Lois Black v. A.C.&S., Inc., et al.

 
 
Attorneys for Appellants
    
Robert E. Paul
Philadelphia, PA

Mark K. Dudley
Indianapolis, IN

Attorneys for Amici Curiae

Jon L. Williams
Indianapolis, IN
Janet E. Golup
Philadelphia, PA
Attorney for Asbestos Corporation Ltd. and Bell Asbestos Mines, Ltd.

George T. Patton, Jr.
Stephanie F. Holtzlander
Bryan H. Babb
Indianapolis, IN
Attorneys for Indiana Legal Foundation

Michael R. Fruehwald
Andrew J. Detherage
Shelese Emmons
Indianapolis, IN
Attorneys for Indiana Manufacturers Association and Indiana Chamber of Commerce

W. Russell Sipes
Indianapolis, IN
Attorney for Indiana Trial Lawyers Association

Attorneys for Appellees

Christopher D. Lee
Todd C. Barsumian
Indianapolis, IN
Attorneys for Combustion Engineering, Inc.
 
Amber L. Achilles
Kenneth Gorenberg
Chicago, IL
Attorneys for North American Refractories, Inc.

Raymond L. Faust
Suzette Vandivier Sims
Indianapolis, IN
Attorneys for Brand Insulations

Douglas B. King
James M. Boyers
Indianapolis, IN
Attorneys for Rapid American Corp.

Susan E. Mehringer
Indianapolis, IN
Attorney for AC & S

Gus Sacopulos
Terre Haute, IN
Attorney for Universal Refractories

Steven D. Hardin
Noblesville, IN
Attorney for Owens Corning

Roger E. Podesta
Karin S. Schwartz
New York, NY
Attorneys for Owens Corning

Randall J. Nye
Hammond, IN
Attorney for General Refractories Co.

Knight Anderson
Indianapolis, IN
Attorney for Kennedy Tank & Manufacturing Co.

Michael A. Bergin
Julia Blackwell Gelinas
Daniel M. Long
Indianapolis, IN
Attorneys for William A. Pope Co. & AlliedSignal, Inc.

 
     IN THE INDIANA SUPREME COURT LOIS BLACK, Administratrix of the Estate of Willie Black, deceased, and widow in her own right, Appellant (Plaintiff below ),

v.

A.C. & S., INC., A & M INSULATION COMPANY, A.P. GREEN SERVICES, INC., BRAND INSULATIONS, INC., COMBUSTION ENGINEERING, INC., GENERAL REFRACTORIES, NORTH AMERICAN REFRACTORIES, OWENS CORNING FIBERGLAS, RAPID AMERICAN CORP., UNIVERSAL REFRACTORIES, and WILLIAM A. POPE CO.,
Appellees (Defendants below).

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)    Supreme Court No.
)    45S04-0303-CV-124
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    APPEAL FROM THE LAKE SUPERIOR COURT
    The Honorable Jeffery J. Dywan, Judge
    Cause No. 45D01-9807-CT-521

 
ON PETITION TO TRANSFER

 
 
March 25, 2003
 
SULLIVAN, Justice.
 
 
    Willie Black was employed at the Gary Works plant of USX Steel from 1956 to 1983 as a blast furnace worker. During his employment, Mr. Black was exposed to and inhaled dust emitted from asbestos products. Mr. Black died from lung cancer on August 1, 1996. On July 6, 1998, Lois Black, Willie Black's widow, filed a wrongful death and loss of consortium action against the Defendants alleging Mr. Black's death was a result of his exposure to the asbestos dust.

    The Indiana General Assembly has enacted two statutes that limit the period of time within which individuals can file product liability claims. One of these statutes, Ind. Code § 34-20-3-1, generally applies to product liability claims and establishes a ten-year period of repose; we will refer to this statute as "Section 1." The second statute, Ind. Code § 34-20-3-2, specifically applies to certain asbestos liability claims; we will refer to this section as "Section 2." (We note that prior to recodification in 1998, Sections 1 and 2 appeared at Ind. Code § 33-1-1.5-5 and § 33-1-1.5-5, respectively.)

    In the present case, the Defendants argue that Section 2 only applies to a limited class of defendants and that they do not fall within that class. As such, certain Defendants contend that Ms. Black must proceed against them under the more time restrictive Section 1. Ms. Black responds that the statutory scheme violates both art. I, § 12, and art. I, § 23, of the Indiana Constitution.

The trial court agreed with the Defendants that Section 2 did not apply to them since the Defendants had "established that they were not miners and sellers of commercial asbestos [and] Plaintiff does not argue that any of these defendants were miners or manufacturers of commercial asbestos," and that the Section 1 statute of repose had expired prior to the accrual of Ms. Black's claims. See footnote (R. at 1827-28.)

    The Indiana Court of Appeals reversed the grant of summary judgment based on the statute of repose after finding Section 2 was ambiguous. When interpreting the ambiguity, the Court of Appeals read the Section 2 phrase "miners and sellers" as "miners or sellers." Black v. ACandS, Inc., 752 N.E.2d 148, 152-55 (Ind. Ct. App. 2001). Consequently, the Court of Appeals found that summary judgment was improper for the Defendants who sold asbestos-containing products since those claims fall under Section 2.
    
We hold today in AlliedSignal v. Ott, No. 02S04-0111-CV-599 (Ind. Mar. 25, 2003), that the Legislature consciously intended to subject to Section 2 only those entities that produce raw asbestos, while leaving those who sell asbestos-containing products within the ambit of Section 1. We also hold that the statutory scheme does not violate either art. I, § 12 or art. I, § 23, except in the limited circumstance where a reasonably experienced physician could have diagnosed the plaintiff with an asbestos-related illness or disease within the ten-year statute of repose, yet the potential plaintiff had no reason to know of the diagnosable condition until the ten-year period had expired.

Our reasoning in that case applies here, and we reach the same result: since the ev idence did not demonstrate that any of the Defendants both mined and sold commercial asbestos, Section 2 did not apply. Since the Blacks' claims do not fall under Section 2, the general ten-year statute of repose found in Section 1 applies. Given that the Blacks' claims were filed after the expiration of the period of repose, summary judgment for the Defendants was proper unless a reasonably experienced physician could have diagnosed Mr. Black with an asbestos-related illness or disease within the ten-year statute of repose, yet Mr. Black had no reason to know of the diagnosable condition until the ten-year period had expired. We direct the trial court to examine this possibility on remand.
 
Conclusion
 

    We grant transfer pursuant to Indiana Appellate Rule 58(A), thereby vacating the opinion of the Court of Appeals. We vacate the judgment of the trial court and remand for further proceedings consistent with this opinion.
 
SHEPARD, C.J., and BOEHM, J., concur. DICKSON, J., dissents with separate opinion, in which RUCKER, J., concurs.
DICKSON, Justice, dissenting.

    Asbestos-related cancer does not manifest itself until ten to twenty-five years after exposure. I believe that the General Assembly, for reasons of compassion, fairness, and justice enacted Indiana Code § 34-20-3-2 to provide relief for all asbestos victims from the general ten-year statute of repose in the Indiana Product Liability Act. Consistent with this legislative intent, I believe that the phrase "persons who mined and sold" means "persons who mined and persons who sold" and that "commercial asbestos" includes not only raw asbestos but also asbestos in commercial products. I further believe that, under the majority's restrictive construction of this section, application of the product liability statute of repose to the plaintiffs' claims violates both Section 12 and Section 23 of Art icle 1 of the Indiana Constitution. My reasons are detailed in Allied Signal, Inc. v. Ott, ___ N.E.2d ___ (Ind. 2003) (Dickson, J., dissenting).

    RUCKER, J., concurs.

Footnote: The trial court also granted the summary judgment motions of ACandS, Inc., Rapid-American Refractories, Universal Refractories, and Brand Insulations, Inc., based on a lack of evidence that Mr. Black was exposed to their asbestos-containing products. No issue in relation to these su mmary judgment orders is raised on appeal.
In addition, the trial court granted the summary judgment motions of A & M Insulation Co. and William A. Pope Co., neither of which present issues raised on appeal.