Yorger v. Pittsburgh Corning Corp.

• Decision Date: 08 May 1984
• Docket Number: No. 82-2803,82-2803
• Parties: John YORGER, Plaintiff-Appellant, v. PITTSBURGH CORNING CORPORATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1215

733 F.2d 1215

John YORGER, Plaintiff-Appellant, v. PITTSBURGH CORNING CORPORATION, Defendant-Appellee.

No. 82-2803.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 6, 1984.

Decided May 8, 1984.

Gregory A. Young, Indianapolis, Ind., for plaintiff-appellant.

James W. Riley, Jr., Callahan, Riley & Hillis, Indianapolis, Ind., for defendant-appellee.

Before CUMMINGS, Chief Judge, WOOD and CUDAHY, Circuit Judges.

CUMMINGS, Chief Judge.

In this diversity case plaintiff John Yorger appeals the district court's order granting summary judgment in favor of defendant Pittsburgh Corning Corporation (PCC) which was based upon the court's construction of an Indiana statute of limitations, Ind.Code Sec. 33-1-1.5-5 (1978). For the reasons stated infra we vacate the judgment and remand for further proceedings in the district court.

I

Plaintiff worked with asbestos as an insulation mechanic from 1939 to 1980. Over the years plaintiff installed asbestos-containing materials such as pipe insulation and removed old materials on hundreds of commercial and industrial jobsites for various employers in Indiana, Michigan, Iowa, Illinois, Ohio, Florida, Kentucky, and Texas. Plaintiff claims to have asbestosis (a term used generally herein to refer to any asbestos-related disease) and was diagnosed as asbestotic in 1980. ¹ His last full year of work was in 1979 following which he asserts he was forced to retire due to his condition.

On October 24, 1980, plaintiff commenced this suit against numerous manufacturers of asbestos products seeking damages for alleged injuries attributable to exposure at the various jobsites. We recite in some detail the substance of the pleadings and motions because this case was decided below on summary judgment and, as discussed infra, defendant contends on appeal that plaintiff waived a factual issue in responding to defendant's motion for summary judgment. At the time plaintiff's second amended complaint was filed on July 6, 1982, all the original defendants except PCC and Owens-Illinois, Inc. had settled with plaintiff or had been dismissed due to lack of service of process. Owens-Illinois, Inc. subsequently filed a motion for summary judgment, was successful on that motion, and later settled with plaintiff, so that PCC is the sole remaining defendant and subject of this appeal. The two-count final complaint is grounded on negligence and defective product liability and alleges that at various locations in the aforementioned states plaintiff was exposed to asbestos manufactured by defendant, causing plaintiff's asbestosis. The complaint requests a total of $1,000,000 in compensatory and punitive damages.

An exhibit to the complaint sets forth in detail plaintiff's work history, listing the jobsites (to the best of his recollection), approximate dates, and the type of asbestos-containing material he allegedly handled at each jobsite. Because of the statute of limitations problem, discussed infra, most relevant are the more recent alleged exposures. The work history lists numerous exposures to asbestos-containing materials occurring after October 24, 1970, eight of which refer either to defendant PCC or "Unibestos", an asbestos-containing pipe insulation manufactured and sold by PCC. The exposure most critical to this appeal is plaintiff's "tear-off" (i.e., pipe insulation removal and replacement) work at the Paradise steam power plant, in Paradise, Kentucky, during 1979 (Work History Second Amended Compl., Ex. D, pp. 38-40). In his deposition plaintiff specified that his employment at the Paradise plant by the Tennessee Valley Authority extended from approximately February 12, 1979, to June 12, 1979 (Yorger Dep., vol. III, p. 516).

On July 20, 1982, defendant PCC filed a motion for summary judgment claiming no genuine issue of material fact exists and that defendant is entitled to judgment on the basis of statutes of limitations, Ind.Code Sec. 34-1-2-2 (1976) and Sec. 33-1-1.5-5 (1978). It is undisputed that the former applies to those claims of plaintiff deemed to have accrued before June 1, 1978, and the latter applies to actions accruing after that date. The argument made in defendant's motion for summary judgment is as follows: Section 34-1-2-2 is a two-year statute of limitations, and since plaintiff commenced this action on October 24, 1980, any claims deemed to have accrued prior to June 1, 1978, are barred by the two-year rule (Defendant's Mem. In Support of Summary Judgment, pp. 3-4). Regarding those claims accruing after June 1, 1978, Section 33-1-1.5-5 provides:

Sec. 5. Statute of Limitations. This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, any product liability action must be commenced within two (2) years after the cause of action accrues or within ten (10) years after the delivery of the product to the initial user or consumer; except that, if the cause of action accrues more than eight (8) years but not more than ten (10) years after the initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.

Under defendant's construction of Section 33-1-1.5-5, defendant in its summary judgment motion asserts that PCC did not deliver or sell any asbestos-containing product to companies employing plaintiff as listed on plaintiff's work history after October 1, 1970, i.e., slightly more than ten years prior to the commencement of this action. It is undisputed that defendant manufactured Unibestos from July 1, 1962 to February 1, 1972, but the critical dates are the dates of delivery to plaintiff's employers and, specifically, the dates of delivery to plaintiff's jobsites. Defendant's claim that no delivery was made to these jobsites is based upon the affidavit of Robert E. Buckley, former vice president and currently a consultant to PCC. The affidavit addresses plaintiff's employers and jobsites from October 1, 1970, to the most recent jobsite, i.e., the Paradise plant from February 12, 1979 to June 12, 1979. The affidavit states, "[b]ased upon a review of all available records of [PCC], after October 1, 1970, [PCC] did not sell or deliver asbestos thermal insulation products to [these] companies at the respective job sites * * * " (Defendant's Mem. In Support of Summary Judgment, App. A, p. 1).

In plaintiff's response to defendant's motion, plaintiff asserts that there are several unresolved questions of material fact and that summary judgment in favor of defendant was therefore improper. The response alleges exposure to defendant's products in Illinois and Kentucky and refers to several places in the work history, stating, for example, that plaintiff was exposed to Unibestos insulation at the Paradise plant in 1979 (at p. 40). The response also refers to and discusses defendant's answers to plaintiff's interrogatories, in which defendant lists those companies employing plaintiff to which PCC believes it sold asbestos-containing materials. In the answer defendant admits having sold asbestos insulation materials to seven of plaintiff's past employers during periods of plaintiff's employment, spanning from July 1964 to December 1971. Not included in defendant's answer is a reference to the Tennessee Valley Authority which employed plaintiff at the Paradise steam plant in 1979. Defendant sold asbestos products to two of plaintiff's seven employers after October 1, 1970, the date referred to in the Buckley affidavit as the date after which no asbestos was sold to plaintiff's employers. The Buckley affidavit seeks to undo or modify what is admitted in the interrogatory answer by asserting that no asbestos was sold to the plaintiff's particular jobsites with respect to these two employers. ² Plaintiff's response challenges the veracity of the Buckley affidavit, particularly the claim that no deliveries were made not only to particular employers after October 1970, but that no deliveries were made to particular jobsites.

Defendant's reply to plaintiff's response reiterates its position that plaintiff's action (particularly any claim accruing after June 1, 1978) is time-barred by the ten-year provision in Ind.Code Sec. 33-1-1.5-5 if defendant did not deliver asbestos products after October 24, 1970, and that the Buckley affidavit substantiates this factual allegation.

In a brief memorandum, the district court granted defendant's motion for summary judgment. Judge Holder's findings of fact state that "[p]laintiff never worked with nor was exposed to asbestos thermal insulation products manufactured or sold on or after October 24, 1970 by [PCC]." Based upon this finding, the court ruled that plaintiff's claims accruing after June 1, 1978, are barred by "the ten-year statute of limitations of Indiana's Product Liability Act, I.C. Sec. 33-1-1.5-5." The court also ruled that those claims accruing before June 1, 1978, are time-barred by the two-year statute of limitations of Ind.Code Sec. 34-1-2-2 (1976).

Plaintiff appeals from summary judgment in favor of defendant on the grounds that recovery for the alleged exposure at the Paradise plant in 1979 is not barred by the Indiana statutes of limitation, that the district court misconstrued Section 33-1-1.5-5, and that defendant has not established it is entitled to judgment as a matter of law. Plaintiff does not argue that the other alleged asbestos exposures are grounds for reversal. Indeed plaintiff concedes that the earlier alleged exposures to Unibestos are time-barred by Ind.Code Sec. 34-1-2-2 (1976), ³ so that we will consider as grounds for reversal only the alleged exposure at the Paradise plant in 1979. Also, for purposes of this appeal the parties do not dispute the district court's holding that the statute of limitations of the forum state, Indiana, applies notwithstanding the alleged exposure in 1979 in Kentucky. Finally, for purposes of this appeal the parties do not dispute the Indiana rule that an...