Stegemoller v. ACandS, Inc.

749 N.E.2d 1216, 2001 Ind. App. LEXIS 887, 2001 WL 569743
CourtIndiana Court of Appeals
DecidedMay 29, 2001
Docket49A02-0006-CV-390
StatusPublished
Cited by4 cases

This text of 749 N.E.2d 1216 (Stegemoller v. ACandS, Inc.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stegemoller v. ACandS, Inc., 749 N.E.2d 1216, 2001 Ind. App. LEXIS 887, 2001 WL 569743 (Ind. Ct. App. 2001).

Opinion

OPINION

BAKER, Judge.

Appellants-plaintiffs Ramona and Lee Stegemoller (collectively, the Stegemol-lers), appeal the dismissal of their complaint against the appellees-defendants, AcandS, Inc, et al, (collectively, the appel-lees). Specifically, the Stegemollers contend that the trial court erred in granting the motion to dismiss because their cause of action was properly brought under the Indiana Product Liability Act 1 (IPLA). Alternatively, the Stegemollers contend that they are entitled to pursue a separate common law negligence claim against the appellees if their cause of action does not fall within the purview of the IPLA.

FACTS

Lee was employed as a union insulator beginning in 1947, and has worked for a number of different companies. During *1218 the course of his career, Lee worked with asbestos and some of the dust remained on his clothing after leaving the jobsite. Lee primarily used the asbestos insulation in industrial settings. The insulation materials were used on industrial boilers, engines, furnaces and turbines. Record at 29. As a result of her contact with the asbestos materials, Lee’s wife, Ramona, was diagnosed with colon cancer, pulmonary fibrosis and pleural thickening in April, 1998.

On March 5,1999, the Stegemollers filed a complaint against the thirty-four appel-lees, alleging that Ramona had ingested or inhaled the asbestos fibers that caused her diseases. The complaint alleged that Ramona had been exposed to asbestos dust on a daily basis from approximately 1947 until 1988, as the result of interacting with Lee and laundering his work uniforms. The Stegemollers contended that the asbestos material originated from products attributable to the appellees, or from the premises of other defendants. The Steg-emollers cause of action also alleged that the appellees participated in a conspiracy to conceal the known hazards of asbestos from the public.

On May 12, 1999, several of the appel-lees filed a motion to dismiss the Stegem-ollers complaint. The motion asserted that Ramona was not a “user or consumer” as defined by the IPLA. Thus, they contended that Ramona had no cause of action for her asbestos-related diseases. The trial court ultimately granted the appellees’ motion to dismiss, reasoning that the Steg-emollers’ claims did not fall within the purview of the IPLA, and further determined that there could be no common law negligence claim because the IPLA exclusively governs the actions brought by the user of a product against a seller or manufacturer. The Stegemollers now appeal .the trial court’s grant of the motion to dismiss.

DISCUSSION AND DECISION

I. Action Under the IPLA

The Stegemollers first contend that the trial court erred in dismissing their cause of action under the IPLA. Specifically, they claim that their cause of action fell within the purview of that statute because Ramona qualified as a “user” or “consumer” of the asbestos product, and she fit the definition of a “bystander” as defined in the IPLA.

To resolve this issue, we first turn to the relevant provisions of Ind. Code § 34-6-2-29, the consumer definition of the IPLA: “Consumer” ... means:

(1) a purchaser;
(2) any individual who uses or consumes the product;
(3) any other person who, while acting for or on behalf of the injured party, was in possession and control of the product in question; or
(4) any bystander injured by the product who would reasonably be expected to be in the vicinity of the product during its reasonably expected use.

When interpreting the above provisions, we note that the determination as to whether Ramona qualifies as a “consumer” under the IPLA, is purely a legal question. See Estate of Shebel v. Yaskawa Elec. Am., 713 N.E.2d 275, 279 (Ind.1999). Further, when a statute is unambiguous, courts must apply the words of that statute in their plain and ordinary sense. Hughey v. Review Bd., 639 N.E.2d 1044, 1047 (Ind.Ct.App.1994), trans. denied. The courts have no authority to revise or amend the statute according to what the parties argue that the legislature must have intended when a statute is unambiguous. Id.

*1219 Here, Ramona has made no showing that she used, consumed, possessed or controlled any of the asbestos insulation products that Lee worked with in accordance with I.C. § 34 — 6—2—29(1)—(3), quoted above. Thus, the only claim that the Steg-emollers are left with under the ILPA is the contention that Ramona may be compensated for her injuries as a “bystander” in accordance with I.C. § 34-6-2-29(4).

The Stegemollers made no allegation that Ramona was ever present at any of the sites where Lee came into contact with the defendants’ products. Additionally, she was not in the vicinity when the asbestos products were being used. In fact, the Stegemollers stipulated that Ramona’s exposure did not occur where Lee allegedly used asbestos-containing insulation materials. Stipulation of Fact at 1. Rather, as noted above, Ramona’s only alleged exposure to asbestos material was to the dust that Lee brought home from his workplace.

When considering the statutory provisions set forth above, the plain language of the IPLA requires Ramona to have been a person who would “reasonably be expected to be in the vicinity of the product during its reasonably expected use” in an industrial setting, in order to recover as a bystander. Here, the circumstances involving Ramona’s alleged exposure to the asbestos dust do not satisfy the “during its reasonably expected use” portion of the IPLA. Specifically, the statute contemplates that she must have been present at the places and at the times when Lee used the asbestos products. Inasmuch as the Stegemollers have stipulated that Ramona was not present at those times and places, she does not meet the definition of a “bystander” within the meaning of the IPLA.

We also reject the Stegemollers’ claim that Ramona may recover because the ap-pellees should have reasonably foreseen that Ramona would be in the vicinity of the asbestos-containing products during then-expected use in an industrial setting. The IPLA is only susceptible to the reading given by the plain and common meaning of the language found within it. Ramona cannot meet the requirement that she was an individual who would have reasonably been expected to be in the vicinity of asbestos-containing insulation material meant for industrial purposes during the reasonably expected use of the product. Simply put, the Stegemollers’ argument, that Ramona may recover because the ap-pellees should have reasonably foreseen that Lee would bring asbestos dust home on his clothing, ignores the plain language of the IPLA.

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Related

Vaughn v. Daniels Co.(West Virginia), Inc.
777 N.E.2d 1110 (Indiana Court of Appeals, 2002)
Camplin v. ACandS, Inc.
768 N.E.2d 428 (Indiana Supreme Court, 2002)
Stegemoller v. ACandS, Inc.
767 N.E.2d 974 (Indiana Supreme Court, 2002)

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Bluebook (online)
749 N.E.2d 1216, 2001 Ind. App. LEXIS 887, 2001 WL 569743, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stegemoller-v-acands-inc-indctapp-2001.