in Mobile from 1947-1966 had been unsuccessful.

This deposition testimony of Mr. Rubley does not constitute affirmative evidence that the products in question were not used at the alleged jobsites, and it is insufficient to establish the non-existence of a genuine issue of material fact as to whether Keene's and PCC's products were used at those sites, see Holl v. Talcott, 191 So.2d 40 (Fla.1966). In order to prevail on summary judgment at this point in the litigation, Keene and PCC would have to offer affirmative evidence that their products were not used at the jobsites at the time in question or that for some reason it was impossible that Mr. Rubley was exposed to their products at those sites. "The burden of the movant in a motion for summary judgment is not simply to show that the facts support his theory of the case but rather to demonstrate that the facts show that the party moved against cannot prevail," Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982). At this stage of the litigation it is not required that...