West v. Allied Signal, Inc.
Decision Date | 15 June 2005 |
Citation | 200 Or. App. 182,113 P.3d 983 |
Parties | Donna WEST, Personal Representative of the Estate of Wendell Lee West, Appellant, v. ALLIED SIGNAL, INC., individually and as successor-in-interest to Allied Corp., successor-in-interest to Bendix Corp.; Borg-Warner Corporation, a Delaware corporation; Carlisle Companies, Inc., a Delaware corporation, individually and as successor-in-interest to Carlisle Corp.; CH Murphy/Clark-Ullman, Incorporated, an Oregon corporation, individually, and as successor-in-interest to CH Murphy, and as successor-in-interest to Clark-Ullman, Inc.; Daimler Chrysler Corporation, as successor-in-interest to Chrysler Corporation; Ferodo America, Inc., a Delaware corporation, individually and as successor-in-interest to Nuturn Corporation; Ford Motor Company, a Delaware corporation; General Motors, a Delaware corporation; G.I. Joe's, an Oregon corporation; Metalclad Insulation Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Insulation Corporation of Oregon, an Oregon corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Corporation, a Delaware corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Development Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; The Metalclad Group, Inc., a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, Metalclad Products Corporation, Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Products Corporation, a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Insulation Corporation of Washington, Metalclad Supply, Inc., and Bower Industries, Inc.; Metalclad Supply, Inc., a California corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Insulation Corporation of Washington, Metalclad Products Corporation, and Bower Industries, Inc.; Metalclad Insulation Corporation of Washington, a Washington corporation, individually and as successor-in-interest to Pacific Asbestos, Inc., Metalclad Insulation Corporation of Oregon, Metalclad Insulation Corporation, Metalclad Corporation, Metalclad Development Corporation, The Metalclad Group, Inc., Metalclad Products Corporation, Metalclad Supply, Inc., and Bower Industries, Inc.; Metropolitan Life Insurance Company, a New York corporation; Pneumo Abex Corporation, a Delaware corporation, individually and as successor-in-interest to American Brake Shoe Co. and Abex Corp., Defendants, and La Grand Industrial Supply Co., an Oregon corporation, Respondent. |
Court | Oregon Court of Appeals |
Robert K. Udziela, Portland, argued the cause and filed the briefs for appellant.
R. Daniel Lindahl, Portland, argued the cause for respondent. With him on the brief were Jeanne F. Loftis and Bullivant Houser Bailey, PC.
Before HASELTON, Presiding Judge, and LINDER and ORTEGA,1 Judges.
Plaintiff, the personal representative of the Estate of Wendell West, appeals, challenging the allowance of summary judgment in favor of defendant La Grand Industrial Supply Co. on claims arising out of the decedent's alleged exposure to asbestos while working at a foundry in the early 1960s. The trial court concluded that plaintiff had failed to present sufficient evidence to permit a reasonable trier of fact to find that defendant had, in fact, supplied to the foundry asbestos gloves that decedent or his coworkers wore, causing decedent to be injuriously exposed to asbestos fibers. We disagree and, consequently, reverse and remand.
Summary judgment is proper if the "pleadings, depositions, affidavits, declarations and admissions on file show that there is no genuine issue as to any material fact * * *." ORCP 47 C. "No genuine issue as to a material fact exists if, based upon the record before the court viewed in a manner most favorable to the adverse party, no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In reviewing the allowance of summary judgment here, we draw all reasonable inferences in favor of plaintiff, who was the nonmoving party. Bachmeier v. Tuttle, 195 Or.App. 83, 85, 96 P.3d 871 (2004).
The pertinent portions of the Hillner affidavit state as follows:
Although defendant challenges the admissibility of the entire Hillner affidavit, defendant is particularly concerned with those portions of the affidavit that pertain to a single, critical matter: Did defendant supply any asbestos gloves to the foundry during the period of decedent's employment? Defendant asserts that nothing in Hillner's affidavit shows that Hillner had personal knowledge about the source of the foundry's asbestos gloves:
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...47 D does not require an explicit statement by the affiant as to his personal knowledge and competence." West v. Allied Signal, Inc. , 200 Or. App. 182, 190, 113 P.3d 983 (2005) (emphasis in original). Rather, "the rule's requirements are satisfied if, from the content of the affidavit read......
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§ 28.3 Types of Evidence to Be Used in Summary-judgment Proceedings
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§ 4.7 Oregon Law and State Agencies
...A.J. Zinda Co., 196 Or App 262, 271, 101 P3d 819 (2004), rev den, 338 Or 374 (2005); West v. Allied Signal, Inc., 200 Or App 182, 192-93, 113 P3d 983 (2005); Abendroth v. Asbestos Corp., Ltd., 201 Or App 705, 120 P3d 535 (2005). NOTE: Several bills designed to take asbestos-related injury c......