Celotex Corp. v. Copeland

471 So. 2d 533, 10 Fla. L. Weekly 309, 1985 Fla. LEXIS 3419
CourtSupreme Court of Florida
DecidedJune 13, 1985
Docket65124, 65154 and 65394
StatusPublished
Cited by65 cases

This text of 471 So. 2d 533 (Celotex Corp. v. Copeland) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Celotex Corp. v. Copeland, 471 So. 2d 533, 10 Fla. L. Weekly 309, 1985 Fla. LEXIS 3419 (Fla. 1985).

Opinion

471 So.2d 533 (1985)

CELOTEX CORPORATION, et al., Petitioners,
v.
Lee Loyd COPELAND, et al., Respondents.

Nos. 65124, 65154 and 65394.

Supreme Court of Florida.

June 13, 1985.

Thomas C. MacDonald, Jr., Clark Jordan-Holmes, Charles P. Schropp and Raymond T. Elligett, Jr., of Shackleford, Farrior, Stallings & Evans, James W. Kynes, Tampa; Julian Clarkson of Holland & Knight, Tallahassee, for petitioner The Celotex Corp.

James E. Tribble, Diane H. Tutt and James C. Blecke of Blackwell, Walker, Gray, Powers, Flick & Hoehl, Miami, for petitioner Owens-Corning Fiberglas Corp.

Michael K. McLemore of Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for petitioner Eagle-Picher Industries, Inc.

Michael T. McKenna of Knecht & Whelchel, Coral Gables, for petitioner Nicolet, Inc.

C. Bryant Boydstun, Jr., of Lyle & Skipper, St. Petersburg, for petitioner Fibreboard Corp.

Arthur H. Taylor of Spencer, Taylor & Homer, Miami, for petitioner The Flintkote Co.

Jane N. Saginaw of Baron & Associates, Dallas, and Louis S. Robles, Miami, for respondents.

Norwood S. Wilner, of Zisser, Robison Spohrer, Wilner & Harris, Jacksonville, for amicus curiae Keene Corp.

Steven R. Berger and Wolpe & Leibowitz, Miami, for amicus curiae H.K. Porter Co., Inc.

Carl D. Motes and Kimberly A. Ashby of Maguire, Voorhis & Wells, Orlando; and Jon W. Zeder and Douglas M. Halsey of Thomson, Zeder, Bohrer, Werth, Adorno & Razook, Miami, for amicus curiae Florida Defense Lawyers Association.

*534 Robert M. Klein and Caron E. Speas of Stephens, Lynn, Chernay, Klein & Zuckerman, Miami, for amicus curiae Pittsburgh Corning Corp.

James C. Rinaman, Jr., and Tracey I. Arpen, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for amicus curiae Owens-Illinois, Inc.

Richard A. Kupfer of Cone, Wagner, Nugent, Johnson, Hazouri & Roth, West Palm Beach, for amicus curiae The Academy of Florida Trial Lawyers.

OVERTON, Justice.

This asbestos-related injury case is before us on three petitions to review two decisions of the Third District Court of Appeal reported as Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984) (Celotex), and Copeland v. Armstrong Cork Co., 447 So.2d 922 (Fla. 3d DCA 1984) (Armstrong). The district court decisions involve the same basic factual circumstances relating to a suit instituted by Copeland, a former asbestos worker who contracted asbestosis and asbestos-related cancer, and his wife against sixteen manufacturers of asbestos products.

In Celotex the district court, in a split decision, reversed the trial court's grant of Celotex's motion to dismiss for failure to state a cause of action and expressly approved the use of the market share theory of liability in asbestos cases. The district court, in a separate order, certified the following question as being of great public importance:[1]

Whether market share liability as announced in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912 [101 S.Ct. 285, 66 L.Ed.2d 140], should be adopted in Florida.

For the reasons expressed, we answer the certified question in the negative and quash the decision of the district court. We find the record indicates that Copeland has a proper cause of action against identified manufacturers of asbestos products and, therefore, there is no need to adopt the market share theory of liability in this cause.

In Armstrong the trial court granted summary judgments in favor of all petitioners on the ground that the statute of limitations barred the Copelands' action. In reversing, the district court found that, under the particular facts of this case, summary judgment was not proper because there was an issue of fact as to when the asbestos exposure manifested itself in a way that provided evidence of a causal relationship to the asbestos product. The district court also approved the use of the market share theory in accordance with its decision in Celotex. We find conflict with Vecta Contract, Inc. v. Lynch, 444 So.2d 1093 (Fla. 4th DCA), review denied, 453 So.2d 44 (Fla. 1984).[2] We approve that part of the Armstrong decision concerning the statute of limitations but, in accordance with our decision in Celotex, we quash that portion relating to the market share theory of liability.

Facts

The facts of this cause are as follows. Copeland worked from 1942 until 1975 as a boilermaker. During this time he was exposed to various asbestos products while employed in from 50 to 100 different jobs. Copeland became aware of the possible health hazards of asbestos dust in 1958 or 1959, but he did not suffer any physical problems until the late 1960's, and he was not conclusively diagnosed as having asbestosis until 1978.

Copeland and his wife filed suit in 1979, alleging that Copeland had been exposed to and injured by asbestos products manufactured and distributed by sixteen corporate defendants or their predecessors in interest. The sixteen companies originally named as defendants in the action are: Armstrong World Industries, Inc.; The Flintkote Company; GAF Corporation; Owens-Corning Fiberglas Corporation; Owens-Illinois, *535 Inc.; Johns-Manville Sales Corporation; Eagle-Picher Industries, Inc.; Combustion Engineering, Inc.; H.K. Porter Company, Inc.; The Celotex Corporation; Raymark Industries, Inc.; Unarco Industries, Inc.; Pittsburgh Corning Corporation; Nicolet Industries, Inc.; Fibreboard Corporation; and Keene Corporation.

The action was based upon the theories of strict liability, negligence, and breach of warranty. The complaint alleged that the defendants failed to warn Copeland that exposure to asbestos products created a grave health hazard; that this failure to warn was the proximate cause of Copeland's contracting asbestosis and cancer; that, while Copeland could identify some of the products to which he was exposed, he could not identify each exposure that he sustained; that the products to which Copeland was exposed were unidentifiable as to manufacturer due to the fact that they were removed from the original containers when the exposure occurred; and that, because each exposure contributed to Copeland's injury, the doctrine of joint and several liability should be extended to each of the manufacturers through the application of the market share theory of liability that was adopted by the Supreme Court of California in Sindell v. Abbott Laboratories, 26 Cal.3d 588, 607 P.2d 924, 163 Cal. Rptr. 132, cert. denied, 449 U.S. 912, 101 S.Ct. 285, 66 L.Ed.2d 140 (1980), to deal with injuries caused by DES, a drug prescribed to pregnant women to prevent miscarriages.

Celotex filed a motion to dismiss for failure to state a cause of action, asserting that Copeland had failed to set forth sufficient ultimate facts identifying what product was manufactured by Celotex, what defect allegedly existed, and when, where, and how the accident occurred. The trial court granted the motion on the ground that the theories of enterprise liability, market share liability, alternative liability, concert of action, or any other theories of liability addressed in Sindell were not cognizable under Florida law. The market share theory of liability is the subject of the district court's Celotex

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471 So. 2d 533, 10 Fla. L. Weekly 309, 1985 Fla. LEXIS 3419, Counsel Stack Legal Research, https://law.counselstack.com/opinion/celotex-corp-v-copeland-fla-1985.