Stegemoller v. ACandS, Inc.

ATTORNEYS FOR APPELLANTS LEAD ATTORNEYS FOR APPELLEES
Linda George

W. RUSSELL SIPES MICHAEL A. BERGIN

Laudig George Rutherford & Sipes JULIA BLACKWELL GELINAS

Indianapolis, Indiana DANIEL M. LONG

Locke Reynolds LLP
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

RAMONA and LEE STEGEMOLLER, )
)
Appellants (Plaintiffs Below), ) Cause No. 49S02-0111-CV-593
) in the Supreme Court
v. )
)
ACandS, INC., et al., ) Cause No. 49A02-0006-CV-390
) 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-001-107

May 17, 2002

SHEPARD, Chief Justice.

Ramona Stegemoller allegedly contracted a disease as a result of
contact with asbestos fibers brought home on the person and clothing of her
husband Lee, a union insulator. The trial court dismissed the
Stegemollers’ suit on the basis that Ramona lacked standing under Indiana’s
Product Liability Act. The Court of Appeals affirmed. Stegemoller v.
ACandS, Inc., 749 N.E.2d 1216, 1220 (Ind. Ct. App. 2001).

We granted transfer, 761 N.E.2d 423 (Ind. 2001), and now hold that
she has 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. § 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).

In Dague v. Piper Aircraft Corp., 275 Ind. 520, 528, 418 N.E.2d 207,
212 (1981), we determined that it was “clear the legislature intended that
the [A]ct govern all product liability actions, whether the theory of
liability is negligence or strict liability in tort.” This conclusion has
particular support in asbestos-related actions. Within the Act is Ind.
Code Ann. § 34-20-3-2 (West 1999), which specifically addresses the time
frames for bringing such claims, including those based on disease resulting
from asbestos exposure.

The manufacturers and other defendants would have us hold that Mrs.
Stegemoller lacks standing under the Act and cannot otherwise maintain a
negligence claim because the Act “provides the sole and exclusive remedy
for personal injuries allegedly caused by a product.” (Appellees’ Joint
Br. at 2-3.) They say the claim falls outside the Act because Mrs.
Stegemoller was not in the vicinity of the product. They reason that the
product at issue is insulation material that contains asbestos, not residue
such as fibers from that material, and that Mrs. Stegemoller was not in the
vicinity of the industrial jobsite where the insulation material was used.

This is too narrow a view. The normal, expected use of asbestos
products entails contact with its migrating and potentially harmful
residue. We conclude that divorcing the underlying product from fibers or
other residue it may discharge is not consistent with the Act.

The manufacturers further argue that Mrs. Stegemoller was not in the
product’s vicinity during its “reasonably expected use.” (Appellees’ Joint
Br. at 5-6.) Again, their reading is too restrictive. In Butler v. City
of Peru, 733 N.E.2d 912, 914, 919 (Ind. 2000), we held that a maintenance
worker who was electrocuted while trying to restore power to an electrical
outlet was a user or consumer as defined in the Act. Implicit in that
holding was the assumption that maintenance may be part of a product’s
reasonably expected use.

The same is true of customary clean-up activities. Here, the
reasonably expected use of asbestos products encompasses the cleansing of
asbestos residue from one’s person and clothing at the end of the workday.

We therefore hold, taking into account the nature of asbestos
products, that Mrs. Stegemoller has a cognizable claim as a bystander under
the Act.[2]

Conclusion

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

Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
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[1] Defendant Owens Corning has filed for bankruptcy, and this decision is
thus subject to the applicable rules of bankruptcy law as to it.
[2] Although our analysis necessarily focuses on the language of our state
statute, we note that the concept of a “domestic bystander” has been
recognized by other courts. See Dube v. Pittsburgh Corning, 870 F.2d 790
(1st Cir. 1989) (quoting trial court’s reference to a “domestic bystander”
who allegedly died of disease caused by asbestos dust carried home from a
shipyard by her father, a naval employee); Fuller-Austin Insulation Co. v.
Bilder, 960 S.W.2d 914 (Tex. Ct. App. 1998), abated, Oct. 15, 1998,
judgment set aside, Sep. 16, 1998 (describing woman exposed to dust carried
home by her stepfather, an insulation installer, as “a bystander exposed to
asbestos”).
The Stegemollers argue in the alternative that if Mrs. Stegemoller
lacks standing under the Act, she may bring a common law tort action.
Because we conclude that she has a cognizable claim under the Act, we do
not address this alternative.