Waller v. Pittsburgh Corning Corp.

• Citation: 742 F. Supp. 581
• Decision Date: 16 July 1990
• Docket Number: No. 90-1233-K.,90-1233-K.
• Parties: Larry D. WALLER, Plaintiff, v. PITTSBURGH CORNING CORP.; John Crane, Inc.; Garlock, Inc.; Celotex Corp.; and Carey-Canada, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

742 F. Supp. 581

Larry D. WALLER, Plaintiff, v. PITTSBURGH CORNING CORP.; John Crane, Inc.; Garlock, Inc.; Celotex Corp.; and Carey-Canada, Inc., Defendants.

No. 90-1233-K.

United States District Court, D. Kansas.

July 16, 1990.

Ness, Motley, Loadholt, Richardson & Pool, Barnwell, S.C., for plaintiff.

Polsinelli, White, Vardeman & Shalton, Kansas City, Mo., for defendant Pittsburgh Corning Corp.

Gordon N. Myerson, P.C., Kansas City, Mo., for defendant John Crane, Inc.

Foulston & Siefkin, Wichita, Kan., for defendant Garlock, Inc.

Lewis, Rice & Fingersh, Overland Park, Kan., Butler, Vines, Babb & Threadgill, Knoxville, Tenn., for defendants Celotex Corp. and Carey-Canada, Inc.

MEMORANDUM AND ORDER

PATRICK F. KELLY, District Judge.

The present case is an action for damages for personal injuries which the complaint alleges were suffered by the plaintiff, Larry D. Waller, due to exposure to asbestos products manufactured by the defendants. Originally filed in the United States District Court for the Eastern District of Texas, the case was subsequently transferred to this court. Motions for summary judgment have been filed by numerous defendants, including Owens-Corning Fiberglas Corp.; John Crane, Inc.; Fibreboard Corp.; Owens-Illinois, Inc.; Pittsburgh Corning Corp.; Garlock, Inc.; Celotex Corp.; Carey-Canada, Inc.; and Eagle-Picher. The arguments presented by each defendant are generally the same: first, that the plaintiff has failed to produce any evidence of exposure to asbestos products manufactured by the defendant; and second, that the plaintiff's claim is time barred under K.S.A. 60-513(b).

The matter was presented to the court at a hearing on July 9, 1990. At the conclusion of the hearing, the court reserved ruling on the motions by the various parties. At the present time, to the best understanding of the court, several of the manufacturers have independently resolved their differences with the plaintiff, and at the present time five defendants remain in the action: Pittsburgh Corning, Garlock, John Crane, Carey-Canada, and Celotex. For the reasons cited below, the court finds summary judgment should be granted on behalf of these defendants.

Summary judgment is proper, where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, the court must examine all evidence in a light most favorable to the opposing party. McKenzie v. Mercy Hospital, 854 F.2d 365, 367 (10th Cir.1988). The party moving for summary judgment must demonstrate its entitlement to summary judgment beyond a reasonable doubt. Ellis v. El Paso Natural Gas Co., 754 F.2d 884, 885 (10th Cir.1985). The moving party need not disprove plaintiff's claim; it need only establish that the factual allegations have no legal significance. Dayton Hudson Corp. v. Macerich Real Estate Co., 812 F.2d 1319, 1323 (10th Cir.1987).

In resisting a motion for summary judgment, the opposing party may not rely upon mere allegations or denials contained in its pleadings or briefs. Rather, the nonmoving party must come forward with specific facts showing the presence of a genuine issue of material fact for trial and significant probative evidence supporting the allegation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). Once the moving party has carried its burden under Rule 56(c), the party opposing summary judgment must do more than simply show there is some metaphysical doubt as to the material facts. "In the language of the Rule, the nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting Fed.R. Civ.P. 56(e)) (emphasis in Matsushita). One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and the rule should be interpreted in a way that allows it to accomplish this purpose. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The plaintiff, Larry Waller, began work at the American Petrofina Refinery at El Dorado, Kansas in November, 1960. During his first month of employment, Waller worked as a laborer, building scaffolding, handing insulation to carpenters, and mixing mud. Waller also worked on a two-week tower insulation project, during which he was exposed to asbestos products. Waller is unable to recall the brand names or manufacturers of these products.

In December, 1960, Waller transferred to the refinery's light oil laboratory, where he worked for about four months. Until the end of 1962, Waller worked in the refinery's maintenance department as a rigger and boilermaker. During this time, Waller's duties included unloading asbestos materials and the removal of insulation.

At the end of 1962, Waller returned to work in the light oil laboratory, where he worked until 1985. However, Waller also worked for the maintenance department on his days off during intermittent "turnarounds". A turnaround is an overhaul of the refinery involving the replacement of pipes and the cleaning out of the refinery's tower and exchanges, and Waller sometimes had to remove insulation while performing his maintenance duties. At most, Waller worked only four days per year doing turnaround maintenance work. Waller does not recall removing any insulation after 1976.

The first argument advanced by several of the defendants, that there is no evidence of exposure to their respective products, needs not be addressed here. Instead, the court finds that the statute of limitations contained in K.S.A. 60-513(b) controls, and bars, the present action.

The 10-year limitations provision of K.S.A. 60-513(b) was recently the subject of interpretation by the Supreme Court of Kansas, and reinterpretation by the Kansas Legislature. Under Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989), the 10-year limit would apply to bar the claim of the plaintiff, since most of the evidence indicates exposure during the 1960s, and the plaintiff has himself indicated that he has no knowledge of any exposure to insulating materials after 1976. In Tomlinson, the supreme court held that the 10-year limit of K.S.A. 60-513(b) applied to claims for injuries from latent diseases, and that this application was constitutional.

Shortly after the decision in Tomlinson, and in obvious response to that decision, the state legislature approved amendments to K.S.A. 60-513, creating a specific limitations period for latent disease claims. The central question is whether these amendments, signed into law on May 16, 1990, are applicable to the present action. Included within the amendments is a new subsection (e) to 60-513, which seeks to revive actions previously barred under the statute:

Upon the effective date of this act through July 1, 1991, the provisions of this subsection shall revive such causes of action for latent diseases caused by exposure to a harmful material for: (1) Any person whose cause of action had accrued, as defined in subsection (d) on or after March 3, 1987; or (2) any person who had an action pending in any court on March 3, 1989, and because of the judicial interpretation of the ten-year limitation contained in subsection (b) of K.S.A. 60-513, and amendments thereto, as applied to latent disease caused by exposure to a harmful material the: (a) Action was dismissed; (b) dismissal of the action was affirmed; or (c) action was subject to dismissal. The intent of this subsection is to revive causes of action for latent diseases caused by exposure to a harmful material which were barred by interpretation of K.S.A. 60-513, and amendments thereto, in effect prior to this enactment.

The issue in the present case is whether the amendments to 60-513(b) may be constitutionally applied to expand the time in which the action may be brought. It should be noted that the plaintiff's brief in response to the present motions completely ignores the issue of constitutionality. Instead, the plaintiff's brief raises two separate issues, which will be discussed below.

Most of the state courts addressing the issue have held that the legislation which attempts to revive claims that have been previously time barred impermissibly interferes with vested rights of the defendant, and thus violates due process. These courts have taken the position that the passing of the limitations period creates a vested right of defense in the defendant, which cannot be removed by subsequent legislative action expanding the limitations period. See Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933); Cheswold Volunteer Fire Co. v. Lambertson Constr. Co., 489 A.2d 413 (Del.1984); Mazda Motors of America, Inc. v. S.C. Henderson & Sons, Inc., 364 So.2d 107 (Fla.Dist.Ct.App.1978), cert. denied, 378 So.2d 348 (1979); Wilson v. All-Steel, Inc., 87 Ill.2d 28, 56 Ill.Dec. 897, 428 N.E.2d 489 (1981); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); Ayo v. Control Insulation Corp., 477 So.2d 1258 (La.Ct.App. 1985), cert. denied, 481 So.2d 1349 (1986); Dobson v. Quinn Freight Lines, 415 A.2d 814 (Me.1980); Zitomer v. State, 21 Md. App. 709, 321 A.2d 328 (1974), rev'd on other grounds, 275 Md. 534, 341 A.2d 789 (1975), cert. denied, 423 U.S. 1076, 96 S.Ct. 862, 47 L.Ed.2d 87 (1976); Williams v. Wellman-Power Gas, Inc., 174 Mont. 387, 571 P.2d 90 (1977); Grand Island School Dist. No. 2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979); Colony Hill Condominium I Ass'n v. Colony Co., 70 N.C. App. 390, 320 S.E.2d 273 (1984), cert. denied, 312 N.C. 796, 325 S.E.2d 485 (1985); Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447 (1922); In re...