Black v. A.C. & S., Inc.

785 N.E.2d 1084, 2003 Ind. LEXIS 266, 2003 WL 1554397

• Court: Indiana Supreme Court
• Decided: March 25, 2003
• Docket: 45S04-0303-CV-124
• Status: Published

Opinions

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 § 34-20-8-1, 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 lability claims; we will refer to this section as "Section 2." (We note that prior to recodi-fication in 1998, Sections 1 and 2 appeared at Ind.Code § 338-1-1.5-5 and § 38-1-1.5-5, 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, § 28, 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, 785 N.E.2d 1068 (Ind.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, § 28, except in the limited cireumstance 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.

1 . The trial court also granted the summary judgment motions of ACandS, Inc., Rapid-American Re-fractories, 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.