Attorneys for Appellant
Douglas B. King
James M. Boyers
Indianapolis, IN
Attorneys for Dresser Industries
Michael A. Bergin
Julia Blackwell Gelinas
Daniel M. Long
Indianapolis, IN
Attorneys for AlliedSignal, Inc.
Timothy C. Ammer
Cincinnati, OH
Attorney for Navistar Transportation Corp.
Kenneth T. Roberts
Tasha R. Roberts
Indianapolis, IN
Attorneys for Ford Motor Co.
Susan E. Mehringer
Lisa Dillman
Indianapolis, IN
Attorneys for ACandS, Inc.
James E. Rocap, Jr.
Jeffrey B. Fecht
Indianapolis, IN
Attorneys for Fargo Insulation Co., Inc.
Susan Gunty
Chicago, IL
Attorney for Ajax Magnathermic Corp.
Attorneys for Amici Curiae
Jon L. Williams
Indianapolis, IN
Janet E. Golup
Philadelphia, PA
Attorneys for Amici Curiae, Asbestos Corporation limited and Bell Asbestos
Mines, ltd.
Attorneys for Appellees
W. Russell Sipes
Linda George
Kathleen Musgrave
Indianapolis, IN
Robert Paul
Philadelphia, PA
IN THE
INDIANA SUPREME COURT
ALLIEDSIGNAL, INC., ACandS, INC., A.W. CHESTERTON CO., ABEX CORP., AJAX
MAGNETHERMIC CORP., AMCHEM PRODUCTS INC., AMERICAN GAS FURNACE, ARMSTRONG
WORLD
) Supreme Court No.
) 49S02-0303-CV-126
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INDUSTRIES, INC., CHICAGO FIREBRICK CO., CHRYSLER CORP., CLARK EQUIPMENT
CO., CORHART REFRACTORIES, DAP, INC., DRESSER INDUSTRIES, EATON CORP.,
FARGO INSULATION CO., INC., FLEXITALLIC, INC., FORD MOTOR CO., GENERAL
MOTORS CORP., GENERAL REFRACTORIES CO., GREAT AMERICAN PETERBILT, GUARD
LINE INC., HERCULES CHEMICAL CO., INC., HOOSIER GASKET, JOHN CRANE, INC.,
MCMASTER-CARR SUPPLY CO., METROPOLITAN LIFE INSURANCE CO., NAVISTAR
INTERNATIONAL, OWENS-CORNING FIBERGLAS CORP., OWENS-ILLINOIS, INC., PECORA
CORP., RANSOME-CUSHMAN-RYAN, RUTLAND FIRE CLAY, SAGER CORP., SILICON
CONTROL RECTIFIER, T & N, PLC., T & N INDUSTRIES, INC., TAF INTERNATIONAL,
LTD., TBA INDUSTRIAL PRODUCTS, TURNER AND NEWALL, LTD., TURNER & NEWALL,
PLC., TENNANT CO., UNITED STATES GYPSUM CO., UNITED STATES MINERAL PRODUCTS
CO., WAGNER ELECTRIC CO.,
Appellants (Defendants below),
v.
LUCILLE HERRING, on her own behalf and on behalf of the Estate of LOYD
HERRING, Deceased. ,
Appellee (Plaintiff below).
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APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kenneth H. Johnson, Judge
Cause No. 49D02-9501-MI-0001-058
ON PETITION TO TRANSFER
March 25, 2003
SULLIVAN, Justice.
Loyd Herring was employed at Cummins Engine Co., Inc., from 1942 to
1978 as a metallurgist and brake repairman. During the course of his
employment, Mr. Herring was exposed to asbestos and asbestos-containing
products.
Mr. Herring first became aware that he was experiencing a pulmonary
health problem in January 1995. He was diagnosed with malignant
mesothelioma on April 13, 1995. Mr. Herring died on November 22, 1995.
On December 26, 1996, Lucille Herring, Loyd Herring’s wife, filed a
complaint alleging that Mr. Herring’s death was caused by his 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, the Defendants contend that Ms. Herring must proceed
against them under the more time restrictive Section 1. Ms. Herring
responds that if Section 2(d) was restricted to miners and bankruptcy
funds, it would create an impermissible privilege for solvent manufacturers
under art. I, § 23 of the Indiana Constitution and that Section 1, when
applied to asbestos plaintiffs, violates art. I, § 12..
The trial court agreed with Ms. Herring and construed Section 2(d)(1)
to apply to both miners and manufacturers of commercial asbestos, thus
denying the Defendants’ Motions for Summary Judgment.
The Defendants filed a joint interlocutory appeal of the trial
court’s denial of their motions for summary judgment. The Indiana Court of
Appeals affirmed the trial court, finding that Section 2 applied to persons
who mined and persons who sold commercial asbestos. Allied Signal, Inc. v.
Herring, 757 N.E.2d 1030, 1035-36 (Ind. Ct. App. 2001).
We hold today in AlliedSignal, Inc. 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 mined
commercial asbestos, Section 2 did not apply. Since Ms. Herring’s claims
do not fall under Section 2, the general ten-year statute of repose found
in Section 1 applies. Given that Ms. Herring’s 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.
Herring with an asbestos-related illness or disease within the ten-year
statute of repose, yet Mr. Herring 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 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.