Attorneys for Appellant
Donald J. Berger
South Bend, IN
Robert G. McCoy
Mark R. Penney
Chicago, IL
Attorneys for Appellees
David A. Temple
Indianapolis, IN
Attorney for John Crane, Inc.
Thomas W. Hayes
Long Grove, IL
Attorney for John Crane, Inc.
Thomas S. Ehrhardt
Crown Point, IN
Attorney for WTI Rust Holdings, Inc.
IN THE
INDIANA SUPREME COURT
CAROL JURICH, Individually and as Special Administrator of the Estate of
NICHOLAS JURICH,
Appellant (Plaintiff below),
v.
GARLOCK, INC., A.C. AND S., INC., ANCHOR PACKING CO., A.W. CHESTERTON CO.,
ILLINOIS INSULATION CO., JOHN CRANE CO., J.P. BUSHNELL PACKING & SUPPLY,
LUSE-STEVENSON CO., METROPOLITAN LIFE INSURANCE CO., NORTH AMERICAN
REFRACTORIES, OWENS-CORNING FIBERGLAS CORP., PITTSBURGH CORNING CORP., PAUL
J. KREZ CO., PPG INDUSTRIES, RAPID AMERICAN CORP., SWINDELL-DRESSLER
INTERNATIONAL CO., W.R. GRACE & CO.-CONN., WTI RUST HOLDINGS, INC., DAVY
MCKEE EQUIPMENT CORP.,
Appellees (Defendants below).
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APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Jeffery J. Dywan, Judge
Cause No. 45D01-9704-CT-345
ON PETITION TO TRANSFER
March 25, 2003
SULLIVAN, Justice.
Nicholas Jurich worked for Inland Steel in East Chicago, Indiana,
from 1946 to 1986. It is undisputed that during the course of his
employment, Mr. Jurich worked with and around various asbestos-containing
products and materials initially distributed by the Defendants.
Mr. Jurich was diagnosed with mesothelioma on October 10, 1996, more
than ten years after his retirement from Inland Steel. On April 3, 1997,
he and his wife, Carole Jurich, filed a complaint against numerous
defendants seeking personal injuries and loss of consortium. Mr. Jurich
died of mesothelioma on November 19, 1997. Carole Jurich subsequently
amended the complaint to allege that his death had been caused by the same
exposure to asbestos.
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. Jurich must proceed
against them under the more time restrictive Section 1. [1] Ms. Jurich
responds that even if she is not permitted to proceed against the
Defendants under Section 2, Section 1 is unconstitutional under both
Article I, § 12, and Article I, § 23 of the Indiana Constitution.
The trial court agreed with the Defendants that Section 2 did not
apply to them and that the Section 1 statute of repose had expired prior to
the accrual of Mr. Jurich’s claims.
The Indiana Court of Appeals reversed the summary judgment order and
found that Section 2 did not apply to the Defendants but then found the
statute of repose to be unconstitutional as applied under Article I, § 12,
of the Indiana Constitution. Jurich v. Garlock, Inc., 759 N.E.2d 1066,
1077 (Ind. Ct. App. 2001).
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.[2] 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
Juriches’ claims do not fall under Section 2, the general ten-year statute
of repose found in Section 1 applies. Given that the Juriches’ 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. Jurich with an asbestos-related illness or disease
within the ten-year statute of repose, yet Mr. Jurich 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). 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 plaintiff's 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 Defendants moving for summary judgment based on the statute of
repose included: Anchor Packing Co.; Garlock, Inc.; John Crane Co.; WTI
Rust Holdings; and Pittsburgh Corning (whose motion was not before the
trial court at the time of its order due to ongoing bankruptcy
proceedings).
[2] The reasoning used to get to this conclusion is very similar to that
used by Judge Barnes in Part II of the Court of Appeals’ opinion. Given
that, we adopt that part of Judge Barnes’s opinion.