Sharon Gill, on her own behalf and on behalf of the Estate of Gale Gill v. Evansville Sheet Metal Works, Inc.
2012 Ind. LEXIS 473
| Ind. | 2012Background
- Gale Gill, husband of the appellant, worked for Alcoa in Newburgh, Indiana, from at least 1963–1986 as a pot room worker exposing him to asbestos.
- Gill died of lung cancer in 2005, allegedly from asbestos exposure at the Alcoa site.
- Gill filed a wrongful-death action in 2007 naming Evansville Sheet Metal Works (ESMW) among others, asserting products liability and contractor-negligence theories.
- The case was stayed in the Marion County Mass Tort Asbestos Litigation docket; ESMW moved for initial summary judgment under local rules against Gill’s contractor-negligence claim.
- Trial court granted summary judgment for ESMW on the product-liability claim and denied it on the contractor-negligence claim, citing the construction of an “improvement to real property.”
- Gill appealed, and the Court of Appeals affirmed, but the supreme court granted transfer to resolve the improvement issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does ESMW’s work qualify as an improvement to real property under the Construction Solvency of Repose (CSoR)? | Gill contends there is no prima facie showing that ESMW’s work constituted an improvement. | ESMW argues the alleged application/removal of asbestos products was an improvement to real property under the CSoR. | Yes, ESMW failed to prove it constituted an improvement to real property; summary judgment reversed and remanded. |
| Is a discovery-insensitive initial summary judgment permissible under local Rule 714 when the improvement issue is fact-sensitive? | Gill asserts discovery is needed to determine whether an improvement occurred. | ESMW asserts Rule 714 allows preliminary judgment when prima facie showing is met. | The Court rejects adopting a blanket barrier to Rule 714; discovery may be needed, but the movant must show a prima facie entitlement to judgment. |
Key Cases Cited
- Krull v. Thermogas Co., 522 N.W.2d 607 (Iowa 1994) (limits of fixture-based analysis for improvements; promotes commonsense approach)
- State Farm Mut. Auto. Ins. Co. v. Grace-Conn., 605 N.E.2d 555 (Ill. 1992) (appearance of broad definitions of improvement; warns against expansive scope of ‘improvement’)
- Citizens Bank of Greenfield v. Mergenthaler Linotype Co., 216 Ind. 573, 25 N.E.2d 444 (Indiana 1940) (fixture/real property concepts and intent tests used in property attachments)
- Sonnier v. Chisholm-Ryder Co., 909 S.W.2d 475 (Tex. 1995) (application of fixture/common-sense approaches to improvements)
- Berns Constr. Co. v. Miller, 491 N.E.2d 565 (Ind. Ct. App. 1986) (early Indiana decision on liability and improvements in development context)