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.[1] (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 evidence 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 Article 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.
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[1] 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
summary 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.