Martin v. ACandS, Inc.

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEES

ROBERT E. PAUL See Appendix A
Paul, Reich & Myers, P.C.
Philadelphia, Pennsylvania

MARK K. DUDLEY
Young, Riley, Dudley & Debrota
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

JAMES A. MARTIN, Administrator of the Estate )
Of MADELINE MARTIN, Deceased, and )
Widower in his own right, ) Cause No. 49S02-0202-CV-117
) in the Supreme Court
Appellant (Plaintiff Below), )
)
v. )
) Cause No. 49A02-0008-CV-534
ACandS, INC., et al., ) in the Court of Appeals
)
Appellees (Defendants Below). )

____________________________________________________________________________
__

APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kenneth H. Johnson, Judge
Cause No. 49D02-9501-MI-0001-295

May 17, 2002

SHEPARD, Chief Justice.

Madeline Martin allegedly died of lung cancer caused by asbestos
fibers brought home on the clothing of her husband James, a laborer and
bricklayer. The trial court dismissed the ensuing suit, holding that Mrs.
Martin’s personal representative could not bring a wrongful death action
because Mrs. Martin did not qualify as a “user or consumer” eligible to
pursue a claim under Indiana’s Product Liability Act. The Court of Appeals
affirmed. Martin v. ACandS, Inc., No. 49A02-0008-CV-534, slip op. (Ind.
Ct. App. Aug. 22, 2001).

We granted transfer, and now reverse, holding that Mrs. Martin had
standing as a bystander under the Act. [1]

Analysis

The Act governs actions by users or consumers against manufacturers
or sellers for physical harm caused by products. Ind. Code Ann. § 34-20-1-
1 (West 1999). For purposes of the Act, “consumer” includes “any bystander
injured by the product who would reasonably be expected to be in the
vicinity of the product during its reasonably expected use.” Id. at § 34-6-
2-29. Who qualifies under this statutory definition is a legal question,
to be decided by the court. Estate of Shebel v. Yaskawa Elec. Am., Inc.,
713 N.E.2d 275, 279 (Ind. 1999).

We hold today in Stegemoller v. ACandS, Inc., No. 49S02-0111-CV-593,
slip op. (Ind. May 17, 2002), that a plaintiff who allegedly contracted a
disease as a result of contact with asbestos fibers brought home on the
person and clothing of her husband has standing as a bystander under the
Act. Our reasoning in that case applies here, and we reach the same
result: taking into account the nature of asbestos products, Mrs. Martin
had a cognizable claim as a bystander under the Act.

Mr. Martin claims that he has an independent cause of action under
the Act, as a product user who suffered physical harm in the form of lost
services. (Appellant’s Br. at 6.) Because we find that Mrs. Martin had
standing under the Act, we need not address this argument. In wrongful
death actions based on product liability,[2] damages may be awarded for the
surviving spouse’s loss of services, love, and affection. Durham v. U-Haul
Int’l, 745 N.E.2d 755, 765 (Ind. 2001) (loss of consortium “is a proper
element of damages in a wrongful death action for the death of a spouse”
and includes material services as well as love, care, and affection). Mr.
Martin may therefore seek compensation for his loss based upon our holding
that Mrs. Martin qualified as a bystander.

Conclusion

We reverse the dismissal of this action and direct that it be
reinstated.

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
APPENDIX A: ATTORNEYS FOR APPELLEES

For Flintkote Co.; J.M. Foster, Inc.; Bondex Int’l., Inc.
DOUGLAS B. KING
JAMES M. BOYERS
Wooden & McLaughlin LLP
Indianapolis, Indiana

For AlliedSignal, Inc.; Dana Corp.; Flexitallic, Inc.; Foseco, Inc.;
General Motors Corp.; Quigley Co., Inc.; Union Carbide Corp.
MICHAEL BERGIN
DANIEL M. LONG
Locke Reynolds LLP
Indianapolis, Indiana

For Kaiser Aluminum & Chemical Corp.
CHRISTOPHER D. LEE
LEE F. BAKER
Kahn, Dees, Donovan & Kahn, LLP
Evansville, Indiana

For Riley Stoker Corp.; Congoleum Corp.
REGINALD B. BISHOP
Roberts & Bishop
Indianapolis, Indiana

For Georgia-Pacific Corp.
ANDREW J. DETHERAGE
JONATHON D. MATTINGLY
Barnes & Thornburg
Indianapolis, Indiana

For ACandS, Inc; North American Refractories Co.; A.P. Green Services
LISA M. DILLMAN

For A.P. Green Industries, Inc.; New Harbison-Walker Refractories Co.;
Pittsburgh Metals Purifying; Plibrico Co.
JASON L. KENNEDY
Segal McCambridge Singer & Mahoney, LTD
Chicago, Illinois

For Chicago Fire Brick Co.
BRUCE L. KAMPLAIN
Norris, Choplin & Schroeder, LLP
Indianapolis, Indiana

For Beazer East; Universal Refractories
GUS SACOPULOS
Sacopulos Johnson & Sacopulos
Terre Haute, Indiana

For Hoosier Gasket Corp.
BETTE J. DODD
Lewis & Kappes, P.C.
Indianapolis, Indiana

-----------------------
[1] Defendants Kaiser Aluminum and Chemical Corp. and North American
Refractories Co. have filed for bankruptcy, and this decision is thus
subject to applicable rules of bankruptcy law as to them.
[2] See, e.g., FMC Corp. v. Brown, 551 N.E.2d 444 (Ind. 1990).