School Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc.
| Decision Date | 24 September 1993 |
| Docket Number | 92-35549,Nos. 91-36275,92-35127,92-35552,s. 91-36275 |
| Parties | , 85 Ed. Law Rep. 1070, Prod.Liab.Rep.(CCH)P 13,640 SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania corporation, et al.; E.J. Bartells Company, a Washington corporation; A.P. Green Refractories Company, Defendants-Appellees. SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania corporation, et al., Defendants, and Fibreboard Corp., a Delaware corporation as successor in interest to The Paraffine Companies, Inc., Pabco Products, Inc., Fibreboard Paper Products Corporation, Plant Rubber & Asbestos Works and Plant Rubber & Asbestos Co., Defendants-Appellees. SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania Corporation; Armstrong Cork Company, Inc., a Delaware Corporation; Atlas Asbestos Company, Inc., a Canadian Corporation, et al., Defendants, and Keene Corporation, a New York Corporation individually and as successor in interest to the Baldwin Ehret Hill Company, Defendant-Appellee. SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania Corporation; Armstrong Cork Company, Inc., a Delaware Corporation; Atlas Asbestos Company, Inc., a Canadian Corporation, et al., Defendants, and US Gypsum Company, a Delaware Corporation, Defendant-Appellee. SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania Corporation; Armstrong Cork Company, Inc., a Delaware Corporation; Atlas Asbestos Company, Inc., a Canadian Corporation, et al., Defendants, and Owens-Corning Fiberglass Corporation, Defendant-Appellee. SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant, v. ACandS, INC., a Pennsylvania Corporation; Armstrong Cork Company, Inc., a Delaware Corporation; Atlas Asbestos Company, Inc., a Canadian Corporation, et al., Defendants, and Flintkote Company, a Delaware Corporation, Defendant-Appellee. SCHOOL DISTRICT NO. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kevin N. Keaney, Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, OR, for plaintiff-appellant.
Ronald Scott Bemis, Stafford, Frey, Cooper and Stewart, Seattle, WA, and Christopher A. Rycewicz, Stafford, Frey, Cooper & Stewart, Portland, OR, for defendant-appellee Fibreboard.
Joseph C. Arellano and Garr M. King, Kennedy, King & Zimmer, Portland, OR, for defendant-appellee Keene.
Stuart D. Jones and I. Franklin Hunsaker, Bullivant, Houser, Bailey, Pendergrass & Hoffman, Portland, OR, for defendant-appellee Flintkote.
Katherine Steele, Madden, Poliak, MacDougall & Williamson, and John Dudrey Duane A. Bosworth, Davis Wright Tremaine, Portland, OR, for defendants-appellees Armstrong Cork Co., Inc. and Armstrong World Industries, Inc.
Williams, Fredrickson, Stark & Weisensee, Seattle, WA, for defendant-appellee Bartells.
Laurie D. Kohli, George, Hull, Porter & Kohli, P.S., Seattle, WA, and Janice M. Stewart, McEwen, Gisvold, Rankin & Stewart, Portland, OR, for defendant-appellee ACandS.
Rex Armstrong and Richard A. Hayden, Bogle & Gates, Portland, OR, and Thomas M. Kittredge, Morgan, Lewis & Bockius, Philadelphia, PA, for defendant-appellee U.S. Gypsum.
William M. Tomlinson and James L. Dumas, Lindsay, Hart, Neil & Weigler, Portland, OR, for defendant-appellee Owens-Corning.
Appeals from the United States District Court for the District of Oregon.
Before: FARRIS, FERGUSON and THOMPSON, Circuit Judges.
These consolidated appeals arise from complaints filed by School District 1J, Multnomah County, Oregon (the "School District"). The School District sought to recover the cost of removing asbestos-containing products from over 100 school buildings. The defendants are installers and manufacturers of asbestos products. In a series of rulings in these cases, the district court granted summary judgment and partial summary judgment in favor of two installers and six manufacturers. It ordered final judgments entered as to those matters pursuant to Federal Rule of Civil Procedure 54(b). The School District appeals. We have jurisdiction under 28 U.S.C. Sec. 1291 and we affirm.
"A grant of summary judgment is reviewed de novo to determine, viewing the evidence in the light most favorable to the nonmoving party, whether there exist any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir.1990).
ACandS, Inc. and E.J. Bartells, Co., two of the installer defendants, installed asbestos-containing products in the School District's school buildings beginning in the 1940s. ACandS's last installation was in 1962; Bartells's in 1970. The School District sued these installers in 1989. The district court held that the Oregon statute of ultimate repose for contractors, Or.Rev.Stat. ("O.R.S.") Sec. 12.135(1) (1991), 1 applied to ACandS and Bartells. Under this statute, suits against contractors for defects in their work must be commenced within ten years of substantial completion or abandonment of the project. Because the School District did not file its complaint against ACandS and Bartells within ten years from the date they last installed asbestos in the school buildings, Oregon's statute of ultimate repose for contractors barred the School District's claims.
The School District contends that O.R.S. Sec. 12.135(1) does not apply to ACandS and Bartells because they were not contractors, but rather they were distributors or suppliers of asbestos products. The School District contends its claims are product liability claims, which are exempt from any statute of ultimate repose. Alternatively, the School District argues that the Oregon statute of ultimate repose for contractors, which was enacted in 1971, does not apply retroactively
to the work done by ACandS and Bartells, who completed their installation of asbestos in the school buildings by 1962 and 1970, respectively.
During the same years that they installed asbestos in the school buildings, ACandS and Bartells also sold asbestos products directly to some consumers, without participating in any actual installation. It is undisputed, however, that the only asbestos ACandS and Bartells ever supplied to the School District was asbestos they installed in school buildings pursuant to their installation contracts. ACandS and Bartells are covered by Oregon's statute of ultimate repose for contractors, which applies to "person[s] ... having performed the construction, alteration or repair of any improvement to real property." O.R.S. Sec. 12.135(1).
In resisting retroactive application of O.R.S. Sec. 12.135(1), the School District relies on a number of cases which have held that "retroactive application of a change in the limitations period is not permitted under Oregon law absent clear contrary legislative intent." Boag v. Chief of Police, City of Portland, 669 F.2d 587, 588 n.* (9th Cir.), cert. denied, 459 U.S. 849, 103 S.Ct. 109, 74 L.Ed.2d 97 (1982). See alsoBoone v. Wright, 314 Or. 135, 836 P.2d 727, 729 (1992); Bergstad v. Thoren, 86 Or.App. 70, 738 P.2d 223, 225 (1987).
These cases apply only to limitations periods, which are distinguishable from statutes of ultimate repose such as section 12.135(1). In the typical limitations context, when an injury occurs the injured party gains a right to seek a recovery. This right may be exercised within the time frame of the applicable limitations period. Before applying new legislation retroactively to diminish this limitations period, Oregon requires retroactivity to be expressly intended.
Unlike a limitations period, O.R.S. Sec. 12.135(1) is a statute of ultimate repose which runs from the date of substantial completion or abandonment of construction without regard to the occurrence of any actual loss or injury. The statute reflects the policy judgment of Oregon to relieve a contractor of the risk of loss from construction projects after a substantial period of time, here ten years. As the Oregon Supreme Court stated in Josephs v. Burns, 260 Or. 493, 491 P.2d 203, 208 (1971):
It is in the interest of the public that there be a definite end to the possibility of future litigation resulting from past actions. It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.
In Josephs, the Oregon Supreme Court applied a statute of ultimate repose retroactively even in the absence of clear legislative direction to do so. There, the court held that O.R.S. Sec. 12.115(1) barred the plaintiffs' claims. That statute provided: "In no event shall any action for negligent injury to person or property of another be commenced more than 10 years from the date of the act or omission complained of." Id. The alleged injury in Josephs was the collapse of a roof in 1969. The roof had been designed and constructed by the defendants in 1951. The statute of ultimate repose (O.R.S. Sec. 12.115(1)) was enacted in 1967 and was held to cut off the plaintiffs' claim. See alsoPhilpott v. A.H. Robins Co., Inc., 710 F.2d 1422, 1425 (9th Cir.1983) (...
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