ALICE WHITE, INDIVIDUALLY, AND OF THE ESTATE OF ELDON WHITE v. CARDINAL INDUSTRIAL INSULATION CO., INC.
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RENDERED: APRIL 13, 2007; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-002182-MR
ALICE WHITE, INDIVIDUALLY, AND
AS ANCILLARY EXECUTRIX
OF THE ESTATE OF ELDON WHITE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 04-CI-006196
CARDINAL INDUSTRIAL INSULATION
CO., INC.
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE: COMBS, CHIEF JUDGE; MOORE, JUDGE; HENRY,1 SENIOR JUDGE.
COMBS, CHIEF JUDGE: Alice White, individually, and as ancillary executrix of the
estate of Eldon White, appeals from a summary judgment of the Jefferson Circuit Court
of September 28, 2005, dismissing this action against Cardinal Industrial Insulation Co.,
Inc. White contends that the trial court erred in summarily concluding that Cardinal was
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Senior Judge Michael L. Henry, sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
entitled to judgment as a matter of law. We agree. Accordingly, we vacate and remand
for further proceedings.
Eldon White was employed at General Electric’s Appliance Park in
Louisville from the early 1950’s through the mid-1990’s. During his forty-year tenure,
White worked in various capacities: as a production worker, in central maintenance and
rotary vac maintenance, and as a pipe-fitter. After his retirement, he was diagnosed with
asbestosis and malignant mesothelioma, a cancer associated solely with the inhalation of
asbestos bodies or fibers. He died on August 1, 2004. Both asbestos bodies and asbestos
fibers were found in lung tissue taken at the time of autopsy. The autopsy confirmed the
diagnoses of asbestosis and mesothelioma resulting from White’s exposure to asbestos.
Cardinal is an insulation distributor-contractor and asbestos abatement
contractor. Along with several other insulation distributor-contractors, Cardinal worked
at Appliance Park between the mid-50’s and the mid-80’s on hundreds of insulation
construction and maintenance projects as well as asbestos abatement projects. Cardinal
was involved with the handling of asbestos-containing products at Appliance Park during
the period of White’s employment.
Before his death, White filed a complaint against Cardinal and alleged that
his exposure to asbestos was attributable -- at least in part -- to Cardinal’s work at
Appliance park. Cardinal denied the claim, and the parties embarked upon a considerable
period of discovery. On August 11, 2005, Cardinal filed a lengthy motion for summary
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judgment, arguing that White’s estate had failed to show that Cardinal’s work at
Appliance Park was the legal cause of his death.
On September 28, 2005, the trial court granted Cardinal’s motion for
summary judgment, reasoning as follows:
Plaintiff has established . . . that Mr. White worked around
asbestos during his employment with GE. The evidence in
the record also indicates that, while Cardinal Industrial
installed asbestos and performed asbestos abatement at GE’s
Appliance Park, it was not the exclusive source of the
product. Plaintiff has failed to produce any evidence that Mr.
White was exposed to asbestos due to Cardinal’s activities . . .
. [I]t appears that Plaintiff’s claim must fail for failure to
show causation. . . .
The court held that a mere possibility of causation is insufficient to prove causation, and
where the “probabilities are at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.” Memorandum and Order at 3, citing Savill v. Hodges,
460 S.W.2d 828, 830 (Ky. 1970). This appeal followed.
White’s estate contends that the presence of genuine issues of material fact
in this case precludes the entry of summary judgment. Cardinal counters by arguing that
White’s estate failed to prove that his exposure to asbestos was linked to Cardinal. Since
it failed to establish that Cardinal's activities were the legal cause of his death, entry of
summary judgment was warranted.
Summary judgment is appropriate where there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Ky.R.Civ.P. (CR)
56. “The record must be viewed in a light most favorable to the party opposing the
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motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest,
Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary
judgment is proper only where the movant shows that the adverse party could not prevail
under any circumstances. Id. citing Paintsville Hosp. Co. v. Rose, 683 S.W.2d 255 (Ky.
1985). Thus, Kentucky's stringent standard governing a court in reviewing the propriety
of summary judgment dictates that it may be granted only where it appears impossible
for the non-moving party to produce evidence at trial warranting judgment in his favor.
Id. at 482.
An actor’s negligent conduct is a legal cause of harm to another if that
conduct is a substantial factor in bringing about the injury and if there is no rule of law
relieving him from liability under the circumstances. Bailey v. North American
Refractories Co., 95 S.W.3d 868, 871 (Ky.App. 2001). The existence of legal cause is
generally intertwined with facts that must be resolved by a jury. Id. at 872. It becomes a
question of law for the court only where the facts are undisputed and are susceptible
of only one inference. Id. (Emphasis added). While the claimant bears the burden of
proving legal causation, it may be established by a quantum of circumstantial evidence
from which a jury may reasonably infer that the product (or activity) was a legal cause of
the harm. Id. citing Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky. 1970).
Having carefully reviewed the record, we are persuaded that White’s estate
presented a genuine issue of material fact with respect to whether Cardinal’s work at
Appliance Park might have been a substantial factor in White’s death. Cardinal is correct
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that no direct evidence appears to link its activities to White’s exposure to asbestos.
Nonetheless, we are persuaded that adequate circumstantial evidence exists to create a
question of fact as to linkage and causation. Whether that circumstantial evidence
amounts to an adequate quantum from which a jury could actually infer causation
remains to be seen. However, its existence is sufficient to withstand Cardinal’s motion
for summary judgment.
Taken in a light most favorable to White’s estate, the record before the trial
court indicates that White was routinely exposed (both directly and indirectly) to
asbestos-containing materials during his employment with General Electric. Over a
period of many years, he worked in several of the facilities that comprise the Appliance
Park complex. Although White died before he was deposed, the sworn testimony of his
co-workers indicates that he worked throughout Building 5 -- where insulation-containing
asbestos was found in catwalks, in ceilings, and on steam-lines. Louis Bishop, who
worked side-by-side with White in maintenance, was certain that the insulation in the
steam-piping contained asbestos. Oscar McCamant, another co-worker, worked beside
White in production at Building 5. McCamant testified that during the winter, the pipes
would “snow” insulation – thus, exposing the workers to asbestos.
Other evidence indicates that Cardinal installed and repaired asbestos
insulation throughout Appliance Park. In deposition testimony associated with another
proceeding, James Hunter, a former Cardinal employee, testified that Cardinal installed
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asbestos insulation on steam and plumbing pipes in each and every building at Appliance
Park in the late 1950’s and 1960’s.
White’s medical expert, Dr. Arthur Frank, agreed with the diagnoses of
asbestosis and malignant mesothelioma. Within a reasonable degree of medical certainty,
Dr. Frank opined that White’s condition was “caused by his inhalation of asbestos in his
workplace.” Furthermore, Dr. Frank was convinced that “[e]ach and every product, with
each and every type of asbestos, would have contributed to the development of these two
diseases.” According to Dr. Frank, the exposure -- regardless of its manner and no matter
how slight in degree -- contributed to White’s fatal condition. Other evidence tended to
show that Cardinal was aware of the hazardous nature of any exposure to asbestos very
early in its operation.
Our review of the record indicates that far more is involved than a mere
question of law for the court’s determination. On the contrary, resolving all doubts in
favor of the estate -- as we must at this juncture, we conclude that the evidence presented
to the trial court was sufficient to permit a reasonable inference that Cardinal’s activities
might have been a legal cause of White’s exposure to asbestos and his resulting death.
The estate succeeded in demonstrating that a genuine issue of material fact exists with
respect to causation. Consequently, we conclude that summary judgment was improperly
(or at least prematurely) entered.
Cardinal argues that we have an alternate basis to affirm the summary
judgment. Cardinal asserts that as a matter of law (relying upon Consolidated
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Contractors Inc. v. Wilcoxen, 252 S.W.2d 429 (Ky. 1952)), it cannot be held liable for
White’s injuries because the disputed insulation was installed in conformity with the
specifications included in its construction contract with General Electric. In Wilcoxen,
the building contractor sued a plumbing sub-contractor for negligence after a basement
was flooded. The contractor alleged that the plumbers should not have brought water
into the building until after the fixtures had been connected or that they should have
safeguarded the water line against vandals. The court held that a contractor could not be
held liable for the willful or negligent acts of third persons where he had no reason to
anticipate the wrongful conduct. Additionally, since there was no obvious defect in the
specifications of the plumbing contract and the plumbers were not otherwise negligent,
they could not be held liable for damages resulting from the installation of the water line.
We are not persuaded that Wilcoxen is either pertinent or analogous to the
case before us. Cardinal’s work was not simply a matter of installing materials in proper
fashion; that is not the issue. Instead, its liability is premised upon whether it supplied
and installed a hazardous material to areas where General Electric’s employees were
likely to suffer the effects of exposure. White alleged that the dangers associated with
exposure to asbestos became widely known in the insulation distribution and installation
industry at the very time that Cardinal was engaged in the many projects undertaken
throughout Appliance Park. He also alleged that Cardinal negligently handled the
asbestos and that it failed to protect him from dangerous exposure. Facts in support of
these allegations can be reasonably inferred from the material that White submitted for
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the court's review in challenging Cardinal’s motion for summary judgment. We cannot
agree that Cardinal’s status as an independent contractor shields it from liability under
these circumstances. See Garland v. Tennessee Valley Authority, 336 F.3d 455 (6th Cir.
2003). Consequently, Cardinal was not entitled to judgment as a matter of law on this
basis.
Finally, Cardinal contends that it is not subject to a products liability action
since it is not a seller or manufacturer of goods. We disagree. The Supreme Court of
Kentucky has concluded that products liability standards apply to “any person engaged
in the business of supplying products for use or consumption, including any
manufacturer of such a product and any wholesale or retail dealer or distributor.” See
Embs v. Pepsi Cola Bottling Co., 528 S.W.2d 703, 704-705 (Ky. 1975) (Emphasis
added). The evidence before the trial court reveals that Cardinal regularly distributed
asbestos-containing materials that were regarded as unreasonably dangerous by the
scientific and medical community -- as well as by the industry. Consequently, Cardinal
was not entitled to judgment as a matter of law on this basis.
Cardinal’s motion to strike the estate’s reply brief is hereby DENIED. The
summary judgment dismissing the claims of Alice White, individually, and as ancillary
executrix of the estate of Eldon White, against Cardinal is vacated. We remand this case
for further proceedings.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Kenneth L. Sales
Joseph D. Satterley
D. Matthew Kannady
Louisville, Kentucky
Armer H. Mahan, Jr.
Joseph P. Hummel
Louisville, Kentucky
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