WALTER PARRISH and SHIRLEY PARRISH v. OWENS-CORNING FIBERGLAS CORP. JAMES COYLE v. OWENS-CORNING FIBERGLAS CORP.
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RENDERED:
July 2, 1998; 10:00 a.m.
TO BE PUBLISHED
NO. 96-CA-2417-MR
WALTER PARRISH and
SHIRLEY PARRISH
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM E. McANULTY, JR., JUDGE
ACTION NO. 90-CI-008795
v.
OWENS-CORNING FIBERGLAS CORP.
AND
APPELLEE
NO. 96-CA-2419-MR
JAMES COYLE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE WILLIAM E. McANULTY, JR., JUDGE
ACTION NO. 88-CI-005618
OWENS-CORNING FIBERGLAS CORP.
APPELLEE
OPINION
VACATING AND REMANDING
* * *
BEFORE:
GUDGEL, CHIEF JUDGE, GARDNER, AND SCHRODER, JUDGES.
SCHRODER, JUDGE.
These appeals are from judgments in two
products liability actions against the same defendant to recover
for injuries sustained as a result of appellants' occupational
exposure to asbestos.
Upon consideration of appellants'
arguments, in light of the voluminous record herein and the
applicable law, we vacate and remand for proceedings consistent
with this opinion.
Plaintiff/appellant, James Coyle, began working for
Louisville Gas & Electric ("LG&E") in 1969.
worked outside as a rigger's assistant.
Coyle primarily
However, during periods
of inclement weather, Coyle worked as an assistant to the
insulators at LG&E.
Coyle claimed he was exposed to asbestos-
containing insulation products during these times.
Eventually
around 1974, Coyle became a mechanic and thereafter worked as
such for the next 19 years.
As a mechanic, he worked with
asbestos-containing brake pads and clutches.
Plaintiff/appellant, Walter Parrish, began working for
the Louisville Water Company ("LWC") in 1959 in the maintenance
department.
His job duties included the repair of steam lines,
pumps and electric motors.
Parrish testified that in performing
these duties, he handled or came into contact with asbestoscontaining products nearly every day.
Parrish retired from LWC
in 1990.
Parrish and his wife and Coyle instituted separate
products liability personal injury actions in the Jefferson
Circuit Court to recover for injuries sustained as a result of
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Parrish's and Coyle's exposure to asbestos-containing products.
Coyle's action was brought on July 14, 1988, and named the
following fifteen (15) defendants in his original complaint:
appellee, Owens-Corning Fiberglas Corp. ("OCF"); Anchor Packing
Company; A.P. Green Refractories Co.; Armstrong World Industries,
Inc.; Celotex Corporation; Combustion Engineering; Eagle-Picher
Industries, Inc.; Fibreboard Corporation; The Flintkote Company;
Foster Wheeler Energy Corporation; GAF Corporation; H.K. Porter
Company; Keene Building Products Corporation; Owens-Illinois,
Inc.; and Raymark.
His complaint was later amended to add an
additional defendant, Garlock, Inc.
The Parrishes' action, filed
October 26, 1990, named the following sixteen (16) defendants in
their original complaint:
OCF; A.P. Green Refractories Co.;
Armstrong World Industries, Inc.; Garlock, Inc.; Eagle-Picher
Industries, Inc.; Fibreboard Corporation; Foster-Wheeler Energy
Corporation; National Gypsum Company; Owen-Illinois, Inc.;
Pittsburgh Corning Corp.; Southern Textile Corp.; United States
Gypsum Company; and W. R. Grace & Co.
On or about May 23, 1996,
OCF filed a Notice of Assertion of Claim in both the Coyle and
Parrish cases against the Manville Corporation Asbestos Disease
Compensation Fund for the purpose of naming Johns-Manville
Corporation as a third-party defendant.
Prior to trial, Coyle settled with nine (9) of the
defendants and one other asbestos product manufacturer not named
as a defendant.
The Parrishes settled with nine (9) of the
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defendants and two companies not named as defendants.
All of the
remaining defendants except OCF were dismissed prior to trial.
One of the defendants with which Coyle and the
Parrishes both settled was Owens-Illinois ("OL").
OL
manufactured an asbestos-containing product known as "Kaylo" from
the early 1940's until 1958, when the Kaylo division was
purchased by OCF.
Evidence was introduced establishing that in the early
1940's, OL contacted a laboratory in New York, Saranac Lake, to
conduct tests to determine whether Kaylo was hazardous.
One of
the first letters OL received from Saranac Lake, from Dr. Leroy
Gardner, advised OL that, since the product contained asbestos
and quartz, it contained "all of the ingredients for a firstclass hazard."
Dr. Vorwald, the director of Saranac Lake,
advised OL that it had a dangerous product.
When OCF bought the Kaylo line, OL boxed up all the
documentation pertaining to Kaylo and the experiments being
conducted on the product and shipped them to OCF.
After
receiving the information, OCF continued selling and
manufacturing Kaylo without warnings.
John Thomas, a former
President of OCF, testified that he and others at OCF knew, in
the 1940's, that the asbestos was dangerous.
He testified they
did not warn insulators about the product, and admitted OCF
should have warned them.
Coyle and Parrish both claimed that they suffered from
asbestosis, a disease of the lungs caused solely by exposure to
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asbestos.
Coyle and Parrish also claimed to be at an increased
risk in the future of developing lung cancer and mesothelioma, a
rare and deadly form of cancer caused by exposure to asbestos.
Coyle's case and the Parrishes' case were tried
simultaneously in the Jefferson Circuit Court, beginning on
June 5, 1996 and continuing through June 17, 1996.
Although OCF
was the only defendant left in the suit, the instructions
submitted to the jury gave the jury the opportunity to allocate
fault against:
all of the defendants originally sued; the
additional entities with which Coyle and Parrish settled;
Parrish's employer, LWC, with which Parrish had settled a
workers' compensation claim; and Nicolet, an asbestosmanufacturing company with which neither Parrish nor Coyle
settled and which was never named as a party.
The trial court
also submitted jury instructions regarding the
plaintiffs'/appellants' comparative negligence.
The jury found that both Parrish and Coyle were
comparatively negligent and apportioned 50% of the fault to each
plaintiff.
As to Parrish, the remaining fault was apportioned as
follows: 20% to OCF; 20% to OL; and 10% to LWC.
As to Coyle, 25%
of the fault was assessed against OL and 25% to OCF.
No fault
was assessed against any other party named on the verdict forms
in either case.
The jury awarded Coyle and Parrish each $55,000,
which was broken down as follows on the verdict forms:
a. Mental or physical pain and suffering
sustained and which you reasonably expected
in the future as a direct result of exposure
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to asbestos (not to exceed the sum of
$1,000,000.00, the amount claimed): $50,000
b. Increased likelihood of contracting
cancer, (not to exceed the sum of
$1,000,000.00, the amount claimed): $ 5,000
TOTAL:
$55,000
From the judgments pursuant to the jury verdicts, Coyle and
Parrish now appeal.
Appellants first argue that the trial court improperly
submitted a contributory negligence instruction to the jury.
The
instruction, which was given separately as to both Coyle and
Parrish regarding their asbestosis and future cancer claims,
stated as follows:
It was the duty of the Plaintiffs, James
Coyle and Walter Parrish, to exercise that
degree of care for his[/]their health and
safety as expected of a reasonably prudent
person under the same or similar
circumstances.
Question No. 1 [Question No. 2]: Do you
believe from the evidence that the Plaintiff
Coyle [Plaintiff Parrish] failed to exercise
that degree of care for his own health and
safety as expected of a reasonably prudent
person under the same or similar
circumstances, and that such failure was a
substantial factor in causing his claimed
injury?
Upon reviewing the above instruction, it is clear that
said instruction was not a true contributory negligence
instruction since plaintiffs'/appellants' claims were not barred
by the jury's finding that plaintiffs were negligent.
Rather, it
was a comparative negligence instruction, as plaintiffs were
found to be 50% at fault.
In any event, appellants argue that
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the instruction was given in error because under KRS 411.320(3),
in a products liability action, the plaintiffs' negligence is
relevant only if it relates to use of the product, and there was
no evidence that either plaintiff was negligent in his use of the
asbestos-containing products.
We shall first look at the evidence of appellants'
possible negligence presented at trial to determine whether
appellants' fault was even an issue.
Appellee maintains there
was evidence of Parrish's negligence in that he testified that he
sometimes did not wear a mask when one was provided by his
employer.
Upon reviewing Parrish's testimony regarding the mask,
he testified that masks were not provided by his employer until
later in his career.
However, he stated that he could not wear
it for long because the filter would become filled with dust and
his employer would only provide one filter.
This evidence was
apparently the basis for the court's submission of the
comparative fault instruction as to Coyle and Parrish.
Clearly,
that was not a sufficient basis for such an instruction as to
Coyle as there was no evidence that Coyle failed to wear a mask.
Further, as to the evidence regarding Parrish's not wearing his
mask, we do not believe it warranted a comparative fault
instruction.
Parrish was not provided a mask until late in his
career, after he had already been exposed to asbestos for many
years.
Moreover, he had a justifiable reason for not always
wearing his mask because when the filter became clogged, he could
not breathe and the employer refused to provide another one.
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The only other evidence which the jury may have found
to be proof of appellants' comparative fault was the evidence of
appellants' cigarette smoking history during the time they were
exposed to asbestos.
Appellants argue that the comparative fault
instruction was in error because it allowed the jury to consider
evidence of appellants' cigarette smoking as evidence of
appellants' comparative fault.
Appellants contend that since
they were only seeking damages for injuries sustained as a direct
result of exposure to asbestos, which the instructions so
reflected, there was no justification for reducing appellants'
damages because they smoked cigarettes.
Appellees argue there is
no reason to preclude the consideration of appellants' smoking
for purposes of determining comparative fault in an asbestos
products liability action.
There must be sufficient evidence of plaintiff's
comparative fault in order to submit a comparative fault
instruction to the jury.
Skaggs v. Assad By and Through Assad,
Ky., 712 S.W.2d 947 (1986).
In reviewing the record, we did not
see any evidence linking cigarette smoking to the disease of
asbestosis.
The medical evidence was undisputed that asbestosis
is caused solely by exposure to asbestos.
Thus, the jury should
not have been instructed as to appellants' comparative fault
regarding the asbestosis claim, and the trial court erred to the
extent it so instructed the jury.
As to appellants' claim for the increased likelihood of
contracting cancer due to asbestos exposure, there was evidence
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introduced in the form of expert medical testimony establishing
that smoking cigarettes combined with exposure to asbestos has a
synergistic effect which increases the likelihood of contracting
lung cancer.
The testimony established that those who smoked and
were exposed to asbestos had a much greater risk of contracting
cancer than those who were exposed to asbestos and did not smoke.
Thus, it was proper to instruct the jury as to appellants'
comparative fault regarding the cancer claim so long as KRS
411.320(3) does not apply, as we shall discuss below.
KRS 411.320(3) provides:
In any product liability action, if the
plaintiff failed to exercise ordinary care in
the circumstances in his use of the product,
and such failure was a substantial cause of
the occurrence that caused injury or damage
to the plaintiff, the defendant shall not be
liable whether or not said defendant was at
fault or the product was defective.
Under KRS 411.320(3), the plaintiff's negligence is limited to
his use of the product, in which case it is a complete bar to
recovery.
Since appellants' smoking is clearly not evidence of
negligence as to use of the product, it cannot be considered by
the jury as evidence of contributory negligence if KRS 411.320(3)
applies.
Hence, the next issue for our determination is whether
KRS 411.320(3) or KRS 411.182(1) applies.
KRS 411.182, enacted after KRS 411.320 and effective
July 15, 1988, applies the law of comparative negligence:
In all tort actions, including products
liability actions, involving fault of more
than one party to the action, including
third-party defendants and persons who have
been released under subsection (4) of this
section, . . .
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KRS 411.182(1).
Appellee argues that KRS 411.320(3) was superseded by
the enactment of KRS 411.182 such that appellants' negligence
should not be confined to their use of the product, but could
also include evidence of their cigarette smoking.
In Reda Pump v. Finck, Ky., 713 S.W.2d 818 (1986),
cited by appellants, the Court held that despite the adoption of
comparative negligence in Hilen v. Hays, Ky., 673 S.W.2d 713
(1984), KRS 411.320(3) remained in effect in products liability
cases because the statute specifically applied to products
liability cases.
After the enactment of KRS 411.182, the Court,
in Ingersoll-Rand Co. v Rice, Ky. App., 775 S.W.2d 924 (1988),
held that KRS 411.182 adopted comparative negligence in products
liability cases and, thus, it superseded KRS 411.320(3) and
statutorily overruled Reda Pump, supra.
Smith v. Louis Berkman
Co., 894 F. Supp. 1084 (W.D. Ky. 1995) also recognized that KRS
411.320 did not survive the adoption of KRS 411.182.
Likewise,
in Caterpillar, Inc. v. Brock, Ky., 915 S.W.2d 751 (1996), the
Court held that KRS 411.182 repealed KRS 411.320 by implication.
However, just when it appeared that the issue had finally been
resolved, the Supreme Court came out with Monsanto Co. v. Reed,
Ky., 950 S.W.2d 811 (1997), wherein it reaffirmed the holding in
Reda Pump, supra, and held that the Products Liability Act (KRS
411.300-KRS 411.340) still applies to claims arising from the use
of products.
Interestingly, the Court made no mention of KRS
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411.182, Ingersoll-Rand Co., supra, or Caterpillar, Inc., supra,
in the opinion.
As we see it, the above-stated conflict in the case law
is of no concern to Coyle's case since his action was filed on
July 14, 1988, prior to the effective date of KRS 411.182, and
KRS 411.182 cannot be applied retroactively.
supra.
Ingersoll-Rand Co.,
Under the law existing at the time Coyle's action arose
(Reda Pump, supra), there is no question that KRS 411.320(3)
would apply to his case.
Accordingly, a contributory negligence
instruction would be improper since there was no evidence of
Coyle's negligence as to use of the product.
Parrish's action, however, was filed on October 26,
1990, and his testimony at trial established that his cause of
action arose in 1989 (after the effective date of KRS 411.182)
when he was first informed of his asbestosis diagnosis.
must address the conflicting Supreme Court opinions.
Thus, we
Upon a
closer reading of the facts in Monsanto Co., supra, we see that
it was concerned only with sections (1) and (2) of KRS 411.320
(alteration and modification of a product) and did not address
section (3) (negligence in the use of the product), which is the
section relevant to the case at bar.
Further, the Court's
holding in Monsanto appears to be based on the common law
principle set out in Section 388 of the Second Restatement of
Torts that a plaintiff is barred from recovering if the product
was not used in its original, unaltered, and unmodified
condition.
Thus, we deem Monsanto to be distinguishable from the
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instant case.
Therefore, the law in Ingersoll-Rand Co., supra,
would be controlling and the principles of comparative negligence
under KRS 411.182 would apply.
Accordingly, as to Parrish's
claim for the increased likelihood of contracting cancer in the
future, a comparative fault instruction would be warranted.
Given our rulings above, we vacate and remand as to
both appellants for new trials consistent with the dictates of
this opinion.
As an advisory matter, we shall nevertheless
address some of the remaining issues raised by appellants that
may arise again on remand.
Appellants argue that the allocation of fault
instructions placed undue emphasis on appellants' comparative
negligence.
Appellants complain that the error in giving the
previously discussed comparative fault instruction was compounded
by the following language in the allocation of fault instruction:
Further, if you found under Instruction No. 6
that Plaintiff failed to exercise that degree
of care for his own health and safety as
expected of a reasonably prudent person under
the same or similar circumstances, and that
such failure was a substantial factor in
causing his claimed injury, you will also
determine and indicate below . . . his share
of the total fault.
This issue would only be pertinent to Parrish on remand
since only he would receive a comparative fault instruction (as
to the cancer claim).
In our view, there is nothing improper in
the above-stated portion of the allocation of fault instruction.
It simply clarified what the jury was to do after the initial
finding that the plaintiff was at fault.
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Appellants also argue that the trial court improperly
instructed the jury to allocate fault to other entities besides
appellee.
KRS 411.182(1)(b) provides:
(1) In all tort actions, including
products liability actions, involving fault
of more than one party to the action,
including third-party defendants and persons
who have been released under subsection (4)
of this section, the court, unless otherwise
agreed by all parties, shall instruct the
jury to answer interrogatories or, if there
is no jury, shall make findings indicating:
(b) The percentage of the total fault of
all the parties to each claim that is
allocated to each claimant, defendant, thirdparty defendant, and person who has been
released from liability under subsection (4)
of this section.
It has been held that apportionment can only occur
between or among parties named in the plaintiff's complaint,
parties before the court, or parties who have "bought their peace
from the litigation by way of releases or settlements."
Bass v.
Williams, Ky. App., 839 S.W.2d 559, 564 (1992); Floyd v. Carlisle
Construction Co., Inc., Ky., 758 S.W.2d 430 (1988); and Copass v.
Monroe County Medical Foundation, Inc., Ky. App., 900 S.W.2d 617
(1995).
Thus, so long as there is sufficient evidence of the
tortfeasor's fault (see Floyd, supra), it is proper to give an
apportionment instruction as to any tortfeasor who was named as a
party to the complaint or who had previously settled with
plaintiff.
Specifically, appellants argue it was error to instruct
the jury to apportion fault against Nicolet, an asbestos
manufacturing company, which was never made a party to the action
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and with which appellants never settled.
We agree.
In Baker v.
Webb, Ky. App., 883 S.W.2d 898 (1994), the Court held it was
reversible error for the court to instruct a jury to allocate
fault to a non-settling non-party.
Parrish argues that the court improperly instructed the
jury to apportion fault against Parrish's employer, LWC, which
the jury found was 10% at fault.
LWC was not ever named a party
to the action herein, but prior to trial, Parrish settled a
workers' compensation claim with LWC based on the resultant
disability from the asbestos exposure.
First, as this was a
product's liability action, we see no justification for
apportioning fault to LWC since it had nothing to do with the
"manufacture, construction, design, formulation, development of
standards, preparation, processing, assembly, testing, listing,
certifying, warning, instructing, marketing, advertising,
packaging or labeling of any product."
See KRS 411.300(1).
was the employee a wholesaler, distributor or retailer.
411.340.
Nor
See KRS
Secondly, in reviewing the record, we do not believe
there was sufficient evidence of the employer's negligence to
warrant an allocation of fault instruction.
For the reasons stated above, the judgments are vacated
and remanded for new trials consistent with this opinion.
GARDNER, JUDGE, CONCURS.
GUDGEL, CHIEF JUDGE, CONCURS IN RESULT ONLY.
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BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF AND ORAL ARGUMENT FOR
APPELLEES:
Kenneth L. Sales
Louisville, Kentucky
John L. Dotson
Louisville, Kentucky
15
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