George E. Purdy
George T. Patton
Stephanie F. Holtzlander
J. Taggart Birge
Bose, McKinney, & Evans
Attorneys for Amicus Curiae,
Defense Trial Counsel of Indiana
Julie Blackwell Gelinas
Nelson D. Alexander
T. Joseph Alexander
Lock, Reynolds, Boyd, & Weisell
James D. Johnson
Mattingly, Rudolph, Fine, & Porter, LLP
Attorneys for Appellees/
Nancy G. Endsley
Landman & Beatty
W. Russell Sipes
Laudig, George, Rutherford, & Sipes
Allard A. Allston, III
Ness Motley Loadholt Richardson & Poole
Charleston, South Carolina
Attorneys for Amicus Curiae,
Indiana Trial Lawyers Association
James O. McDonald
Everett, Everett, & McDonald
Terre Haute, Indiana
Max E. Goodwin
Hansford C. Mann
Bruce D. Aukermann
Mann Law Firm
Terre Haute, Indiana
Attorney for Amicus Curiae,
Indiana State afl-cio
William R. Groth
Fillenwarth, Dennerline, Groth, & Towe
IN THE INDIANA SUPREME COURT
OWENS CORNING FIBERGLASS CORP.,
Appellant/Cross-Appellee (Defendant below)
) ) Supreme Court No. ) 49S04-0001-CV-00033
DAVID COBB and Melissa Hinds, As Personal Representatives of the Estate of Kenneth
Cobb, Deceased, ) Court of Appeals No.
APPEAL FROM THE MARION COUNTY SUPERIOR COURT, CIVIL, NO. 2
The Honorable Kenneth H. Johnson, Judge
Cause No. 49D02-9501-MI-1-47
September 10, 2001
Cobb specialized in working on refrigeration, air conditioning and heating systems, and pneumatic
control systems. For 40 years, Cobbs work required that he remove and
replace asbestos insulation and wallboard, walk on asbestos blankets, disrupt asbestos-containing insulation as
he worked on various systems, and cut and fit asbestos tubing, pipe, and
On July 24, 1996, Cobb filed a complaint against 33 manufacturers
or distributors of asbestos, including Owens Corning Fiberglas Corporation (Owens Corning). Cobb
claimed that the defendants:
produced, sold and otherwise put into, or caused to be put into, the stream of interstate commerce, asbestos and asbestos-containing materials which Defendants knew, or in the exercise of ordinary care should have known were deleterious, poisonous and highly harmful to [Cobbs] body, lungs, respiratory system, skin and health. [Cobb] was exposed to and inhaled, ingested or otherwise absorbed great amounts of asbestos fibers causing him to develop the asbestos disease, asbestosis, and lung cancer.
Cobb sought both compensatory and punitive damages under product liability theories of negligence, strict liability and breach of warranty. In July 1996, Cobb also sought and was granted an expedited jury trial because his lung cancer had metastasized to his brain and he did not have a long life expectancy.
Owens Corning filed its answer on August 19, 1996. Among the 34
affirmative defenses Owens Corning asserted, it reserved the right to object to any
settlement and subsequent dismissal of any defendant. Owens Corning also asserted a
reserved right to amend its answer to specifically delineate those defendants as settling
non-party defendants, to request that the court add those defendants to any verdict
form submitted to the jury, and to claim credit for any amounts received
by the plaintiff from those defendants.
On September 26, 1997, Cobb filed a motion for partial summary judgment against
Owens Corning as to its affirmative defenses, asserting that Owens Corning had not
presented sufficient evidence to support them. On November 4, 1997, the trial
court granted Cobbs motion for partial summary judgment with respect to all of
the affirmative defenses set out in Owens Cornings original answer except for the
defense of contributory fault.
Also on September 26, 1997, Owens Corning filed a motion for summary judgment
based upon lack of product identification, arguing that, in his deposition, Cobb had
failed to provide any evidence proving that he was exposed to asbestos-containing products
manufactured or distributed by Owens Corning. On October 28, 1997, the trial
court denied without comment Owens Cornings motion for summary judgment based upon lack
of product identification. The trial courts ruling against Owens Corning on this
motion is one of the two issues in this appeal.
On October 15, 1997, Owens Corning also filed a motion for leave to
amend its answer by adding as identified non-parties the names of the defendants
with whom Cobb had settled, the Johns-Manville Trust, and other entities which caused
or contributed to Cobbs injuries and had not been joined as defendants.
In its order issued November 4, 1997, the trial court granted Owens Cornings
motion to amend its answer as to the non-party defense of one non-party,
Rutland Fire Clay, but denied it in all other respects. The trial
courts ruling against Owens Corning on this motion is the other of the
two issues in this appeal.
After an eight-day trial in November 1997, a jury rendered its verdict in
favor of Cobb. The jury awarded Cobb $689,782 in compensatory damages, (which
was offset by $145,100 that had previously been paid to Cobb by other
defendants), $15,000,000 in punitive damages, and $100 in court costs.
See footnote Owens Corning
appealed the trial courts ru
lings on the product identification and non-party defense motions.
The Court of Appeals reversed the trial courts judgment on the product
identification issue, directing the trial court to enter an order granting Owens Cornings
motion for summary judgment, and rendering the non-party defense issue moot. See
Owens Corning Fiberglas Corp. v. Cobb, 714 N.E.2d 295, 303-04 (Ind. Ct. App.
1999). Having previously granted transfer, we now review the trial courts rulings
on the parties product identification and non-party defense motions.
Additional facts will be provided as necessary.
Summary judgment is appropriate only if the pleadings and evidence sanctioned by the
trial court show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Ind. Trial Rule 56(C); see also Shell Oil Co. v.
Lovold Co., 705 N.E.2d 981, 983-84 (Ind. 1998). On a motion for
summary judgment, all doubts as to the existence of material issues of fact
must be resolved against the moving party. See T. R. 56(C); see
also Butler v. City of Peru, 733 N.E.2d 912, 1915 (Ind. 2000); Stapinski
v. Walsh Const. Co., 395 N.E.2d 1251,1253 (Ind. 1979). Additionally, all facts
and reasonable inferences from those facts are construed in favor of the nonmoving
party. Stapinski v. Walsh Const. Co., 395 N.E.2d at 1253. If
there is any doubt as to what conclusion a jury could reach, then
summary judgment is improper. See Hall Bros. Const. Co., Inc. v. Mercantile
Natl Bank of Indiana, 642 N.E.2d 285, 289 (Ind. Ct. App. 1994) (If
a jury could come to different conclusions from the undisputed facts, then summary
judgment is inappropriate.); see also Bochnowski v. Peoples Fed. Sav. & Loan Assn,
571 N.E.2d 282, 285 (Ind. 1991); Woodward Ins., v. White, 437 N.E.2d 59,
62 (Ind. 1982) (Summary judgment should not be granted if the facts give
rise to conflicting inferences which would alter the outcome.).
Owens Corning contends that the record at summary judgment showed that Cobb could
not identify a single occasion at which he had been exposed to Kaylo.
(Br. of Appellant/Cross-Appellee in Oppn to Pet.to Transfer at 5.) Therefore,
according to Owens Corning, one could only speculate as to whether Cobb had
been exposed to Owens Cornings product, and testimony based on conjecture or speculation
is insufficient to support a claim. (Id. at 7.)
Cobb presented evidence that he was exposed to Kaylo asbestos when he worked
as a pipe fitter for the Indianapolis Public Schools (IPS).
See footnote In
his deposition, Cobb stated that while working for IPS he worked at multiple
sites where Kaylo asbestos products were being used. He remembers seeing the
boxes of the Kaylo asbestos products at some of the sites. And
although Cobb did not install the asbestos products, he worked near other workers
who did. Cobb also testified that he removed pipe covering and was
xposed to asbestos dust as a result.
Owens Corning contends, based on Cobbs deposition, that Cobb was not certain whether
he was exposed to Kaylo.
See footnote Owens Corning argues, Cobb could not recall
the identity of a single specific worksite in which he actually observed workers
installing Kaylo. (Appellant/Cross-Appellee Br. at 5). Owens Corning also points out
lthough Cobb removed pipe covering, he did not know whose product he
Cobbs evidence was sufficient to establish a genuine issue of material fact as to whether Owens Cornings asbestos caused his injuries. While Owens Corning succeeded in identifying areas of uncertainty in the record, they did not show that Cobb would not be able to prove causation. The Court of Appeals stated, Cobbs testimony place[d] an undetermined number of boxes containing Kaylo at an undetermined number of job sites at which he worked. Owens, 714 N.E.2d at 303. However, Cobbs testimony established that Cobb worked at multiple sites where asbestos products were used; Cobb worked near people installing pipe insulation containing asbestos; and boxes of Kaylo pipe insulation products were present on the work sites. We find it to be a reasonable inference, not conjecture or speculation, that the insulation from the Kaylo boxes was being installed at the worksites where it was present and not simply being stored there.
Under Indiana's comparative fault statute, a named defendant may assert a "nonparty" defense,
seeking to attribute fault to a nonparty rather than to the defendant.
See Ind. Code § 34-4-33-10(c) (1993);
see also Mendenhall v. Skinner & Broadbent
Co., Inc., 728 N.E.2d 140, 142 (Ind. 2000). The Comparative Fault Act
modifies the common law rule of contributory negligence which precluded a victim from
recovering damages if the victim was even slightly negligent. See Mendenhall at
142; Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669,
672 (Ind.1991). The Act permits a jury to allocate fault among parties.
The burden of proof of a nonparty defense is upon the defendant,
who must affirmatively plead the defense. See Ind. Code § 34-4-33-10(b) (1993).
Cobbs complaint named multiple parties as defendants. In its answer, Owens Corning
included affirmative defenses that indicated its intent to assert nonparty defenses with respect
to any named defendants with whom Cobb settled prior to trial and to
any entities with whom Cobb may have settled prior to filing his complaint.
The pleading was general in nature and did not name any specific
nonparties that Owens Corning would include in the action.See footnote
On September 26, 1997, Cobb made a motion for partial summary judgment as
to Owens Cornings affirmative defenses. Cobb argued that there was no evidence
in the record by which Owens Corning could meet its burden of proof
as to affirmative d
efenses, including those asserting that a nonparty was responsible for
Cobbs injuries. In his motion, Cobb designated portions of Owens Cornings response
to an interrogatory. The interrogatory requested that Owens Corning disclose the names
of any third parties that Owens Corning believed to be partially responsible for
Cobbs injuries. Owens Corning had responded that this was unknown, pending completion
of discovery, Owens Corning will supplement this interrogatory answer, if necessary, at that
In response to Cobbs motion for summary judgment, Owens Corning did two things.
First, it filed a motion for leave to amend its answer, this
time specifically na
ming each nonparty that it intended to add. Second, it
filed a response to Cobbs motion for summary judgment in order to designate
evidence of each nonpartys fault.
Owens Cornings motion for leave to amend its answer was filed on October
15, 1997. Its proposed amended answer sought to add as identified nonparties
the names of the defendants with whom Cobb had settled, the Johns-Manville Trust,
and other entities that it contended had caused or contributed to Cobbs injuries
and had not been joined as defendants.
Owens Corning filed its opposition to Cobbs motion for summary judgment contemporaneous to
its motion for leave to amend its answer. The opposition to summary
judgment cross-referenced its proposed amended answers and designated evidence as to each party
that it included in the answer. Owens Corning argued that there was
at least a material issue of fact as to whether it would have
been able to meet its burden of proof to show that each proposed
nonparty contributed to Cobbs injuries.
Cobb then replied to Owens Cornings response to his motion for summary judgment
and responded to Owens Cornings motion for leave to amend its answer.
Cobb argued two reasons the trial court should disallow the nonparties proffered by
Owens Corning. First, Cobb argued that some of the parties were not
added in a timely manner according to Indiana Code § 34-4-33-10(c) (1993).See footnote
Second, Cobb argued that Owens Corning did not have sufficient evidence to prove
that a nonparty contributed to Cobbs injuries.
The bottom line on this lengthy procedural recitation is that Cobb sought summary
judgment on two grounds with respect to Owens Cornings nonparty affirmative d
(1) that there was no genuine issue of material fact that the nonparties
were not responsible for Cobbs injuries; and (2) that as a matter of
law Owens Corning was out of time to add nonparty defendants.
As might be expected, the trial court ruled on both Owens Cornings motion
to amend and Cobbs motion for summary judgment at the same time.
The courts order granted Cobbs motion for partial summary judgment as to the
affirmative defenses and denied Owens Cornings amended answer as to all but one
party, Rutland Fire Clay.
See footnote The trial courts order did not explain its
ruling and it is impossible to know whether the trial court could have
excluded nonparties based on Cobbs timeliness argument, his ev
identiary argument, or for some
To the extent that Cobb claimed that there was no evidence that he
had been exposed to asbestos for which Sid Harvey was responsible, Cobb's claim
is the mirror image of that asserted by Owens Corning in the issue
discussed in Part I of this opinion. Had the trial court allowed
Sid Harvey as a nonparty defendant at trial, Owens Corning would have had
the burden of proving that it contributed to Cobbs injuries. But, like
Part I, we find that Owens Corning presented evidence of a genuine issue
of material fact as to Cobbs exposure to Sid Harvey asbestos.
There was designated material in the record that Cobb personally ordered asbestos materials
from Sid Harvey. Cobb testified that he used Sid Harvey Asbestos Retort
and Furnace Cement (which would fracture and fall to the floor releasing asbestos
dust into the air), that he also used Sid Harvey Mica Back Fill
(a loose material that released asbestos fibers into the air as he poured
the material into combustion chambers); and that he used Sid Harvey Sic-Tits and
Sid Harvey asbestos rope packing around boiler and furnace doors as insulation which
was dusty when he scraped it. Cobb testified that he used these
asbestos-containing products on almost every job site from 1964 through 1977, a period
of 13 years. In fact, in response to Owens Corning's designated evidence,
Cobb said in his reply brief that Owens Corning "provide[d] sufficient evidence of
exposure to avoid summary judgment as to [Sid Harvey]."
Cobb also made a legal argument as to why he was entitled to
summary judgment as a matter of law. He contended that many of
the nonparty defendants that Owens Corning sought to add were not added in
a timely manner and were therefore barred by Ind. Code § 34-4-33-10(c) (1993).
The Products Liability Act limits a defendants liability according to its proportion of
fault. Ind. Code § 34-20-7-1. Because of this, there is an
incentive for defendants to include nonparties who will share in a proportion of
To ensure fairness to the plaintiff, the burden of pleading and proving the
specific name of the nonparty is on the defendant.
Cornell Harbison Excavating,
Inc. v. May, 546 N.E.2d 1186, 1187 (Ind. 1989). Therefore, a defendant
who intends to use a nonparty defense must specifically name the nonparty.
Id. Additionally, Indiana Code § 34-4-33-10(c) requires that a defendant disclose the
identity of nonparty defendants within a certain time frame, thus giving the plaintiff
notice of any nonparty defendants that the defendant intends to add.
The provision requiring notice of nonparty defendants advances the Products Liability Acts policy
of proportional allocation of fault. Giving notice to the plaintiff of nonparty
defendants to be added gives the plaintiff the opportunity to add nonparties as
party defendants. Cornell Harbison, 546 N.E.2d at 1187.
The deadline for naming a nonparty defendant depends upon when the defendant receives
notice of the availability of a certain nonparty to add. Indiana Code
§ 34-4-33-10(c) states:
A nonparty defense that is known by the defendant when [the defendant] files [the defendants] first answer shall be pleaded as a part of the first answer. A defendant who gains actual knowledge of a nonparty defense after the filing of an answer may plead the defense with reasonable promptness. However, if the defendant was served with a complaint and summons more than one hundred fifty (150) days before the expiration of the limitation of action applicable to the claimants claim against the nonparty, the defendant shall plead any nonparty defense not later than forty-five (45) days before the expiration of that limitation of action. The trial court may alter these time limitations or make other suitable time limitations in any manner that is consistent with: (1) giving the defendant a reasonable opportunity to discover the existence of a nonparty defense; and (2) giving the claimant a reasonable opportunity to add the nonparty as an additional defendant to the action before the expiration of the period of limitation applicable to the claim.
Owens Corning knew of all the companies that it intended to add as nonparties well before it named them. On November 1, 1996, Cobb filed a verified disclosure statement that listed the name or type of asbestos-containing product or item to which Cobb was exposed, as well as all of Cobbs former employers that he worked for at the time of each exposure. The list contained all of the parties that Owens Corning subsequently sought to add as nonparty defendants. It appears therefore, that Owens Corning had notice of all these entities as early as November 1, 1996, nearly a year prior to naming them in its October 15, 1997, motion for leave to amend its answer.
Although Owens Corning knew of all the entities early on, many of them
(including Sid Harvey) were named defendants from the outset. We will return
to this category of entities in a moment. The balance of the
entities, however, were never named as defendants and were therefore available for Owens
Corning to add as nonparties at least as early as November 1, 1996.
According to § 34-4-33-10(c), these parties should have been added with reasonable
promptness after November 1, 1996.
See footnote It therefore appears although we do
not decide that the trial courts grant of summary judgment is sustai
on this legal theory with respect to nonparty affirmative defenses relating to these
entities. See Intelogic Trace Texcom Group, Inc. v. Merchants Natl Bank, 626
N.E.2d 839, 846 (Ind. App. Ct. 1993) (a trial court's grant of summary
judgment will be affirmed on any legal theory the evidence of record supports).
The other parties that Owens Corning attempted to add as nonparties had been
named as defendants at the outset of the litigation and subsequently settled with
Cobb or were otherwise dismissed from the action. There were two obvious
consequences of the fact that these parties were named defendants. First, since
they were named defendants, they could not be added as nonparties. Second,
they were known to the plaintiff.
The language of Indiana Code § 34-4-33-10(c) (now
Indiana Code § 34-51-2-16)
that, [a] defendant who gains actual knowledge of a nonparty defense after the
filing of an answer may plead the defense with reasonable promptness. (emphasis
added). Because the former party defendants that Owens Corning sought to add
as nonparties could only have been added as nonparties after they were dismissed
as parties, we hold that for purposes of the statute, Owens Corning acquired
actual knowledge of a nonparty affirmative defense relating to a particular entity only
when it received notice that the entity had been dismissed from the action.
To hold otherwise would be tantamount either to requiring Owens Corning to
do something impossibleassert a nonparty affirmative defense with respect to a named defendantor
to preclude Owens Corning from asserting a nonparty affirmative defense at all with
respect to a former named defendant. We find no support in the
statute or its underlying purposes for either of these alternatives. Rather, it
is clear to us that the notice provisions with respect to nonparty affirmative
defenses are designed, first and foremost, to advise plaintiffs of potential named defendants
from which they may be able to obtain recovery and, secondarily, to put
plaintiffs on notice generally of the contours of the defendant's case at trial.
No violence is done to either of those objectives by permitting a
defendant to assert a nonparty affirmative defense reasonably promptly after receiving notice that
a named party defendant has been dismissed from the lawsuit.
It appears from the record that Owens Corning did not have notice that
efendants settled until just prior to the start of the trial.
This appears to have been the case with respect to Sid Harvey.
We find that Owens Corning therefore named Sid Harvey within a reasonable time
of receiving notice. As to the other entities in this category, it
therefore appears although we do not decide that the trial courts
grant of summary judgment was not sustainable under this legal theory.
SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.