WILLIAMS v. HARROP INDUSTRIES, INC.

WILLIAMS v. HARROP INDUSTRIES, INC.
2003 OK CIV APP 60
73 P.3d 902
Case Number: 98075
Decided: 03/28/2003
Mandate Issued: 06/23/2003
DIVISION III
THE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION III

MARDELLA WILLIAMS, Plaintiff/Appellant,
v.
HARROP INDUSTRIES, INC., Defendant/Appellee,
and
STARCON CONSTRUCTION COMPANY; A.P. GREEN INDUSTRIES, INC.; THE BABCOCK & WILCOX; DRESSER INDUSTRIES f/k/a Harbison-Walker Refractories Company; MIDAS INTERNATIONAL, INC., f/k/a Enterprise-Black Diamond Corporation; FYREPEL PRODUCTS, INC.; GAF CORPORATION; HONEYWELL, INC.; M.H. DETRICK COMPANY; ASBESTOS CLAIMS MANAGEMENT CORPORATION; NORTH AMERICAN MFG. CO.; NORTH AMERICAN REFRACTORIES COMPANY; RESCO PRODUCTS, INC., f/k/a North State Pyrophyllite Co. Inc.; OWENS CORNING; SANTELER BROTHERS INC.; SCHRIBER INDUSTRIES, INC.; STANDARD ASBESTOS MFG & INSULATION CO.; STAR CONSTRUCTION COMPANY; UNIROYAL, INC.; COMMERCIAL BRICK CORPORATION, f/k/a Wewoka Brick & Tile Company; JOHN DOE NO. 1; JOHN DOE NO. 2; JOHN DOE NO. 3; JOHN DOE NO. 4; JOHN DOE NO. 5; Defendants.

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA

HONORABLE CAROLYN R. RICKS, TRIAL JUDGE

REVERSED AND REMANDED

Charles F. Moser, John W. Norman, Thomas A. Wallace, NORMAN & EDEM, PLLC, Oklahoma City, Oklahoma, for Plaintiff/Appellant,
Murray E. Abowitz, Kayce L. Gisinger, ABOWITZ, TIMBERLAKE & DAHNKE, P.C., Oklahoma City,Oklahoma, for Defendant/Appellee.

OPINION

ADAMS, Presiding Judge:

¶1 Mardella Williams (Williams), the surviving spouse of Andral Lee Williams, Sr. (Employee), appeals from a trial court judgment in favor of Harrop Industries, Inc. (Harrop) on her claim for damages arising out of Employee's death as the alleged result of exposure to asbestos dust in course of his employment by United Clay Pipe Company (Employer) from 1971 to 1973.

¶2 In addressing Williams' claim that summary adjudication was inappropriate, we must examine the pleadings, depositions, affidavits and other evidentiary materials submitted by the parties and affirm if there is no genuine issue as to any material fact and Harrop was entitled to judgment as a matter of law. Perry v. Green,

¶3 According to § 109, no tort action to recover damages for injury to the person or wrongful death "arising out of" a "deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property" may be brought "against any person . . . performing or furnishing . . . construction of such an improvement more than ten (10) years after substantial completion of such an improvement." Williams argues the kiln cars, which included "asbestos rope" cannot be considered an "improvement to real property."

¶4 Harrop argues that the kiln cars were an integral part of the manufacturing process for which the building was constructed and therefore should be considered an improvement to real property. It relies heavily on Ball v. Harnischfeger Corporation,

¶5 The Ball Court never considered the issue of whether the crane and its components were an "improvement to real property" for purposes of § 109. The Court was called upon to answer a certified question from the federal court which assumed the crane was an improvement to real property.

¶6 The Oklahoma Supreme Court did consider the issue of whether a piece of equipment was an "improvement to real property" for purposes of § 109 in Smith v. Westinghouse Electric Corp,

¶7 As the moving party, Harrop had the obligation to provide the trial court with evidentiary material which demonstrated that no genuine material facts were in dispute. See Liberty Bank and Trust Company of Oklahoma City, N.A. v. Bachrach,

REVERSED AND REMANDED

JOPLIN, C.J., concurs; and BUETTNER, J., dissents.

FOOTNOTES

1The record contains a subsequent trial court order making the express findings and directions required in order to make its order regarding Williams' claim against Harrop final. See 12 O.S.2001 § 994(A).

2The certified question, from the United State District Court for the Eastern District of Oklahoma, was posed as follows:

Do the provisions of Oklahoma's statute of repose, Okla.Stat. tit. 12 § 109, apply to the manufacturer of a product, which upon installation is determined to be an improvement to real property?

Ball