Tallman v. W.R. Grace & Company-Conn., 95-1273
| Decision Date | 22 January 1997 |
| Docket Number | No. 95-1273,95-1273 |
| Parties | Prod.Liab.Rep. (CCH) P 14,860 Gloria A. TALLMAN, Executor of the Estate of Robert W. Tallman, Deceased, Appellant, v. W.R. GRACE & CO.--CONN., Appellee, and Owens-Corning Fiberglas Corporation, Owens-Illinois, Inc., and ACandS, Inc., Defendants. |
| Court | Iowa Supreme Court |
Michael J. Galligan, Timm W. Reid, and Richard H. Doyle of Michael J. Galligan Law Firm, P.C., Des Moines, and Phillip C. Vonderhaar of Hedberg, Ward, Owens & Vonderhaar, Des Moines, for appellant.
Michael D. Huppert of Patterson, Lorentzen, Duffield, Timmons, Irish, Becker & Ordway, L.L.P., Des Moines, for appellee.
John D. Ackerman of Heidman, Redmond, Fredregill, Patterson, Schatz & Plaza, L.L.P., Sioux City, for Owens-Corning Fiberglas Corporation. Virginia M. Giokaris of Polsinelli, White, Vardeman & Shalton, P.C., Kansas City, Missouri, and G. Mark Rice of Adams & Howe, P.C., Des Moines, for Owens-Illinois, Inc. and ACandS, Inc.
Considered by LARSON, P.J., and CARTER, LAVORATO, SNELL, and TERNUS, JJ.
This is another asbestos injury case between a construction worker and the manufacturers of asbestos building products. Among other defenses, the manufacturers raised the fifteen-year bar of Iowa Code section 614.1(11) (1993), which is applicable to injuries arising from improvements to real estate. The district court granted summary judgment to one of the defendants, W.R. Grace & Co., because, when the worker was exposed to its asbestos product, the product had already been attached to the real estate and therefore constituted an "improvement" under the statute. The court, however, denied the remaining manufacturers' motions for summary judgment on the ground that there were issues of fact as to whether the worker's exposure occurred before or after the products were attached. The plaintiff requested permission to appeal from the summary judgment for W.R. Grace & Co. The remaining manufacturers requested permission to cross-appeal from the court's denial of their summary judgment motions. We granted permission for the appeals under Iowa Rule of Appellate Procedure 2, and we now affirm on both of them.
Robert Tallman was employed as an electrician on various construction projects when he came in contact with asbestos products used in the construction process. Tallman's asbestos exposure spanned several years and involved various types of asbestos products manufactured, furnished, or applied by these defendants. In 1992 he developed symptoms of mesothelioma, a disease usually caused by asbestos, and died from it in 1995.
In 1968 and 1969, he was exposed to dust from Monokote, a spray fireproofing product supplied by W.R. Grace & Co. Monokote was applied to structural steel and other building surfaces to provide fire protection. Tallman breathed asbestos dust from the Monokote when the excess product fell from the ceiling support wires and when he removed it from inside of electrical boxes in the process of wiring. Defendant ACandS is an insulation contracting company. Tallman worked at a job site in 1966 and 1967 where other workers were installing asbestos-containing insulation labeled with the ACandS name. Defendant Owens-Illinois manufactured a product called Kaylo, which contains asbestos, from 1953 to 1958, and Tallman was exposed to this product in 1956. Another defendant, Owens-Corning, produced Kaylo block and pipe covering, both of which contained asbestos. Tallman worked at several sites where Kaylo was used.
The key in this case is the interpretation of Iowa Code section 614.1(11), our statute of repose, which provides:
In addition to limitations contained elsewhere in this section, an action arising out of the unsafe or defective condition of an improvement to real property based on tort and implied warranty and for contribution and indemnity, and founded on injury to property, real or personal, or injury to the person or wrongful death, shall not be brought more than fifteen years after the date on which occurred the act or omission of the defendant alleged in the action to have been the cause of the injury or death. However, this subsection does not bar an action against a person solely in the person's capacity as an owner, occupant, or operator of an improvement to real property.
Iowa Code § 614.1(11) (1993) (emphasis added).
In Krull v. Thermogas Co., 522 N.W.2d 607, 611-12 (Iowa 1994), we held that, once a gas control valve was installed in a furnace, it became an "improvement" for purposes of this statute. In Buttz v. Owens-Corning Fiberglas Corp., 557 N.W.2d 90, 91 (Iowa 1996), we addressed the same issue raised by the manufacturers' cross-appeal in the present case: whether asbestos products can become an improvement under section 614.1(11) prior to their actual attachment to the real estate. We held in Buttz that, despite an intent by the contractor to ultimately attach a product to the structure, that was not enough to make it an improvement. The key was the actual attachment of the product. Id. at 92. This is the precise issue raised by the manufacturers in their cross-appeal in this case, and because it was rejected in the Buttz case, we summarily affirm on the cross-appeal.
The key to applying section 614.1(11) is whether the asbestos product was an "improvement." The plaintiff raises a question not directly answered by either Krull or Buttz, i.e., whether asbestos, once attached, is an "improvement" even though the asbestos product was not intended to, and did not actually, enhance the value of the property. If not, the plaintiff claims, the asbestos could not be an improvement. Here, the W.R. Grace product, Monokote, was applied as a spray, and excess spray filled electric boxes and adhered to the steel wires supporting the ceilings.
The plaintiff contends that Iowa Code section 614.1 does not apply to it because it is a manufacturer and not a party involved in the actual construction process. In any event, the plaintiff contends, this product as applied in this case did not meet the tests for an improvement set out in Krull.
A. The purpose of section 614.1(11). In arguing that this statute was not intended to apply to manufacturers, the plaintiff points to this explanation attached to the original bill, House File 2442:
The bill provides for a fifteen-year statute...
To continue reading
Request your trial
-
Harder v. Acands, Inc.
...involved in this case were not improvements to real property within the meaning of section 614.1(11) ." Id. In Tallman v. W.R. Grace & Co.-Conn., 558 N.W.2d 208 (Iowa 1997), the court again considered the circumstances in which an asbestos product constitutes an "improvement to real prop......
-
Beverage v. Alcoa, Inc.
...their claims would be barred by the statute of repose if not brought until symptoms appeared. See, e.g. , Tallman v. W.R. Grace & Co.—Conn. , 558 N.W.2d 208, 211 (Iowa 1997) (holding manufacturer of asbestos spray insulation was protected by fifteen-year statute of repose in Iowa Code § 614......
-
State Farm Fire & Cas. Co. v. Air Vents, Inc.
...because the statute did not provide an exception for such attachments.") (citing Krull , 522 N.W.2d at 612 ); Tallman v. W.R. Grace & Company-Conn , 558 N.W.2d 208, 210. Courts have found permanent additions in a wide range of attachments, from a soap dish and fan, to asbestos spray and fur......
-
Jarnagin v. Fisher Controls Intern., Inc.
...must the owner have the intent to make an improvement permanent for it to be considered permanent. See Tallman v. W.R. Grace & Co.-Conn., 558 N.W.2d 208, 211 (Iowa 1997) (intent is an unreliable touchstone for determining whether the material is an improvement). Even though there is no abso......