Mark K. Dudley
Attorneys for Amici Curiae
Jon L. Williams
Janet E. Golup
Attorney for Asbestos Corporation Ltd. and Bell Asbestos Mines, Ltd.
George T. Patton, Jr.
Stephanie F. Holtzlander
Bryan H. Babb
Attorneys for Indiana Legal Foundation
Michael R. Fruehwald
Andrew J. Detherage
Attorneys for Indiana Manufacturers Association and Indiana Chamber of Commerce
W. Russell Sipes
Attorney for Indiana Trial Lawyers Association
Attorneys for Appellees
Christopher D. Lee
Todd C. Barsumian
Attorneys for Combustion Engineering, Inc.
Amber L. Achilles
Attorneys for North American Refractories, Inc.
Raymond L. Faust
Suzette Vandivier Sims
Attorneys for Brand Insulations
Douglas B. King
James M. Boyers
Attorneys for Rapid American Corp.
Susan E. Mehringer
Attorney for AC & S
Terre Haute, IN
Attorney for Universal Refractories
Steven D. Hardin
Attorney for Owens Corning
Roger E. Podesta
Karin S. Schwartz
New York, NY
Attorneys for Owens Corning
Randall J. Nye
Attorney for General Refractories Co.
Attorney for Kennedy Tank & Manufacturing Co.
Michael A. Bergin
Julia Blackwell Gelinas
Daniel M. Long
Attorneys for William A. Pope Co. & AlliedSignal, Inc.
Appellant (Plaintiff below ),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.,
) Supreme Court No.
March 25, 2003
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. Blacks claims.
(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
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.
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.
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.