*1 sentence In death be set aside. slightly probable Beck v. ence more suffices to Alabama, 625, 447 U.S. Experience S.Ct. 65 show its relevance." dictates Supreme prosecution, L.Ed.2d 392 partaking Court held that as it does it was of normal impose decency, unconstitutional human does nor jury plea death sentence after a mal circumstances make verdict of offers to the guilty capital culpable most jury facing of a offense when several are when the charges permitted single episode. was not for a criminal to consider a verdict of plea offer guilty ap of a therefore was lesser included relevant non-capital of propriate here, for consideration holding applies fense. That since it made despite slightly probable more the inference parallel felony-murder charge. In appellant's participation in Beck, the crime was the lesser non-capital included of lesser than that of others. charge Accord jury fense should have Jeffers Ricketts, (D.Ariz.1986). v. been, not, permitted but was to consider was an avenue which the defendant The State contends recogniz- that a rule could have imposition avoided of the death ing plea such offers as relevant for death penalty. bar, In the case at the lesser sentencing purposes should not be declared non-capital included battery offense of with because it will deter such offers to the deadly weapon provided would have a detriment of criminal facing defendants avoiding like avenue for imposition of the capital charges. Such deterrence will not penalty death guilty since a verdict of of be substantial prosecution since the has the battery would acquitted appellant have of opportunity weight to diminish the of such murder under Count II. This would also mitigating circumstances demonstrating precluded finding of an intent to relationship lack of between the offer kill, which was an essential element of the and the defendant's nature and I offense. aggravating lone upon circumstance which would therefore vacate the conviction for prosecution based its claim for the murder and also vacate the sentence of penalty. death respects, death. all other I concur in the result. Appellant also contends that the trial DICKSON, J., part concurs in court refusing committed error in allow jury trial court erroneously consider his refused Exhibit O as a the ten-
mitigating dered lesser instruction, It included copy circumstance. was a of a offense and would vacate the conviction for plea offer murder which was made to him the and death sentence. prosecutor and rejected which he prior to filing of the death count. Our statute provides that mitigating cireumstance is
any one "appropriate which is for consideration." 85-50-2-9(c)(8).
1. C. I take this to
mean any fact or event which tends to favorably
reflect upon the defendant's character or which tends any to diminish in Ahnighita Cleremont L. COVALT and respect participation in the offense Covalt, Plaintiffs-Appellees, M. should legislative be heard. This mandate Eighth as well as the enjoin Amendment CANADA, CAREY INC. Union Car- court to listen and consider all of the rele Corporation, bide persons vant words of speak who to defend Defendants-Appellants. themselves gallows. from the Lockett v. S00-8811-CQ-922. No. 98 Ohio, 438 U.S. 98 S.Ct. (1978). L.Ed.2d 973 kind What of a verbal Supreme Court of Indiana. standard of appropriate ap relevance is Sept. ply stop so as to utterances at such a Sept. As Amended moment? In Magley v. State 618, 641, said that, under circumstances, normal "[t]he fact piece that a of evidence makes an infer *2 Baird, al., Fil- Ass'n, J. et Barbara
Intern. Baird, Dennerline, lenwarth, & India- Groth curiae. for amicus napolis, PIVARNIK, Justice. comes to us on a certification
This cause
from the United
of state law
question
of a
Appeals.
Circuit Court
States Seventh
to answer said
jurisdiction
This Court
Ind.R.App.P.
question pursuant
certified
15(0).
before the Seventh
The cause now
Circuit,
appeal from the District
on
Indiana,
District
the Southern
for
where a worker
presents a circumstance
more than
diagnosed
having asbestosis
(10)
his last
years after
ten
workplace. The cause
in his
asbestos
action,
compensation
but
not a worker's
against
rather,
liability action
supplied
alleged to have
who are
those
employer.
asbestos to
asbestos
Covalt worked with
Cleremont
in Indiana between
at Proko Industries
Carey
Can-
He believes
1963and
Corp.,
Inc.,
subsidiary of Celotex
ada,
Proko
Corp. furnished
and Union Carbide
properly warn-
without
with raw asbestos
dangers.
him of its
ing
Proko or
either
that Covalt had
physicians concluded
and his
lung cancer. He
asbestosis
personal
for
this action
commenced
wife
in
promptly
and loss of consortium
against
District Court
States
the United
Canada,
Carey
Inc. and Union Carbide
Blackwell},
Bergin, Julia M.
Michael A.
sum-
filed motions for
Corp. III, Locke,
Boyd
Koons,
Reynolds,
Karl M.
asserting
Ind.Code
judgment
mary
defendants-ap-
Weisell, Indianapolis, for
&
(10)
33-1-1.5-5,
year statute of
the ten
§
pellants.
Liability
Indiana Products
repose in the
Williams, Mann, Chaney,
L.
Stephen
part, as
Act,
pertinent
in
provides,
which
Williams, Terre
Johnson, Goodwin &
follows:
Eble, Ness, Motley,
Haute, Timothy E.
in
liability action which
any product
Barnwell,
Poole,
Loadholt,
&
Richardson
negligence or strict
liability is
theory of
S.C.,
plaintiffs-appellees.
commenced with
in
must be
liability
tort
Corp., Peter
of action
Lawyers Ass'n
(2)
the cause
Trial
in
Indiana
(10)
years after
acerues or within
Shumacker,
Young, Thomas
Thomas J.
D.
the initial user
product delivery Associates,
Local
Indianapolis,
Young
J.
&
consumer;
....1
Metal Workers
of the Sheet
No. 20
Union
excep-
provides
expressly
now
§
in
33-1-1.5-5
of the outcome
not determinative
1. While
repose periods for
case,
to its limitations
Indiana
tion
noted that
it should be
exception is de-
actions.
asbestos-related
Legislature
§
Ind.Code
33-1-1.5-5
has amended
(effective
§
Ind.Code
33-1-1.5-5.5
question presented herein
lineated
the certified
while
part
1, 1989),
provides
pertinent
July
Ind.Code
pending
this Court.
before
was
Act,
Judge McKinney
De
Occupational
District
overruled
radiation
Diseases
22-8-7-9(f)(2).
fendants' motions
of this
because
Court's
We noted in
decision in
although
Barnes v. A.H. Robins Co.
Barnes
did
(1985), Ind.,
Applying
that caused the disease. foreign substance was introduced into the plaintiff's body long any injury before or We now answer this certified in manifest, resultant disease became Al plaintiff find that a the affirmative and though it is true plaintiff's that the cause may bring years suit within two after dis- purposes of action did not acerue for covering cause, a disease and its notwith- (2) year standing statute of limitations set forth discovery that the was more made in Ind.Code 38-1-1.5-5 until such time years exposure than ten after the last plaintiff or knew should have dis- that caused the disease. This covered that he injury suffered an or im- holding is consistent with our in Bornes pingement, injury the fact remains that the cases, one, and is limited to such as this inflicted, injury plaintiff inflicted, where an to a was is caused and continued to be during protracted exposure time of may disease which have been contracted as inherently dangerous foreign an substance. protracted exposure foreign a result of to a substance. Judge McKinney, Like this Court is not unmindful
Initially, of the fact that in should be noted that Barnes Barnes, plaintiffs discovered their diseases this Court referred to other stat- within years guidance determining legislative utes for of the initial introduction of the Specifically, Leg- intent. shield we noted that the Dalkon intrauterine device into their bodies, recognized case, discovery present islature the need for a whereas in the type remedy discovery place the case of did not take until more brought jured person that an asbestos-related action must be knows that he has an asbestos-re- (2) injury.
within two
of the date
in-
when the
lated disease or
limitation as to
ordinary statute
last
years after Covalt's
than ten
expiration
occurring
before
Nonetheless,
events
disease is
to asbestos.
exposure to a for-
protracted
the result
period.
prescribed
time
substance,
injury
only
then the
eign
(emphasis added).
Berns,
seemingly causes could be made ing, arguendo, that asbestos are not dis- and latent subtle procedure yet process or safer some *4 plaintiff until mani- coverable to the unknown, or must process procedure many years later. fest themselves An necessarily begin with raw asbestos. Accordingly, 86. 476 N.E.2d at dangerous like the inherently substance injury and latent dis- the seeds of where raw, chrysotile, asbestos that Clere- fibrous into the as ease are introduced exposed to this case is mont Covalt was foreign protracted exposure to a result of it is first intro just as hazardous when substance, of action can- plaintiff's cause (10) as it is ten or into the market duced year not be the barred (50) Accordingly, fifty years later. plaintiff the knew repose, no matter when prolonged injured can since one dis- the resultant or should have discovered manufac newly milled and exposure to ease. as just readily as asbestos asbestos tured In (1987), Berns Constr. Co. v. Miller (10) on the market for ten has been which Ind., 516 N.E.2d 'g Ind.App., aff more, purpose no is served years or this Court summarily af the two. Knox v. legally distinguishing firmed a decision handed Cf. down the First (S.D.Ind.1988), F.Supp. S, Inc. AC & District Court of Appeals in a case involving . 752. statutes of limitation per in a injury arising sonal action injuries out of not matter whether Consequently, it does sustained on a construction site. At issue protracted the result of injury was Covalt's in Berns was whether Ind.Code 34-1- § asbestos exposure newly manufactured 2-2(1), year a two statute of limitation for into the was introduced or asbestos which injuries person, personal character or (10) ago. years We more than ten market property, supplanted was by Ind.Code § repose inapplicable to find our statute 34-4-20-2, requires which actions to recov exposure to an involving protracted damages against er contractors and archi dangerous foreign substance inherently tects to be filed years within ten from the body. the into which is visited date of completion substantial of the im (2) course, year statute of the two Of provement property. discussing to real In contained limitations procedural both the substantive quali the cause of applies still 88-1-1.5-5 ties of repose, Ap statutes of Cleremont to accrue when action is deemed peals following: noted the have discovered knew or should Covalt acquires its sub- repose] The statute [of filed the Covalts disease. Since injury or barring a quality by potentially stantive of dis- years complaint within their oc- injury right of action before case, no issue there is in the instant covery subsequent injury occurs curred year limitations to the two regard period. On the prescribed time to the period. hand, operates as other urge
Defendants
there
injury,
are stark
apparent
to the extent
parallels
present
case and Do-
between
can
be ascertained until
after
gue
Piper
Corp.
year
the two
statute has run.
Aircraft
In Dague,
this Barnes,
(emphasis added).
4716N.E.2d at
Court held that section five of the 1978
today.
The same rationale holds true
Liability
Kathy
Product
Act barred
Da-
Judge
out,
McKinney correctly points
As
gue's wrongful death cause of action
we are not concerned here with the intro
where
husband died as a result of
her
marketplace.
duction of a
into
airplane
he sustained in an
crash
Here
we are concerned with
to a
years
which occurred more than ten
after
foreign
hazardous
substance which causes
placed
the aircraft was first
in the stream
disease. Covalt v.
Carey-Canada,
Dague,
of commerce.
275 Ind. at
(S.D.Ind.1987),
In
argue
N.E.2d at
211. Defendants
present case,
Carey Cana
Dague,
case,
that in
present
da,
Inc. and Union Carbide
are al
cause of action accrued more than ten
leged to have furnished Proko with raw
years
allegedly
defective
asbestos,
naturally occurring
substance
was delivered to the initial user or consum-
which was mined
both Defendants here
addition,
er.
Defendants maintain in
Dague
in. Whereas
dealt with
fail
alleged
both cases
damages
defect and
ure,
present
protracted
case involves
were not "discovered" until more than ten
foreign
to a
substance
re
placed
after the
was first
slow, progressive,
sults in
undetectable
in
argu-
stream of commerce. These
jury and latent
say
disease. We cannot
unpersuasive
ments are
for a number of
intended
year
the ten
First,
reasons.
Dague involved a one-time
*5
repose
statute of
to bar claims such as this
occurrence which resulted in
in-
immediate
one, where the injury
pro
is the result of
jury and death less than two months there-
exposure
tracted
foreign
a hazardous
Dague,
after.
275 Ind. at
substance.
Second,
at 209.
the Dague airplane crash
year
occurred outside of the ten
Finally, even a federal court that recent
repose,
alleged
whereas Cleremont Covalt's
ly suggested a
reading
narrower
of Barnes
injury and resultant disease is the result of
today aptly
than we take
pointed out the
protracted
asbestos,
exposure to
an inher- primary purpose of
repose,
statutes of
that
ently dangerous product
just
that was
recognizing
of
improvements
prod
dangerous when first
introduced into the
design
uct
and safety
time,
that come with
market as it was when it was visited into in
involving
served
cases
asbestos
body
very
for the
first time.
S,
and its related diseases. Knox v. AC &
Barnes,
(S.D.Ind.1988),
recognized
this Court
F.Supp.
that
Dague
readily
distinguishable
(citing England
Ltd.,
from cases
Asbestos
No.
involving inherently dangerous
foreign
(Feb. 13,
IP
1987)).
81-163-C
Asbestos and
naturally occurring
substances
body.
substances like it are
are visited into
subject
design
not
safety improve
following
and
We stated the
discussing
in
rule: ments. The Knox court even went so far
adopting
rationale
discovery
behind
say
that asbestos
Large
will not and most
numbers of new chemicals and
being
probably
are
introduced
improve
time,
into our
cannot
will
always
dangerous
economy
workplace
product,
and
be
and conse
have result-
quently,
growing
appear
any way
ed in a
does not
number of
to fall
diseases and
that oftentimes do not
manifest
Knox,
within the rationale
of the rule.
hand,
until
long
exposure
themselves
after
at 760. On the other
Defen
ends.
In some
damage
regardless
dants maintain that
does not
of whether
negligent
safer,
follow the
act of
asbestos can be
introducing
working
made
or drug
into the
for a
conditions of raw asbestos handlers have
period
years.
In other
improved
example,
cases the dam-
over
employ
time. For
age,
progressive
in the form of
supply
respira
disease
their
ers now
workers with
responsibility to determine
duty and
inhaling
sole
likelihood
their
to decrease
tors
time
a reasonable
constitutes
this,
ar what
From
dust.
asbestos
action,
period
al
is,
unless
bringing an
repose statute
policy behind
gue the
it
manifestly insufficient that
is so
disease
lowed
fact,
in asbestos-related
served
Accordingly,
justice.
represents denial
cases.
latency period with
because
repose stat-
policy behind
Whether the
diseases,
plaintiffs'
most
asbestos-related
dis-
occupational
in worker's
ute is served
they
even before
claims would be barred
is not at issue
compensation actions
ease
known of
reasonably could have
knew
is true
this cause. While
be
would
injury or disease
their
Diseases
Occupational
Indiana Worker's
year
if the ten
day in court
denied their
provides
specifically
Act
Compensation
require
To
applied.
were
against
employer
of actions
limitations
limited
bring his action in a
a claimant
diseases
involving occupational
for cases
he
which,
diligence,
with due
periodin
dust,
inhalation of asbestos
by the
caused
of action
that a cause
aware
could
compen-
not a worker's
present case is
sys
our
inconsistent with
exists would be
fact,
did, in
sation action.
jurisprudence.
tem
of action
statutory limitations
specific
set
at 86.
disease
occupational asbestos-related
holding today is limited
Accordingly, our
compensation
cases,
no
provided that
pattern presented
precise factual
to the
Com-
under the Worker's
payable
shall be
occupational
apply to worker's
does not
Act unless:
pensation
opinion
compensation
disease
last
years after
occurs three
disablement
actions.
liability
accordingly limited to
if
of the disease
to the hazards
liability is
theory of
actions which
July
exposure was before
last
liability in tort.
negligence or strict
22-38-7-9(£)(8)];
1985, [IC
Code 88-1-1.5-5.
twenty years after
occurs
disablement
of the. dis-
on
course,
to the hazards
no determination
last
make
Of
exposure was on or
of action
last
causes
ease
merits of the Covalts'
1, 1988,
Canada, Inc. and Union Car-
July
against Carey
and before
July
[IC
22-3-7-9(f)(4) ]; and
the Sev-
are now before
Corp. which
bide
The Co-
Appeals.
Court of
enth Circuit
thirty-five years after
occurs
disablement
*6
by
not barred
of action are
causes
the dis- valts'
the hazards of
exposure to
last
repose set forth
year
the ten
statute
exposure was on or
last
ease
88-1-1.5-5.
22-3-7-9()(5)
Ind.Code
§
July
].
[IC
answered,
this
may very
well be
It
The certified
in the work-
States
improvements
to the United
contemplated
is remanded
cause
han-
employees
one's
Circuit
time when
for the Seventh
place
Appeals
over
Court
apparent
it is
proceedings.
But
dle raw asbestos.
further
above
enumerated
the statutes
JJ.,
GIVAN,
concur.
and
long laten-
recognized the
DeBRULER
Legislature also
manifesta-
period
and
cy
between
J.,
DICKSON,
C.J.,
SHEPARD,
and
asbestog-related diseases.
tion
opinions.
separate
dissent
Legis
held that when
Justice, dissenting.
SHEPARD, Chief
as to a
clear
its intentions
has made
lature
prologue, members
indeed
past
If the
limitations,
period of
statutory
the next few
spend
majority will
today's
applied
intentions
guided by those
been
de-
of other
why victims
explaining
years
Barnes, 476
in our determinations.
them
damages even
seek
fective
cannot
v. National
(citing Bunker
at 86
can.
of asbestos
though victims
8,
Ind.,
(1982),
441 N.E.2d
Gypsum Co.
difficult.
may prove
explanations
The
(1983),
460 U.S.
appeal dismissed
the bound-
defines
neither
Today's opinion
338;
Dague,
76 LEd.2d
S.Ct.
pro-
nor
creates
exception it
aries of
Moreover,
Legislature has the
supra).
vides
fig
so much as a
leafjustifying such
is led to wonder
Dague
how
would have
judicial creativity.
turned
plaintiff
out had the
been able to
plead a slow
badly
deterioration of
manu-
By way
providing definitions,
the ma
metal,
factured
deterioration leading ulti-
jority tells
only
us
that asbestosis victims
crash,.
mately to failure and
Would John
being
are
allowed to seek recovery because
Dague's widow have been barred had she
they
they
injured
claim
by
were
argue
been able to
that her husband was
that enters the
takes a
time
"slow,
victim of a
progressive, unde-
to
making
cause harm
it virtually impos
injury"?
tectable
Apparently, she would
predict
sible to
which future
liabili
have been told simply that defective asbes-
ty
claimants will
luck of the draw find
exception
tos is an
to Indiana's
statute of
happy
themselves the
judicial
holders of a
repose and defective metal is not.
exception to Indiana's statute
repose.2
majority
The
creates
exception by
doWe
know that
the unlucky future
rewriting a statute which is a model of
claimants will
people
include
like those in-
legislative clarity: "[AJny product liability
jured in airplane crashes who claim defec-
action in which the theory of liability is
tive
design
manufacture or
of an aircraft
negligence or strict liability in tort must be
that crashes
years
thirteen
after delivery.
(2)
commenced within two
years after the
The victims in such cases clearly could not
cause of action accrues or
(10)
within ten
know
would have a cause of action years after
the delivery
to
until after
had run.
the initial user or consumer...."
Their
appeared
advocates
in this Court
83-1-1.5-5.
The majority
claims to find
eight years ago
argue
strongly against
support
some
for this rewriting in the
injustice
of a statute which bars a claim Court's determination that the word "ac-
forever even before it accrues. Dague v.
erued" in the same statute should be con
Piper
275 Ind.
Aircraft
strued as a discovery provision. Barnes v.
(Brief
389 no other demand cireumstances unless utes us, accepting to question this certifying from not shrink I would While response. general abro to lead grounds would those issues constitutional Indiana addressing v. repose. Covalt of statutes of gation litigate these 1434, 1440 to choose parties Inc., F.2d should Canada, Carey on addressing them courts, in Indiana's principled ais Cir.1988).3 If there (7th little a injured me as Chicago of strikes class out one singling from for renvoi basis shutting asbestosis, and of strange. parties, victims victims, I defective all other out nullify statutes to Judges determined opinion. majority the it in to discern fail ascribe to constrained customarily feel declining understand could Certainly, one legal princi- to neutral determination their constitutional on a statute enforce to to- apparent is not constraint Such ples. generate repose of statutes and grounds, day. for challenges. As constitutional frequent course, Sev constitution, the of federal the dissenting. Justice, DICKSON, claims rejected already Circuit enth the violates of application 83-1-1.5-5 avoids majority that The and process declaring due an amendment's repose fourteenth ten-year statute v. Unar Pitts provisions. "pro- protection resulting from equal for exception (7th Cir. danger- Inc., F.2d 276 inherently Industries, to ro tracted claims, constitutional state 1983). As for into is visited foreign substance ous out that points correctly Dickson Justice Ind. revision judicial body." Such challenges susceptible is still statute unacceptable. is 83-1-1.5-5 Code § of the 12 and 1, sections Article under construe liberty to not at are Courts that and Constitution proposes Indiana Community unambiguous. statute constitutionality of to review undertake County Madison and Hosp. Anderson Al sections. these under statute 775; Ind., N.E.2d (1986), McKnight v. alacrity respond with customarily though I Dock v. Yankeetown Evans a determination such proposals,4 to such Bolerjack 969; Burks Ind., 491 N.E.2d raising resolv and require would case this plain The 887. Ind., N.E.2d response to ing constitutional ten-year liability language of statutory construction. simple question free is clear statute 28's cited section have not parties The duty to ac our is therefore It ambiguity. clause, al immunities privileges un as written apply cept and open mention do plaintiffs though legislature power it exceeds less stat of section provisions courts act. squarely be constitutionality ute's is un litigation. construction statutory us in fore Even when may tribunal appellate dertaken, an I put, would squarely if it were Even leg that of judgment its substitute declara a constitutional make reluctant Hosp., Vincent v. St. Johnson islature. question, certified answering a tion 585. 374, 404 N.E.2d Ind. (1980), 273 supreme some recognize though I desirability of a statute Seq, The wisdom doing so. difficulty to little see courts evaluation. judicial matter proper not a W.2d States, 757 S. v. United e.g., Lucas 398, 398 (1980), 272 v. State Walton foreswear ought (Tex.1988). Courts of stat constitutionality declaring on Law, in Tort Temporal Dimension Epstein, the ma- justification in glimmer is a There Markin, (1986); A Statute purpose" of 53 U.Chi.L.Rev. "primary jority's assertion *8 Claims, Ford- Liability 50 improve- "recognizing Repose Product repose is of statutes for of safety." (1982). design and 745 L.Rev. ham ments legisla- complex throwaway line the as a treats striking balance economic task the Indiana tive for Wind Shepard, "Second See defec- consumers protects individual both (1989). 575 Ind.L.Rev. Rights," 22 Bill of encouragement for provides products and tive eg., products. new introduction See 390 reasons, For these I am compelled to fall until a reasonable time filing that, conclude absent constitutional infirmi- expired." ty, ten-year repose must be I would therefore favor that this Court applied liability actions com- engage in an analysis of the liabili- menced more than ten years after delivery ty statute repose, by way of statu- of the to the initial user or consum- tory construction as undertaken the ma- er. jority, but rather by constitutional analysis While I agree cannot with the majority's so that we may questions review of its reasoning, I would favor that this Court constitutionality 1, under Art. 12 and 23 §§ undertake a review the constitutional of the Indiana, Constitution of and so that questions, particularly respect to Art. may reconsider and appar- resolve the 1, 12 23 §§ Constitution of ent inconsistencies between Dague and oth-
Indiana. er analagous recent cases. Section 12. All courts shall open; every person, injury done to him person, property, or reputation, shall remedy by due course of
law....
Section 28. The General Assembly grant shall not any citizen, or class of citizens, privileges or which, immunities upon terms, same shall Delphine not equally PORTER, Appellant, belong to all citizens. v. Our recent suggest decisions these Indiana, STATE of Appellee. issues remain unresolved. In Dague v. No.45S00-8809-CR-844. Piper Corp. (1981), 520, 275 Ind. Aircraft 207, N.E.2d we held Supreme Court of Indiana. liability statute did not contra 11, Sept. vene Section 12. (Dague did not involve a Section 28 challenge.) However, language
in contemporaneous subsequent analo gous presents decisions significant qualifi
cation or equivocation on the constitutional
issues. In Bunker v. Gypsum National (1982), Ind., Co. 8, 12, N.E.2d we stated
that a "statute of limitations will comport
with the constitutional demand pro for due cess so provides a reasonable
time for the bringing of an action." Sim ilarly, Texaco, Short v. Ind. 625, 630, aff'd (1982), 454 U.S. S.Ct.
L.Ed.2d this Court declared Indiana to
be in accord with the rule that statutes of
limitation are not unconstitutional if rea sonable given time is for the commence
ment of an action before the bar takes Likewise,
effect. in Rohrabaugh Wag oner 891, 893, application of the two-year medi
cal malpractice statute of limitations to cer
tain minors was upheld against a constitu
tional challenge because bar does not "[t]he