Welch v. Celotex Corp., No. 90-9173
| Court | United States Courts of Appeals. United States Court of Appeals (11th Circuit) |
| Writing for the Court | Before KRAVITCH and BIRCH; FRANK A. KAUFMAN |
| Citation | 951 F.2d 1235 |
| Parties | Prod.Liab.Rep. (CCH) P 13,037 Dallas V. WELCH, Plaintiff-Appellant, v. CELOTEX CORPORATION, etc., et al., Defendants, Armstrong World Industries, Inc., a corporation incorporated under the laws of Pennsylvania, formerly named Armstrong Cork Co., Fibreboard Corp., a corporation incorporated under the laws of Delaware, individually and as successor in interest to Plan Rubber Asbestos Company, GAF Corporation, a corporation incorporated under the laws of Delaware, individually and as successor in interest to Ruberoid Company, Keene Corporation, a corporation incorporated under the laws of New Jersey, individually and as successor in interest to Baldwin Hill Company, Baldwin-Thret-Hill Company, Keene Building Products Corporation and Ethert Magnesia Co., Pittsburgh-Corning Corporation, a corporation incorporated under the laws of Pennsylvania, United States Mineral Products Co., a corporation incorporated under the laws of New Jersey, and Owens-Illinois, Inc., Defendants-Appellees. |
| Docket Number | No. 90-9173 |
| Decision Date | 28 January 1992 |
Page 1235
v.
CELOTEX CORPORATION, etc., et al., Defendants,
Armstrong World Industries, Inc., a corporation incorporated
under the laws of Pennsylvania, formerly named Armstrong
Cork Co., Fibreboard Corp., a corporation incorporated under
the laws of Delaware, individually and as successor in
interest to Plan Rubber Asbestos Company, GAF Corporation, a
corporation incorporated under the laws of Delaware,
individually and as successor in interest to Ruberoid
Company, Keene Corporation, a corporation incorporated under
the laws of New Jersey, individually and as successor in
interest to Baldwin Hill Company, Baldwin-Thret-Hill
Company, Keene Building Products Corporation and Ethert
Magnesia Co., Pittsburgh-Corning Corporation, a corporation
incorporated under the laws of Pennsylvania, United States
Mineral Products Co., a corporation incorporated under the
laws of New Jersey, and Owens-Illinois, Inc., Defendants-Appellees.
Eleventh Circuit.
Brent M. Rosenthal, Baron & Budd, PC, Janice Robinson, Dallas, Tex., for plaintiff-appellant.
Greene Buckley Jones & McQueen, Atlanta, Ga., for Celotex.
Page 1236
Neely & Player, Atlanta, Ga., Steven Heath, John H. Peavy, Jr., Athens, Ga., for Raymark.
Appeal from the United States District Court for the Northern District of Georgia.
Before KRAVITCH and BIRCH, Circuit Judges, and KAUFMAN *, Senior District Judge.
FRANK A. KAUFMAN, Senior District Judge:
In this diversity action, Dallas Welch appeals from the district court's grant of summary judgment for appellees on the ground that that court erred in holding that Georgia's applicable two-year statute of limitations barred appellant's personal injury action. We agree with appellant and reverse and remand for further proceedings in accordance with this opinion.
I.
Since 1967 appellant Welch has worked for several companies as an insulator. During that employment, Welch allegedly was exposed to asbestos-containing products manufactured and/or distributed by appellees. In 1984, Welch began to experience shortness of breath and became concerned that he could be developing an asbestos-related disease. On or about December 14, 1984, Welch filed a workers' compensation claim 1, alleging asbestosis, against his employer, American Insulation Company. In June, 1985, Welch's chest was x-rayed. Dr. Holstein, a pulmonary specialist, read that x-ray in April, 1986, and noted some evidence of pleural thickening consistent with pleural asbestosis, but did not diagnose Welch as suffering from asbestosis. On May 1, 1987, Welch underwent a complete medical examination by Dr. Holstein. In an evaluation dated June 22, 1987, Dr. Holstein diagnosed Welch as having asbestosis.
On June 19, 1987, appellant filed this products liability suit, claiming negligence and strict liability in tort. In a supporting affidavit, Welch states that it was not until he consulted his attorney in connection with this action that he learned of the alleged wrongdoing by appellees. Appellant contends, therefore, that the two-year Georgia limitations provision raised in defense by appellees, does not bar appellant's within claim.
II.
The sole issue raised in this appeal is whether the district court properly granted summary judgment on the grounds of limitations. The applicable Georgia statute provides that "[a]ctions for injuries to the person shall be brought within two years after the right of action accrues ..." GA.CODE ANN. § 9-3-33 (1990). In granting appellees' motion for summary judgment, the district court concluded that if the plaintiff had sufficient information to justify the filing of a workers' compensation claim in 1984, he at that time either knew or, by the exercise of reasonable diligence,...
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...up to Plaintiff's termination, the court must view the record in the light most favorable to Plaintiff. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). Accordingly, the court recites the facts as alleged by 8. Monday is the regularly-scheduled day for submitting time cards......
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...by evidentiary material, i.e., deposition testimony. See Adickes, 398 U.S. at 157, 90 S.Ct. 1598; see also Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992). The court emphasizes that its duty at this juncture is not to weigh the evidence, question the accuracy of the evidence, or......
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Water Works & Sewer Bd. v. U.S. Dept. of Army, No. CV 95-PT-2956-S.
...The court, however, must avoid weighing conflicting evidence for probity or making credibility determinations. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th With respect to whether the denial of a public hearing is consistent with modern understandings of Fifth Amendment Due Process, th......
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Mahone v. BBG Specialty Foods, Inc., CASE NO.: 1:16cv00655-SRW
...viewed the evidence presented on the motion for summary judgment in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). These are the facts for summary judgment purposes only. They may or may not be the actual facts. See Cox v. Administra......
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Jordan v. Warehouse Services, Inc., No. Civ.A. 98-D-1001-N.
...up to Plaintiff's termination, the court must view the record in the light most favorable to Plaintiff. See Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). Accordingly, the court recites the facts as alleged by 8. Monday is the regularly-scheduled day for submitting time cards......
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Water Works & Sewer Bd. v. U.S. Dept. of Army, No. CV 95-PT-2956-S.
...The court, however, must avoid weighing conflicting evidence for probity or making credibility determinations. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th With respect to whether the denial of a public hearing is consistent with modern understandings of Fifth Amendment Due Process, th......
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Mahone v. BBG Specialty Foods, Inc., CASE NO.: 1:16cv00655-SRW
...viewed the evidence presented on the motion for summary judgment in the light most favorable to the plaintiff. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992). These are the facts for summary judgment purposes only. They may or may not be the actual facts. See Cox v. Administra......
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Camacho v. Nationwide Mut. Ins. Co., Civil Action No. 1:11–CV–3111–AT.
...light most favorable to the non-moving party and resolve all factual disputes in the non-moving party's favor. Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir.1992); Ryder Int'l Corp. v. First Am. Nat'l Bank, 943 F.2d 1521, 1523 (11th Cir.1991). The Court must avoid weighing conflicti......