Opinion
Cause No. IP94-1248-C-M/G
July 2, 1998
ORDER
I. FACTUAL PROCEDURAL BACKGROUND
This matter comes before the Court on the motion for summary judgment filed by defendant C.B.S. Corporation, formerly known as Westinghouse Electric Corporation ("Westinghouse"), on April 16, 1998. On April 15, 1998, defendant Owens-Illinois Incorporated ("Owens-Illinois") joined Westinghouse's motion. Plaintiff William Lee Roberts ("Roberts") seeks to recover damages from both defendants for his injury caused by exposure to asbestos products allegedly manufactured by these defendants and others. Westinghouse and Owens-Illinois argue that the Indiana statutes of repose and limitations bar the plaintiff's claims against them. Having been fully briefed by the parties on both issues, the Court GRANTS the defendants' motion for summary judgment.
No factual allegations were provided in Owens-Illinois' motion for joinder with Westinghouse. However, the company states that it is "identically situated" to Westinghouse in this matter. Accordingly, the Court renders this decision equally applicable to Owens-Illinois.
During the years between 1936 and 1982, Roberts worked as an insulator primarily for Armstrong Cork Company. This position took him to numerous jobsites including one in Noblesville, Indiana, during the early 1950s. The Noblesville site was a power plant, which contained two turbines manufactured by Westinghouse. In addition to the Noblesville site, Roberts may have worked at several other plants containing Westinghouse turbines. Roberts' job involved installing and insulating such equipment.
In the course of his employment as an insulator, Roberts was exposed to various forms of asbestos and asbestos products. While working on the Westinghouse turbines at the Noblesville power plant, he was allegedly exposed to asbestos fibers from insulation blankets supplied by Westinghouse to cover the machines. As a result of his exposure, Roberts began to show symptoms of chronic lung disease as early as June of 1991. He was formally diagnosed with pulmonary asbestosis on March 24, 1994.
On July 21, 1994, Roberts filed his original complaint to recover for his asbestos-related injury. In his complaint, Roberts named numerous defendants who mined, manufactured or sold asbestos and asbestos products allegedly used on jobs where he was employed. Neither Westinghouse nor Owens-Illinois were named as defendants in the initial claim.
On January 5, 1996, Roberts filed a motion to amend his complaint to add Westinghouse and Owens-Illinois as defendants. A copy of the proposed amended complaint was attached to the motion but neither document was served on the defendants. An order granting leave to amend was issued by the United States District Court for the Eastern District of Pennsylvania on January 17, 1996. Roberts subsequently filed his amended complaint with the Pennsylvania District Court on April 25, 1996. On May 8, 1996, he served Westinghouse and Owens-Illinois with the summons and amended complaint that added these corporations as defendants.
For purposes of clarity, the Court will refer to both defendants as "Westinghouse" or "Defendants."
II. STANDARDS OF REVIEW
Summary judgment may be granted on the basis of a statute of limitations or repose defense only when the limitations period has run as a matter of law. If after resolving all doubts in favor of the plaintiff, there exists no genuine issue of material fact regarding the time at which plaintiff s cause of action accrued, judgment may be awarded against the plaintiff if the limitations period has run. Avery v. Mapco Gas Products, Inc., 848 F. Supp. 1388, 1393 (N.D.Ind. 1991) (citing Yorger v. Pittsburgh Corp., 733 F.2d 1215, 1219 (7th Cir. 1984)). The question of when a cause of action accrues is generally one for the jury. Avery, 848 F. Supp. at 1393. However, when a defendant moves for summary judgment on the basis of a statute of limitations or repose, the plaintiff must present facts that raise a genuine issue about when the cause of action accrued in order to avoid the limitations defense. Hildebrand v. Hildebrand, 736 F. Supp. 1512, 1522 (S.D.Ind. 1990) (citing Nichols v. Amax Coal Co., 490 N.E.2d 754, 755 (Ind. 1986)). Summary judgment is improper if there is sufficient evidence that would permit a jury to decide the suit was brought within the limitations period. Hildebrand, 736 F. Supp. at 1522. In contrast, summary judgment would be proper if plaintiff "fails to make a showing sufficient to establish the existence of an element essential to his case, and on which he would bear the burden of proof at trial." Celotex Corp. v. Catratt, 477 U.S. 317, 322-323 (1986).III. DISCUSSION A. SUMMARY OF ARGUMENTS
Defendants argue that Indiana Code § 33-1-1.5-5 serves as a bar to recovery in this action. Section 33-1-1.5-5 provides both the statute of repose and the statute of limitations for claims brought under the Indiana Product Liability Act. The claims at issue have been brought under this statute.
First, defendants argue that Roberts' claim is barred by the statute of repose, which prohibits any product liability action that is not commenced within ten years of the date the product was delivered to the initial user or consumer. I.C. § 33-1-1.5-5. While neither party clearly states when Roberts was allegedly exposed to Westinghouse's asbestos-containing product, it appears from plaintiff's deposition testimony that he was first exposed during the early 1950s. Given that Roberts last worked as an insulator in 1982, the Court is satisfied that more than ten years has passed between any exposure to Westinghouse's products and the date suit was commenced against these defendants.
In defending the motion, plaintiff urges that the statute of repose does not apply in this case as the Indiana courts and legislature have adopted a "discovery" rule in asbestos-related litigation which permits a plaintiff to bring a product liability action outside the normal ten year period of repose, so long as it is commenced within two years after the injury is discovered. Plaintiff cites Indiana Code § 33-1-1.5-5.5 and Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind. 1989), in support of this rule
Defendants respond that the discovery rule is inapplicable to this case as the language of the statute limits application of the exception to those actions brought against defendants who "mined and sold commercial asbestos." I.C. § 33-1-1.5-5.5(d). Defendants argue the product once supplied by Westinghouse does not fall within the meaning of "commercial asbestos" under § 5.5(d).
Second, defendants argue that even if § 5.5 is applicable, Roberts is still barred from recovery by the statute of limitations. The Court need not address this argument because it has found that Roberts' claim is barred by the statute of repose.
B. ANALYSIS
In addressing the statute of repose issue, the Court will consider two questions. First, whether § 5.5 of the Indiana Product Liability Act is applicable to Roberts' claim so as to relieve him of the statute of repose. Second, if § 5.5 does not apply, whether a claim for asbestos-related injury is subject to the exception for the statute of repose created in the common law.
1. Application of § 5.5 of the Indiana Product Liability Act
In this case, plaintiff seeks the application of § 5.5 to exempt his claim from the statute of repose. When enacting § 5.5, the Indiana Legislature narrowly defined this exclusionary provision as applicable only to product liability actions brought against persons who "mined and sold commercial asbestos" and actions brought against funds which have, as a result of bankruptcy proceedings, been created for the payment of asbestos-related disease claims or property damage. I.C. § 33-1-1.5-5.5(d). Thus, to avoid the statute of repose, Roberts must present facts raising a genuine issue as to whether his claims against Westinghouse fit within one of these two categories of product liability actions.
To support the application of § 5.5 to his claim, plaintiff relies solely on his deposition testimony that Westinghouse specified and supplied the asbestos blankets he used on the turbines at the power plants where he was working as an insulator. He attempts to demonstrate that the defendants thereby sold "commercial asbestos." (Response In Opposition To Defendant C.B.S. Corporation, f/k/a Westinghouse Electric Corporation's Motion For Summary Judgment, page 9). Two principle factors lead the Court to conclude that Roberts, in relying on this fact, misses the mark in his attempt to establish whether the exception to the statute of repose is applicable in this case.
First, plaintiff has failed to provide a clear explanation of how the act of supplying blankets for the company's turbine equipment constitutes the sale of "commercial" asbestos by Westinghouse. The adjective "commercial" is defined in neither the product liability statute nor the Indiana Commercial Code. Thus, the Court is left with the task of predicting how an Indiana court would define the term in this instance. Interestingly, while the word "commercial" is used frequently by Indiana courts, the term is squarely defined in few, if any, decisions.
From common everyday usage, the term commercial is capable of two distinct meanings. First, commercial may be used to connote an item that can be bought and sold. Second, the word can be used as an adjective to describe a product of raw or manufacturing quality. In attempting to determine which meaning an Indiana court would adopt in this case, the Court notes that in Clem v. Christole, former Supreme Court Justice Krahulick defined commercial in his dissenting opinion as "relating to or connected with trade and traffic or commerce, in general . . . or a generic term for buying and selling." 582 N.E.2d 780, 786 (Ind. 1991) (citing Black's Law Dictionary). While such definition is arguably a more frequently used interpretation, the Court finds application of this meaning to be illogical in this instance. Specifically, the Court notes the words "mined and sold" which precede the phrase "commercial asbestos." If the legislature intended commercial to mean intended for buying and selling, it seems redundant to follow the verb sold with an adjective meaning a product intended for buying and selling, in order to describe the nature of the product.
In contrast, if the term is interpreted as describing a product of raw or manufacturing quality, the word commercial logically follows the verb sold. In this context, commercial is an adjective which describes the nature of the asbestos material mined and sold by the defendants or the market for which it is intended. In explicitly requiring the defendants to have mined and sold a particular type of product, the language of § 5.5(d) suggests the word commercial is intended to limit the exception to the statute of repose to a select category of defendants. Understood in this light, the word commercial has a distinct function in the sentence. Accordingly, the Court determines the legislature intended the term commercial to describe the type of asbestos mined and sold by the defendants, rather than as a reference to a product intended to be bought or sold.
Applying this interpretation, the Court finds the plaintiff has failed to show the defendants sold commercial abestos. In his deposition, Roberts states that the asbestos blankets supplied by Westinghouse were made of asbestos cloth with a fiber filling. (Deposition of William Lee Roberts, page 620). This description suggests Westinghouse was distributing finished products that contained an asbestos component, rather than mining and selling a commercial type of asbestos material as provided in the statute. Without further explanation of plaintiff's theory, this factor bars application of the commercial asbestos exception to this case.
Second, even if the Court could find that Roberts had raised a factual issue about whether Westinghouse sold "commercial asbestos," the statute only provides an exception for actions against those defendants who "mined and sold" commercial asbestos. The use of the conjunction "and" suggests that the exception was only meant to apply to those who first introduced raw asbestos material into the stream of commerce. Since the enactment of § 5.5, no Indiana court has interpreted the meaning of the term "mined," nor is it defined in the statute. Thus, the Court is left with the task of predicting how Indiana law would apply in this case.
The Court is guided in this task by two sources. First, mining is defined in § 14-35-4-1 of the Indiana Code as "the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter, any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, and other solid matter from its original location, and the preparation, washing, cleaning, or other treatment of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial or construction use."
Second, the Court is guided by Covalt v. Carey Canada, 543 N.E.2d 382 (Ind. 1989). In Covalt, the Indiana Supreme Court held that an action brought by a worker against a supplier of raw asbestos was not barred by the statute of repose even though he was diagnosed with asbestosis more than ten years after his last exposure to the supplier's product. Covalt, 543 N.E.2d at 387. In reaching this conclusion, the Indiana high court did not rely on § 5.5, which was a recent amendment to the statute at that time, but it noted that the provision provided an exception to the repose period. Id. at 383. Instead, the Court relied on its previous holding in Barnes v. A.H. Robins Co., 476 N.E.2d 84 (Ind. 1985), which said that where a plaintiff's injury is caused by protracted exposure to a foreign substance, the statute of limitations commences to run from the date the plaintiff knew about or should have discovered the injury.
While the Court in Covalt did not reconcile the Barnes decision with § 5.5, this Court has been able to do so in determining the applicable law in this case. In Covalt, the defendant clearly fit within the category of defendants to which § 5.5 applies as he allegedly mined and sold asbestos mineral in raw, chrysotile and fibrous form. The Indiana Supreme Court would have reached the same result whether it applied the statutory exception or the common law exception created in Barnes. In addition, the Court limited its holding to the "precise" factual pattern presented. Id. at 387. Thus, it did not have to address the effect of § 5.5 on the issues raised by the certified question.
In contrast to Covalt, the plaintiff in this case has failed to make any showing that the defendant produced asbestos in a raw, chrysotile or fibrous form. Similarly, plaintiff has not shown the defendant was otherwise engaged in mining activity as defined by the Indiana Code. On the contrary, no mention is made of how the asbestos-containing blankets were produced, and there is certainly no evidence that Westinghouse mined asbestos mineral from the ground. Instead, Roberts merely alleges that Westinghouse supplied asbestos in the form of pre-cut blankets made of asbestos-containing material. This activity does not constitute "mining and selling" commercial asbestos as this Court understands the statute. Thus, § 5.5 is not applicable to Roberts' claim.
2. Common Law Exception to the Statute of Repose
Assuming Westinghouse's activity does not fit the definition of suppliers within the scope of § 5.5, a question still remains as to whether the statute of repose is otherwise applicable in this case. Prior to the enactment of § 5.5, several state and federal court decisions in Indiana held the statute of repose does not bar a plaintiff from bringing an asbestos-related claim more than ten years after the last exposure to the product that caused the disease. See Blaker v. U.S. Mineral Products Co., 688 F. Supp. 1300 (S.D.Ind. 1987); Covalt v. Carey Canada, 672 F. Supp. 367 (S.D.Ind. 1987); Covalt v. Carey Canada, 543 N.E.2d 382 (Ind. 1989). However, it is a fundamental rule of statutory construction that when the legislature enacts an amendment to a prior statute, a presumption arises that the legislature intended to change the law unless it clearly appears that the amendment was made only to express the original intent of the legislature more clearly. Jones v. Indiana, 457 N.E.2d 231, 234 (Ind. Ct. App. 1983) (citing Indiana Alcoholic Beverage Commission v. OSCO Drug, Inc., 431 N.E.2d 823 (Ind.Ct.App. 1982)). For example, if the common law had developed an exception to the application of a statute's restriction, an amendment that directly speaks to that exception is seen as an intent to limit and codify the exception.
Applying this rule of construction, the Court finds that Roberts has not shown that § 5.5 of the product liability statute was intended to clarify the original intent of the legislature. Instead, it appears to codify the exception to the application of the statute of repose for certain types of claims. It then narrowly defines the types of claims that may profit from the exception. The presumption is that the legislature intended to change prior case law and limit the types of actions that are exempt from the statute of repose. Thus, the prior decisions that enabled asbestos plaintiffs to avoid the statute of repose have been limited by the amendment. In enacting § 5.5, the legislature has made a policy choice, which is its prerogative. It has drawn a clear distinction between defendants who mine and sell commercial asbestos, and those who merely supply or sell products which contain asbestos. Plaintiff has failed to show that Westinghouse falls within the former category of defendants to whom the statute of repose is inapplicable. Accordingly, the Court finds that his claim is barred by the statute of repose.
IV. CONCLUSION
For the reasons provided herein, the Court finds that the plaintiff has failed to provide sufficient facts demonstrating why the statute of repose is inapplicable to his claim for relief from asbestosis. Under that statute, Roberts' claims against Westinghouse are barred because the product to which he allegedly was exposed was delivered nearly forty years prior to commencement of this litigation. The defendant's motion for summary judgment is GRANTED.
The Court notes a pending motion for judgment on the pleadings filed by plaintiff in this case. It is the Court's view that its ruling on the motion for summary judgment renders that motion for judgement on the pleadings moot.
IT IS SO ORDERED.