*1 Evelyn NYE CROPSCIENCE, INC., et al.
BAYER Tennessee,
Supreme Court
at Knoxville. 2, 2010 Session.
Sept. 7, 2011.
June *3 fault,
at but that her employer husband’s injury sole cause his and award- nothing. appealed. ed her The widow Appeals Court reversed and re- manded for a new trial on based erroneous jury probably instructions that more than judgment jury. not affected the On review, we hold that the seller liability, pursuant suit strict to Ten- nessee Code Annotated section 29-28- *4 106(b) (2000), prod- because none of the Jr., Hugh Bright, King, B. Michael J. ucts’ manufacturers were to ser- Stubblefield, Knoxville, and Latisha J. Further, vice process. we hold that the Tennessee, appellant, for the National Ser- trial court instructing jury erred Industries, Brothers, vice Inc. North f/k/a/ that the seller could not be held liable for Inc. jury failure to warn if the found that the Jr., Jimmy Rodgers, Chattanooga, F. consumer, employer, identified as the was (“Rett”) Tennessee, Guerry, and John E. already aware any danger in connection III, D. Benjamin Cunningham, and Mt. products with the use of the or if the Pleasant, Carolina, appellee, South for the employer given adequate had been warn- Evelyn Nye. ings. jury This instruction was erroneous First, for two reasons. it applied the OPINION doctrine, intermediary learned which the LEE, J., SHARON G. delivered the courts of this state have limited to medical Court, opinion of the in which CORNELIA Second, products and pharmaceuticals. CLARK, C.J., WADE, J., A. and GARY R. the jury instruction misidentified the con- HOLDER, J., joined. M. filed a JANICE employer, sumer as the when the consum- separate opinion, concurring part er who required to be warned was the dissenting part, in which WILLIAM C. employee, Nye. Mr. Because the KOCH, JR, error joined. J. probably more than not judg- affected the case, In products liability this a widow jury, judgment ment of the of the trial sought compensation for the death of her court is reversed and the cause is remand- allegedly husband from mesothelioma ed for a new trial. by exposure caused to asbestos at his workplace. company She sued the Background products containing sold asbestos to her Hugh Nye diagnosed Todd with ma- employer. husband’s She based her claim lignant pleural September mesothelioma alleged on strict sell- of 2005.1 He died from this disease on products er sold defective and failed to products’ August warn her husband of the health 2006. Mr. mesothelioma jury risks. The found that the allegedly by exposure seller was was caused to asbes- relatively Agency 1. Mesothelioma is a rare cancer of International for Research Cancer. on lining the thin membranes the chest and ab Agency for Toxic Substances and Disease frequently among domen. It is observed as Registry, Dep’t U.S. of Health & Human bestos workers. Asbestos has been classified Servs., Toxicological Asbestos Profile for carcinogen by as a known human the U.S. (2001), http://www.atsdr.cdc.gov/ available at Services, Department of Health and Human toxprofilesltp61-p.pdf. Agency, the Environmental Protection and the asbestos-containing products to DuPont for DuPont he worked the time during tos Tennessee, facility by Owens that had been manufactured Chattanooga, at (“Owens operator an on Fiberglas Corporation 1985. As Corning from 1948 to line, polymerization Pittsburgh Corning Corpora- Corning”), DuPont’s continuous employment, of his during the course (“Pittsburgh Corning”), Raybestos- tion arising exposed dust Manhattan, Mr. was often (“Raybestos”), Inc. and Johns (“Johns Manville”). asbestos insulation removal of from the Corporation Manville where he worked. in the areas pipes from Mrs. complaints, amended additional that these manufacturers had Nye alleged Nye and his wife Mr. May insolvent and were judicially been declared defendants, including a number of sued process. to service of not amenable Industries, Inc., a succes- National Service Inc. North in interest sor Brothers filed a Tennessee Rule (“North Brothers”), compensatory seeking summary Procedure 56 motion Civil caused injuries allegedly damages for First, relying on Tennessee judgment. asbestos-containing Nye’s exposure Mr. 29-28-106(b),3 Annotated section Code facility. Nyes at the DuPont that, North Brothers asserted non- *5 sounding negligence, in claims asserted seller, manufacturing it did not have a warranty liability, and breach of strict products the it duty regard to warn with manufacturers, numerous named Second, Nye’s that Mr. sold. asserted sellers, the and distributors of asbestos- DuPont, “sophisticated employer, was a containing products. such, and, purchaser,”4 as knew about the danger asbestos-containing prod- of the February Nye Mrs. amended
In warn, ucts. North Brothers’ failure Nye’s complaint allege Mr. death therefore, proximate was not the cause of August mesothelioma on 2006. from Next, death, North Brothers Nye’s injuries. his Mr. seeking damages for addition Nye’s liability strict that North Brothers2 sold asserted Mrs. she asserted summary judgment, allega- Nye also sued and made similar 4.In its motion for 2. Mrs. Breeding Company, Inc. "sophisticated tions as to Insulation North Brothers used the term compromise Court, An order of settlement user.” In its brief to this North Breeding Com- later entered as to Insulation plead- that in trial court Brothers noted pany, Inc. ings, "sophisticated it used the term user” as intermediary” synonymous or with "learned 3. Tennessee Code Annotated section 29-28- sophisticat- "sophisticated purchaser.” The 106(b)provides follows: the ultimate user ed user doctrine focuses on action,” (b) "product liability as defined No product, or consumer of the whereas 29-28-102(6), when on the doc- based sophisticated pur- intermediary learned or tort, liability in be com- trine of strict shall knowledge- chaser doctrine focuses on against any maintained seller of menced or intermediary intercedes between able who alleged product which to contain or a supplier or manufacturer and the ulti- unreasonably possess a defective condition Products Lia- mate user. See 63A Am.Jur.2d dangerous buyer, user or consumer (2010). clarity, bility § we refer to For unless the seller is also the manufacturer of light sophisticated purchaser doctrine product part or the manufacturer of the defective, that it intended of North Brothers’ statement be or unless thereof claimed to interme- product part to assert that DuPont was a learned the manufacturer of the or question diary sophisticated purchaser not be to service of shall rather than process in the of Tennessee or service sophisticated state sophisticated user user. by long-arm cannot be secured statutes appeal. doctrine is not at issue this or unless such manufacturer of Tennessee judicially declared insolvent. has been trial, a matter of law because At the time claims failed as all the named defen- dants had been except dismissed products the manufacturers and the strict claims for to DuPont North Brothers sold had sale of defective and failure to insolvent, judicially been declared as re- only surviving warn were the claims. The quired by Tennessee Code Annotated sec- jury trial court’s charge included the fol- 29-28-106(b). Finally, North Broth- tion lowing instructions: argued ers that Mrs. claims were A manufacturer or a seller cannot be four-year repose barred statute of held liable you for failure to warn if find under Tennessee Code Annotated section consumer, DuPont, already (2000) and that her breach of 28-3-202 any danger aware of in connection with warranty claim was barred statute asbestos-containing products, the use of of limitations under Tennessee Code Anno- you adequate or if find that warnings (2001). tated section 47-2-725 given by were manufacturers or sellers granted summary The trial court judg- to DuPont. ment to North Brothers on the breach of warranty on claims based the statute of addition, if you find that DuPont granted par- limitations. The trial court provide failed to a safe workplace for summary judgment tial to North Brothers Hugh Todd and that this failure repose based on the statute of him, was the sole cause of damage to occurring sales before June 1969. The you then have found DuPont was the disputed trial court determined there were sole injury, you cause of his may not genuine issues of material fact as to the *6 consider the fault of North Brothers or grounds, summary judg- other and denied any other company supplying asbestos- ment. The trial court did not rule on containing materials to DuPont. liability whether a claim strict could be jury The found North Brothers was at against North pursuant asserted Brothers fault, but that DuPont was the sole cause to Tennessee Code Annotated section 29- Nye’s damages Mrs. and awarded her 28-106(b). nothing. The trial court denied Mrs. Thereafter, re- parties by both motion5 trial, Nye’s motion for new appeal- and she quested the trial court to decide the issue Appeals ed. The Court of held that North subject of whether North Brothers was to strictly Brothers could be held liable as a liability a strict suit based on Tennessee non-manufacturing seller because the man- 29-28-106(b) Annotated section Code as a ufacturers products whose North Brothers of the pending Chapter result 11 bank- sold were not amenable to service of pro- cess ruptcies Corning, Pittsburgh bankruptcy Owens due to their proceedings. Appeals Court of further ruled Corning, Raybestos, and Johns Manville. the trial court committed harmful error in The trial court ruled that the manufactur- jury its instructions to the and reversed ers were not amenable to pro- service of jury’s verdict and remanded for a new meaning cess within the of Tennessee trial. 29-28-106(b), Code Annotated section
therefore, subject North Brothers was to granted We North Brothers’ application non-manufacturing permission suit as a seller. for appeal to and address two suit, Nye 5. North Brothers filed a motion for a reconsid- strict and Mrs. filed mo- summary judgment requesting eration of its motion re- tions in limine the trial court to questing ques- the trial court to address the that these declare manufacturers were not subject process. tion of whether North Brothers was amenable to to service of North Brothers, clean-up work. 1) and from his own North whether issues: asbestos-containing insula- sold Brothers seller, suit is non-manufacturing in the line to Du- products tion used CP to Tennessee liability pursuant in strict products products included Pont. These 29-28-106(b) and Annotated section Code Corning, Pitts- manufactured 2) committed harm- the trial court whether Raybestos, and Johns burgh Corning, jury. to the in its instructions ful error proof that either There is no Manville. Mr. North Brothers warned DuPont or Analysis with health risks associated Nye of the Liability aas Seller Brothers’ North asbestos-containing prod- to the exposure prepare Brothers did not ucts. North of whether North analysis our begin We any other warning for DuPont or written seller, non-manufacturing as a the health risks asso- regarding customers liability pursuant to in strict subject to suit asbestos-containing prod- ciated with section 29-28- Code Annotated Tennessee sold, any kind of did not include ucts 106(b), recitation of the facts with a brief de- accompany products those warning of the basis general discussion ultimate users of scribing dangers such case. liability claims this the strict Nye, like Mr. and did not products working for DuPont at Nye began Mr. warning DuPont was inquire as to whether and, except Chattanooga plant its dangers. products’ employees service, military he period for a brief North Brothers had Both DuPont and continuously he retired there until worked health risks of asbestos been aware of the period, Nye Mr. During this 1985. Expert pre- evidence was since 1960s. polymeri- plant’s on the continuous worked exposure that Mr. sented (“CP line”), line a section of the zation asbestos-containing sold production involved in DuPont’s plant contributing cause Brothers was a duties, Mr. yarn. part job As of his death from mesothelioma. his inspec- conduct routine required Nye’s suit named numerous defen- Mrs. along located the CP equipment tions of sellers, including manufacturers and dant *7 Often, conducting these line. when he was Brothers, negligence, North and asserted crews were inspections, maintenance liability, warranty and breach of strict asbestos- cutting removing areas and same By the against these defendants. claims pipes. insulation from Evidence containing trial, North Brothers was the sole time of anticipated defendant, an presented only that this was the claims remaining and liability, in- based on the sale of In addition to in strict use of the insulation. failure products defective and to allegedly Nye’s job Mr. duties specting equipment, warn, jury. to the presented were pick and sweep him to the floor required after the mainte- up insulation debris left seller, North A commercial such as completed their work. nance crews had Brothers, liability may be liable in strict exposed to visible Nye frequently Mr. by to a consumer physical for harm caused (Sec- from the removal of the asbes- arising product. dust a defective Restatement ond) (1965).6 Further, a § 402A by work crews of Torts tos-containing insulation (Second) property is consumer or to his section 402A user or 6. Restatement Torts subject liability physical harm there- for provides as follows: consumer, by to the ultimate user or caused Liability for Special of Seller of Product property, if or to his Physical Harm to User or Consumer (a) (1) engaged in the seller is the business any product a defec- who sells One product, dangerous selling a and unreasonably such tive condition and, liability may brought action7 be sale” Tennessee product citing Code Annotat 29-28-102(6), a manufacturer or seller on strict ed section that Gener “[t]he liability grounds, proof negli- with no Assembly al acknowledged has also that a injury to product causing if the gence, failure warn claim is a valid basis for a to be in person property or “is determined product liability Nye action.” Mrs. argues unreasonably dan- a defective condition or Nye that the defendants failed to warn Mr. left gerous at the time it the control of asbestos-containing products were Ann. manufacturer or seller.” Tenn.Code health, despite harmful to his the fact that 29-28-105(a) (2000); accord Owens v. each defendant knew that the asbestos- Am., 915 S.W.2d Truckstops containing products dangerous were and (Tenn.1996). Nye alleges Mrs. be inspection would used without for de asbestos-containing products by sold fects. North Brothers were “unsafe for normal that, North Brothers contends as a sell- handling consump- anticipatable or and er, strictly it cannot be liable. held North tion,” to Tennessee Anno- pursuant Code Brothers relies on Tennessee Code Anno- 29-28-102(2), tated section at the time of 29-28-106(b) tated section and asserts manufacture, sale, delivery their although the four manufacturers whose Nye’s time Mr. exposure. at the Mrs. products it sold have sought protection Nye the asbestos-containing contends that Chapter under 11 of the United States by Corning, manufactured Code, Bankruptcy this fact alone does not Raybestos, Pittsburgh Corning, and Johns Further, prove their insolvency. Manville, pos- and sold North Brothers asserts none of the manufactur- sessed latent defects at the time of their judicially ers have been declared insolvent manufacture, sale, delivery and at the and all are to service of process time of Mr. exposure. Accordingly, Tennessee. North Brothers theory The other on which Mrs. argues, statutory prerequisites none her liability bases strict claim is failure to suit strict have been satisfied. warn. We noted in Flax v. DaimlerChrys (Tenn.2008) insolvency, As matter of Corp., ler debtor need not be to qualify insolvent for long that “Tennessee courts have held that protection Chapter under 11 of the Bank may strictly manufacturer be held liable ruptcy to warn Code. In re Mount Metro. failing consumers of the dan Carbon Dist., (Bankr.D.Colo.1999); gers particular product of a at the time of 242 B.R. (b) expected resulting to and does reach the caused from manufac- ture, construction, formula, *8 user or consumer without substantial design, prepa- change ration, in the condition in which it is sold. service, assembly, testing, warning, (2) (1) applies The rule stated in Subsection instruction, marketing, packaging or label- although ing any product. liability of "Product ac- (a) possible the seller has exercised all includes, to, tion” but is not limited all preparation prod- care in the and sale of his upon following actions based theories: uct, and tort; liability negligence; strict breach of (b) bought the user or consumer has not warranty, express implied; or breach of or product any from or entered into con- discharge duty failure to a to warn or in- tractual relation with the seller. struct, innocent; negligent, whether or mis- concealment, representation, 7. Tennessee Code Annotated section 29-28- or nondisclo- 102(6) (2000) innocent; sure, “product defines ac- negligent, whether or or tion” as any legal theory under other substantive brought per- all actions for on account of tort or contract whatsoever. injury, property damage sonal death or 694 (“Where (Tenn.2007) 727, statutory lan- 36 B.R. 808 Corp.,
In re Johns-Manville (Bankr.S.D.N.Y.1984). ambiguous plain there not ... guage Because is 732 ordinary meaning the four manufac- of the statute must be any proof is no effect.”). leg- insol- that the judicially given “presume declared We turers has' been vent, insolvency statutory prerequisite says in a statute what it means islature says there.” has not been met. and means a statute what 15 Corp., v. Checker Cab Transit Gleaves whether Owens next consider We (Tenn.2000) 799, (quoting 803 Bell- S.W.3d Raybestos, Pittsburgh Corning, Corning, Greer, Telecomms., v. 972 South Inc. subject to were “not Johns Manville or 663, (Tenn.Ct.App.1997)). 673 S.W.2d trigger so as to process” service of statutory subject “not phrase The 28—106(b). Our of section provisions 29— unambiguous; there- process” service of question a of this statute is interpretation fore, plain ordinary look to the we such, novo is reviewed de of law and The meaning phrase of the statute. “sub- correctness. presumption no Chat with receive; ject is defined as “liable to to” Hosp. Auth. v. tanoogar-Hamilton Cnty. to).” (with New (Tenn. exposed World 361, Webster’s Bradley Cnty., 249 S.W.3d 365 Language 1452 2008). Dictionary English (1966). The word “service” is defined as rule our primary governing writ, summons, delivery formal “[t]he statute is to ascertain construction legal process” or other and is “[a]lso intent. legislature’s effect to the give process.” service Blank’s Law termed Truck, v. Sunrise Pontiac-GMC Walker ed.1999) (7th (emphasis in Dictionary 1372 (Tenn.2008). Inc., 301, 309 To 249 S.W.3d original). Correspondingly, “process” is end, begin by examining the lan we writ, esp. or “[a] defined as summons Capi v. guage of the statute. Curtis G.E. < appear respond or court service of 877, Space, tal 155 S.W.3d 881 Modular pro- at 1222. “Service of process>.” Id. (Tenn.2005). In our examination of statu cess,” therefore, necessarily presumes the presume we must tory language, underlying of an lawsuit for existence legislature giv intended that each word be which a summons or writ was issued. The Rains, en full effect. Lanier v. ordinary meaning phrase of the plain and (Tenn.2007). 656, 661 When the S.W.3d subject to service of means process” “not language ambiguous of a statute is in that exposed to or liable to receive a sum- interpretations pro it is to varied appear underlying mons to in court on a Walker, results, contrary ducing Briggs, lawsuit. See v. U.S. Stafford 309, S.W.3d at we construe the statute’s 5, 774, 553 n. 100 S.Ct. 63 L.Ed.2d meaning by examining “the statu broader (1980) (“[A]s rule, general service of scheme, tory history legislation, by which a process is the means court Sherman, other sources.” State v. personal jurisdiction over a defen- obtains (Tenn.2008). However, dant.”); Roberts, No. M2002- Griffin import unambigu when the of a statute is 01898-COA-R3-CV, 2003 WL at ous, legislative we discern intent “from the 2003). (Tenn.Ct.App. *2 this Aug. With *9 ordinary meaning natural and of the statu mind, in to see whether definition we look tory language within the context of the any of the manufacturers were to entire statute without forced or subtle being appear with a to in served summons construction that would extend or limit the a lawsuit. pending meaning.” Flemming, statute’s State v. 19 (Tenn.2000); 195, petition All of the manufacturers filed a 197 see also In S.W.3d A.M.H., 793, Chapter Bankrupt- 11 of the federal Adoption re 215 S.W.3d under
695 Code, §§ codified at 11 101-1532 cy goal U.S.C. 1197. Consistent with its of insulat (2006 Supp.2010).8 Upon filing & the ing provide the debtor to financial stabili petition, stay 11 the automatic Chapter ty, stay designed automatic “[t]he to 362(a), § provision applied, 11 U.S.C. and protect judgments the debtor from to each manufacturer was allowed main- thereof, consequences such as the at operations tain its business while restruc- tachment of a judgment lien to the debt- obligations pursuant to a turing its debt Fields, property.” or’s 828 Kliefoth plan reorganization. See 11 submitted 714, Mo.Ct.App.1992). 716 §§ stay 1101-1174. The automatic U.S.C. stay The applies to the commencement provision, pertinent part, provides that a of an action to recover against a claim a stay as a petition operates debtor that “arose the commence- before (1) continuation, the commencement or ment of the [bankruptcy] case.” 11 U.S.C. including employment the issuance or 362(a)(1) (2006) added). § (emphasis Ac- administrative, process, judicial, cordingly, we must determine when Mrs. proceeding against or other action or Nye’s claims arose relative to the filing of the debtor that was or could have been the four bankruptcy peti- manufacturers’ commenced before the commencement tions. title, under this case or to recover A “claim” is defined the Bank against a claim the debtor that arose ruptcy Code to include a “right pay to before the commencement of the case ment, whether right or not such is reduced under this title. 101(5) judgment-” § to 11 U.S.C. 362(a) (2006). 11 U.S.C. (2006) added). (emphasis phrase The narrowly exceptions, defined With “right payment” to is not defined in the stays any 362 section action Code, Bankruptcy and courts have devised or property belonging debtor to the debt- various tests to right determine when bankruptcy or or the estate. In re Win- payment respect arises with to a claim in LLC, par Hospitality Chattanooga, 401 bankruptcy. bankruptcy court has 289, (Bankr.E.D.Tenn.2009). B.R. 291 jurisdiction exclusive to determine the na stay, The automatic which “is one of the ture of the claims extent of the protections provided fundamental debtor automatic stay. Cathey v. Johns-Man Cf laws,” bankruptcy Lynch v. Johns- (6th 60, Corp., ville Sales 711 F.2d 63 1194, Corp., Manville Sales 710 F.2d 1197 Cir.1983) (holding bankruptcy “ (6th Cir.1983), provide serves ‘to court authority grant has exclusive re ‘breathing spell’ debtor a from collection lief stay). from efforts and to shield individual creditors Corning bankrupt filed its from the effects of a ‘race to the court cy petition in the house,’ District of Delaware on thereby promoting equal treat ” 5, Mtn, October 2000. See In re ment of creditors.’ Owens Com re Webb (3d (Bankr.E.D.Tenn. 195, Cir.2005). LLC, 308, ing, 419 F.3d B.R. Pitts 2009) burgh Corning bankruptcy petition filed its (quoting Printup, re 264 B.R. 169, (Bankr.E.D.Tenn.2001)). Pennsylvania the Western District of per “It on 16, April mits the debtor 2000. See In re attempt repayment Pittsburgh or Com (Bankr. 289, reorganization plan, simply ing Corp., 417 B.R. be re W.D.Pa.2006). pressures lieved of the financial drove When Mrs. filed her 2006, him bankruptcy.” Lynch, into complaint applicable F.2d at test 2000; Coming bankruptcy petition April 8. Owens filed its August Manville on Johns 2000; 1982; Pittsburgh Corning on October Raybestos on March on 1989. *10 696 decision, that disapproval” of Circuit, “universal which includes Delaware
the Third apparent conflict with the based on forth in was the test set Pennsylvania, and treatment of Co., Bankruptcy expansive Code’s Frenville 744 v. M. Avellino & Bienes plain 121.9 The Cir.1984). term “claim.” Id. at (3d the provided This test 332 F.2d Grossman’s, who contracted meso- tiff in of ac when the cause a claim arises that to an allegedly exposure thelioma due to “creeping law. In state tion accrues under asserted a asbestos-containing product, cases, in as asbestos-related such disease” seller. Her against product’s claim the the provides law juries, Tennessee asbestos-containing prod exposure to the of diagnosis with of action accrues cause 1977, in before the years occurred uct Co., 910 v. A-Best Wyatt the See disease. Chapter petition. filed its 11 seller (Tenn.1995). 851, There 856-57 symptoms, diag manifestation of plaintiffs test, Nye’s fore, Mrs. under the Frenville mesothelioma, and lawsuit oc nosis Corning Owens in 2005 claim arose after reorganiza the plan curred after seller’s bankrupt filed for Pittsburgh Corning and by bankruptcy had been confirmed tion manufacturers cy therefore these and test, newly this adopted court. Under subject to the auto not have been would claim in was consid plaintiffs Grossman’s However, test the Frenville stay. matic petition ered to have arisen before the and by the Third Circuit was overturned to the automatic therefore (In Jeld-Wen, Burnt re Inc. v. Van Gross stay. (3d Cir.2010), man’s, Inc.), 114 607 F.3d “a ‘claim’ arises an which held that when pending claim was and thus Mrs. to a exposed pre-petition “pipeline” individual is in the when the test Grossman’s to an giving or other conduct rise test has product adopted. The Grossman’s ‘right pay retroactively underlies a injury, applied pending which been at Bankruptcy Wright Corning, Code.” Id. cases. v. Owens 450 ment’ under (W.D.Pa.2011)10; In re 125. The Third decision over B.R. 541 see also Circuit’s (3d 136, 629 F.3d Rodriguez, was made the face Cir. rule Frenville 2010). Therefore, rela- pre-petition what the court deemed to be well-reasoned Bankruptcy, § "universally rejected,” Obligations in 3:24 mental 9. Frenville has been 708, 710, Andrews, (5th n. 7 re 239 F.3d (2011). Cir.2001), by been described one has Wright, plaintiff putative as "one of the most criticized and least filed court 10. In class precedents suing Corning the cur- followed decided under Owens on November action 24, Imp. argued Bankruptcy defendant that under rent Code.” In re Firearms 2009. The (Bankr. test, discharged Exp. Corp., B.R. the Frenville the claim was Grossman’s, S.D.Fla.1991). Coming's bankruptcy. The federal the Third Cir- Owens had court noted that the Third Circuit that a liberal treatment of the term district cuit noted intent, by Congressional overturned Frenville and established Gross- “claim” dictated is when claim Reports stating that man's a new test to determine evidenced House 101(5) purposes bankruptcy proceed at exists for of a the definition of "claim” section " ing. though plaintiff’s claim possible Even it] ‘broadest definition [and Corning contemplates legal obligations was filed when the Frenville that all law, debtor, ap contingent, applicable the district court remote or test was no matter how retroactively, rely bankruptcy plied in the the Grossman's test will be able to be dealt with ing permits possible on the conclusion of United States case ... the broadest [and] ” Grossman’s, Harper Dept. Supreme Court in v. Va. Taxa bankruptcy relief in the court.’ tion, 113 S.Ct. 125 L.Ed.2d (quoting H.R.Rep. No. 95- 509 U.S. 607 F.3d at " law, (1993), (1977), 'a rule federal once reprinted in at 309 5963, 6266); applied parties to the also Lawrence announced U.S.C.C.A.N. see Ahern, III, Marsh, given controversy, full retroactive must be R. & Darlene T. Environ-
697
tionship
adopted
charges
Draggoo
test
Grossman’s is de-
the debtor.
In re
Elec.
Co.,
(Bankr.NJD.Ind.
Nye’s
when Mrs.
57
terminative as to
claims
B.R.
1986).
occurs,
against
Corning
arose
and Pitts-
Once this
the automatic
Corning. Applying
pre-petition
stay provision
burgh
longer
is no
and
effective
claim,
relationship
Nye’s
process against
test to Mrs.
we
service of
the debtor is not
by
Nevertheless,
claim arose
her
prohibited
conclude that her
when
section 362.
exposed
was
to the asbestos-con-
these manufacturers were
husband
still shielded
Therefore,
taining products.
process
these manu-
from service of
in Tennessee
of
specific injunc-
facturers were not
to service
courts under the terms of
process
in Tennessee because Mrs.
tions set forth in their
plans
confirmed
of
reorganization.
claims
these manufacturers arose
their
filing
bankruptcy
before the
of
cases.
Johns Manville was the first of the
analysis
We now
our
shift
two manufacturers to have
plan
its
con
Raybestos
the other two
firmed. Johns Manville’s bankruptcy was
manufacturers —
plans
reorga
precipitated,
by
and Johns Manville. The
of
company’s
inabili
Raybestos
ty
debts,
nization for
present
Johns Manville
to meet its
by
but
its
by
had been confirmed
the Bankruptcy
anticipation of future asbestos-related tort
comp
Court before Mrs.
filed her
of
by parties
causes
action
who had been
matter,
a general
exposed
As
confirma
to Johns Manville’s asbestos-con
laint.11
plan
reorganization
tion of the
taining products
ends the
bankruptcy
before it filed
stay,
automatic
the property
re-vests
of but who would not
symptoms
manifest
debtor, and, pursuant
the estate in the
asbestos-related disease during
pen-
1141(d),12
§
simultaneously
11 U.S.C.
dency
bankruptcy
dis-
proceedings.13
law,’
adjudicating
effect
“[ejxcept
provided
all courts
federal
as otherwise
in this
subsection,
litigants
... and extended ‘to other
plan,
whose
in the
or in the order con-
firming
plan,
cases were not final at the time of the
plan
the confirmation of
[first]
” Wright,
(quoting
discharges
B.R.
decision.'
at 553
...
the debtor from
debt that
2510).
Harper,
ued its business 5) future claims will all present the provided for plan reorganization, paid substantially be valued all such of a trust which creation manner; same satisfy their proceed claimants could to 6) plan approved by is at least settlement, either media- through claims who of all asbestos claimants percent tion, arbitration, litigation. or tort Id. To vote; and from protection Manville’s ensure Johns 7) representative appointed. a futures injury lawsuits personal future massive (2006). issued, If 524(g)(2)(B) 11 U.S.C. prevent reorgani- its successful that could enjoin en- channeling injunction would zation, bankruptcy court issued taking legal pur- action for the tities from “channeling injunction” pre-condition indirectly collecting, poses directly or plan. confirmation of the Id. This chan- receiving payment or or recov- recovering, present neling injunction provided ery respect with asbestos-related prohib- claimants were and future asbestos that, under the confirmed claim demand Manville could suing ited from Johns reorganization, paid is to be plan of claims only proceed against the asbestos part by personal the asbestos whole or trust. Id. injury pre-condition trust as a established injunction. by strategy em- Congress, inspired of Johns Man- ployed by the architects reor- Chapter plans The confirmed enacted section reorganization, ville’s Raybes- Manville and ganization Johns 524(g) Bankruptcy part Code as injunctions. channeling tos contained Bankruptcy Reform Act of 1994 Therefore, Nye against these suit Mrs. problem claims on a address the asbestos and for that prohibited manufacturers was Grossman’s, reason, 607 F.3d national basis. See neither of them was if 524(g) provides that in the courts of this process at 126. Section service of met, Nye complaint have been at the time the following pre-conditions state injunc- an filed.14 bankruptcy may court issue channeling the first trust 29-28- fore the creation of 14. Tennessee Code Annotated section 106(b) legislature eight years Manville. The could not be- Johns was enacted 1978— summary, impart “substantially we conclude that Mrs. accurate instructions presented proof establishing concerning has the first the law applicable to the mat Tennessee Annotated Hensley element under Code ters at issue.” Transp., CSX *13 29-28-106(b), Inc., 824, Corning, section that Owens 310 S.W.3d 833 (Tenn.Ct.App. 2009) Raybestos, and Johns Pittsburgh Corning, (quoting Bara v. Clarksville Mem’l subject pro- Inc., (Tenn. Manville are not to service of 1, Sys., Health 104 S.W.3d 3-4 Therefore, cess in the state of Tennessee. Ct.App.2002)). considering When whether liability a Nye pursue Mrs. can strict ac- a prejudicial trial court committed error in against injuries tion North Brothers as to instruction, a jury duty it is our to review of her allegedly sustained as result charge entirety in its and consider it as exposure husband’s to of those whole, a and the instruction will not be manufacturers that North Brothers sold to if “fairly legal invalidated defines the Dupont. issues involved in the case and does not jury.” mislead the Cambridge Otis v.
Jury Instructions Co., Mut. Fire Ins. 850 S.W.2d (Tenn.1992). Learned, judgment The of a trial court Intermediary Instruction will not be set aside based on an erroneous Next, portion we review a of jury appears instruction unless it that the jury. the trial court’s instructions to the probably erroneous instruction more than jury Whether a instruction is erroneous is not affected the judgment jury. of the a law question of and is therefore 36(b); R.App. Tenn. P. Gorman v. Ear presumption to de novo review with no of (Tenn.1994). hart, 876 S.W.2d correctness. Solomon v. First Am. Na The trial court’s jury instructions to the Nashville, tional Bank 774 S.W.2d of at issue are as follows: (Tenn.Ct.App.1989). legitimacy a A jury’s dependent verdict is on the accu manufacturer or a seller cannot be instructions, racy trial held liable for failure to warn you of the court’s which if find consumer, DuPont, legal are the sole source of the principles already required jury’s for any danger deliberations. aware of in connection with Therefore, duty a trial court is under a to the use of asbestos-containing products, $21,500 channeling payout just have had trusts in mind when the will in a result on a enacted, thus, Coming statute was Lloyd statute does not mesothelioma claim. Dixon, Coombe, contemplate against Geoffrey Amy how a claim a seller McGovern & channeling Bankruptcy should be handled when a trust is Asbestos Trusts: An Overview argues Activity involved. North Brothers that allow- Trust Structure and with Detailed Re- Trusts, 128, (2010). ing ports Largest Mrs. strict suit under the on the recovery given http://www.rand.org/pubUcations.html. statute could result in double Simi- availability larly, of funds the manufacturers’ while there is no evidence the record However, Nye fully Nye trusts. Mrs. will not be as to whether Mrs. has filed a claim trust, compensated any against Raybestos under of the trusts. North Claims Process- Inc., ing Facility, reports Brothers attached documentation as an exhib- a payout mere 2% response opposition it to a a motion in accepted rate for an established claim under trust, indicating Nye Raybestos resulting limine that Mrs. collected in an actual $26,250 $2,500 only from the Johns Manville trust dollar amount of for a mesotheli- Inc., Processing Facility, and that Mrs. has filed a claim oma claim. Claims Coming Corpora- http://www.cpf-inc.com/raytech-trust/raytech-
the Owens
trust. The Rand
(last
2001).
reports
payout
trust-faqs/
April
any
tion
a current
rate of
for
visited
7.5%
event,
implementation
the scheduled value of a claim allowed under
to the extent that
payout
recovery,
the Johns Manville trust and a
statute results in
double
10%
legislative
rate
proper-
for the scheduled value of a claim al-
for
action and
matter
trust,
Corning
ly
judiciary.
lowed under the Owens
which
addressed
warn, they
kind
liable for failure
warnings
held
adequate
you
if
find that
or
of contradicts each other.
to us kind
sellers
by manufacturers
given
were
to DuPont.
the trial court sent a note
Subsequently,
jury, stating as follows:
by reminding
note
preface
Let me
this
addition,
that DuPont
you find
if
charge
all of the
and not
you to consider
workplace
safe
provide
failed
ignore the others.
single out some and
failure
Nye and that
this
Hugh Todd
charge
parts
me
that all
say
Let
him,
damage
cause
was the sole
equally important.
are
*14
found DuPont was
you
then
have
determining whether DuPont was the
you may
not
injury,
of his
sole cause
injury you
cause of Mr.
sole
or
of North Brothers
the fault
consider
knew com-
consider what DuPont
should
supplying asbestos-
any
company
other
knowledge
with the
of all others.
pared
to DuPont.
containing materials
there was a fail-
determining
whether
what
you
to warn
should consider
ure
clarifi-
sought
jury’s spokesperson
with the knowl-
compared
DuPont knew
charges as follows:
cation of the
edge of all others.
Well,
product
if we find
Specifically,
Mrs.
contends
being
of it
defec-
and because
defective
is erroneous because
is
this instruction
being
knew about it
everyone
tive and
intermediary”
the “learned
doctrine
based on
still manufactured
and it was
defective
5
adopted
which has not been
Ten
1
that’s
product,
as a defective
and sold
cases,
except
nessee for
para-
with this
where we have trouble
involving pharmaceuticals and medi
cases
manufacturer or the
graph as far as the
Nye argues
Mrs.
that this
products.
cal
liable for failure to warn
seller cannot be
jury
allows the
to absolve
instruction
DuPont,
consumer,
they
if
find the
a
liability merely upon
Brothers of
North
So,
you
already
danger.
aware of
DuPont knew about the risks
finding that
know,
evidence that
enough
there’s
asbestos-containing products pur
of the
that DuPont knew of all
showed
North Brothers.
chased from
everyone
danger but so did
else.
requires us to review the
This issue
at
guess
I
whei'e we are kind of stuck
intermediary
of the learned
doc-
propriety
at
that I
point
that we are stuck
doctrine, which allows a seller
trine. This
product
we all feel the
was defec-
think
rely
warn
to
on an
in a failure to
case
danger
prod-
of the
tive because of
intermediary
convey warnings
to
about a
of that and be-
uct itself. So because
from section
dangerous product, derives
(Second)
paragraph here as far as
cause of this
Restatement
of Torts
388
n to section 388
(1965).16
pro-
manufacturer and seller cannot be
Comment
Implants
Litig.,
intermediary
In re TMJ
Prods. Liab.
872
15. The learned
doctrine is some-
1019,
(D.Minn.1995).
sophisticated pur-
F.Supp.
times referred to as "the
1029
chaser doctrine.”
(Second)
pro-
of Torts
16. Restatement
Although
may be
of difference
there
shades
vides as follows:
intermediary rule’
between
learned
['the
Dangerous
Known
be
for Intend-
Chattel
to
sophisticated purchaser
rule’]
and 'the
ed Use.
courts,
they
applied by
the fundamental
are
directly
through
supplies
a
One who
a manufacturer should be al-
tenet is that
person a chattel for another to use is
third
rely upon
knowledgeable
to
certain
lowed
sup-
liability to those whom the
to
product
individuals to whom it sells a
expect
chattel with
plier
to use the
warnings
should
convey
re-
to the ultimate users
endan-
of the other or to be
the consent
garding any dangers associated with the
use,
probable
physical harm
gered
its
product.
product
applicable
vides that when seller sells
in failure to warn suits where a
may
intermediary,
rely
an
the seller
on the
physician
intermediary
is the
between a
intermediary
provide warnings
to the
pharmaceutical
defendant
or other medical
product
if such reliance is
user
product
injured pa-
manufacturer and an
reasonable under the circumstances. Al
id.;
Med., Inc.,
King
tient. See
v. Danek
though
supplier’s
section 388 addresses a
429,
(Tenn.Ct.App.2000);
37 S.W.3d
452-53
duty
negligence,
to warn under the law of
Med., Inc.,
Harden v. Danek
985 S.W.2d
apply
principles
duty
courts also
449, 451 (Tenn.Ct.App.1998).
See,
liability.
e.g.,
to warn in strict
Acker
Ford,
relying on
Motor
Pham.,
Wyeth
mann v.
526 F.3d
Wagoner,
v.Co.
183 Tenn.
192 S.W.2d
(5th Cir.2008);
n. 5
Smith v. Walter C.
(1946)
Co.,
Dycho
and Whitehead v.
(3d
Best, Inc.,
927 F.2d
741-42
Cir.
(Tenn.1989),
use for which it is
and
dangerous.
for use in
employees
when the
containers to its
driving the car
these
injured while
was
aprons.
Id.
cleaning glue
and caused an accident.
from their work
sprang up
hood
salesman’s inde-
argued
Magnavox,
that the
plaintiff,
employee
Id. Ford
an
failing
intervening act
danger-
pendent
naptha’s
had not been advised
neglecting
make use of the catch
propensities.
Id. at 596. Unaware
ous
the catch broke
vendee about
advise his
dangerous propensities,
plain-
the
naptha’s
proximate
was the
causal chain and
a can of it home to clean her
tiff took
accident,
negli-
not Ford’s
cause of
by Magna-
allowed to do
apron as she was
issue, as
Id. The determinative
gence.
to use the
attempted
vox. Id.
she
When
Court,
whether the evi-
by this
noted
machine,
explo-
an
washing
in her
naptha
salesman,
as an
established that
dence
resulted,
severely in-
sion
and she was
vendor,
put on such no-
intermediary
plaintiff
Id. The
sued the distribu-
jured.
remedy
“as to
tice of the defect and
alleged
naptha
in strict
tors
into
the rule which fastens the
bring
play
defective,
product was
unreason-
intervening negligence
charge of conscious
without sufficient
ably dangerous, and sold
and reheves
upon an intermediate vendor
warnings
dangerous qualities.
Id. at
liability.”
manufacturer of
Id. at 842
594.
This
stated
(emphasis
original).
Court
summary judg-
granted
The trial court
continuing liability
that under this rule
distributors, in
part upon
ment to the
such as Ford to succes-
of a manufacturer
was a learned in-
ground
Magnavox
purchasers
“subject
be[ing]
de-
sive
termediary and therefore
distributors
intervening
...
act of an
stroyed
*16
Magnavox to
reasonably rely
could
on
(2)
(1) independent,
effi-
agency which is
naptha’s danger
employees
warn its
about
(3)
(4)
cient,
reasonably
not
conscious and
instruct
them in its use.
Id. at 596.
and
anticipated.”
have
Id. at 844.
to
been
grant
The court of
reversed the
of
appeals
adopt
the learned inter-
This Court did
that
ma-
summary judgment, noting
“[t]he
mediary
Wagoner,
doctrine in
but rather
jority view and the view that this Court
intervening
the
cause doctrine.
applied
one is that
the
deems to be the better
and distinct doc-
separate
These are two
extends to
duty
manufacturer’s
to warn
trines;
the former
application
of
does
employer-
well as the
employee-user
adoption
not indicate an
of the latter.
Co., No.
purchaser.”
Dycho
Whitehead v.
intermediary
The learned
doctrine was
(Tenn.Ct.App.
at *8
mediary concerning medical asso- risks Third, the ciated with the chemical. Finally, argues North Brothers system for industrial chemi- marketing intermediary that even if the learned doc prescription cals differs from that of case, extended to this the trial trine is not drugs and other chemicals are —benzene instruction was still correct because court’s to the strict limitations on law causation accurately it reflects the apply drugs.... availability the properly in Tennessee and allowed Fourth, relationship the of doctor and was the sole jury to find that DuPont relationship a one-on-one patient is Nye’s injuries. Mr. cause in fact of the assesses the individual where doctor Causation, element of an essential patient.... Even an em- needs of each action, any products liability refers to both who aware of direct effects of ployer is be unaware more cause” and “cause fact.” may “proximate the chemical This Court has noted the distinction be- purchased from North Broth- tween these two terms as follows: ers, North Brothers could not be held in fact refers to the cause and
Cause
liable for
support
failure to warn.
of its
relationship
effect
between the defen-
argument that
knowledge
DuPont’s
plaintiffs
dant’s tortious conduct and the
products’ dangers absolves North Brothers
Thus,
injury or
loss.
cause
fact deals
liability,
quotes
Brothers
the fol-
with the “but for” consequences of an
Harden,
lowing language from
relied on
act. The defendant’s conduct
ais
cause
the trial court in formulating the instruc-
of the event if the event would not have
tion at issue:
occurred but for that conduct.
In con-
manufacturer will be
[A]
absolved of
trast,
cause,
cause,
proximate
or legal
liability for failure to warn for lack of
concerns a determination of whether le-
causation where the consumer was al-
gal liability
imposed
should be
where
ready aware of the danger, because the
cause in fact has been established.
failure to warn cannot be
proximate
the
legal
Proximate or
cause is a policy deci-
cause of the
injury
user’s
if the user had
legislature
sion made
or the
actual knowledge
ques-
of the hazards in
deny liability
courts to
for otherwise ac-
tion.
tionable conduct based on considerations
Harden,
‘User’ or, feasible, if products on the that was not enjoying product, the benefit of the North Brothers could em- provided have the case of in automobiles or passengers warning ployees pamphlets or conducted well airplanes, as as those who are utiliz- joint information DuPont to sessions with ing purposes doing it for work it, employees dangers alert associated as in the upon employee case an buyer products. making the ultimate who is re- with See v. St. Whitehead (3d Co., he has Lead pairs upon automobile which Joe F.2d Cir. 1984). purchased. added).
(Emphasis summary, we hold that the learned intermediary doctrine applicable is not un- knowledge danger DuPont’s of the der the circumstances case. The of this asbestos did not DuPont the sole make jury trial court’s based on that instruction Nye’s injuries. cause in fact of Mr. Rath doctrine, absolving Brothers of lia- North er, knowledge based on their of the dan bility Nye’s injury upon finding for Mr. gers of the asbestos-containing products, DuPont was already that aware of may be shown DuPont and that both dangers asbestos-containing prod- North Brothers were the causes in fact of adequate warnings given ucts or that were Nye’s injuries Mr. of their as a result dangers, to DuPont of such was erroneous failure to products’ warn him of the dan proper and was not otherwise under the gers. disputes North this and Brothers It apparent law of causation. further is contends that it cannot be the in fact cause Mr., that this error more the instruction Nye’s injury for two reasons. judgment than not First, probably affected the North that if Du argues Brothers jury. Accordingly, we find purchased Pont had not the asbestos-con jury instruction was error. reversible taining products supplied North Brothers DuPont, “DuPont them bought would have Conclusion Second, from another source.” stated, that, the reasons Brothers notes that Mr. For we hold admitted testimony pursuant to Tennessee Annotated deposition that he never saw the Code 29-28-106(b), boxes were used North Brothers section North Brothers ship liability grounds to DuPont. North to suit on strict *20 argues Nye allegedly Nye Brothers that Mr. would never Mr. injuries for sustained exposure product “subject pro- a result of his to the asbestos- is not to service of that North Brothers containing products ... judicially cess or has been declared supplied to DuPont. We further hold that insolvent.” The trial court found that all committed harmful error in the trial court of the defendant manufacturers of the as- intermediary adopting the learned doctrine products, Corpora- bestos Johns Manville jury. Accordingly, in its instruction to the (“Johns Manville”), Raybestos-Man- tion of the judgment we affirm the Court hattan, (“Raybestos”), Corning, Inc. judgment The of the trial court Appeals. Pittsburgh Corning, were unavailable reversed, and the case is for a remanded process for service of and that North ap- new trial. are assessed to the Costs potential liability Brothers therefore faced Industries, Inc., pellant, National Service liability grounds. on strict Brothers, Inc., surety, and its f/k/a/ may necessary. which if for execution issue “The construction of a statute and its to the of a are application ques- facts case HOLDER, J., JANICE M. filed a law, tions of which we review de novo.” in separate opinion, concurring part and Ball, Larsen-Ball v. S.W.3d in in dissenting part, which WILLIAM C. (Tenn.2010). Tennessee Code Annotated JR., KOCH, joined. J. 29-28-106(b) section states that no product HOLDER, J., concurring JANICE M. liability action based on strict part dissenting part. “shall be commenced or maintained against any ... seller unless the manufac- I majority’s concur conclusion turer ... not subject shall be to service of intermediary that the learned doctrine is added). process.” (emphasis The statute I applicable facts of this case. however, specifically references the commencement disagree, Pittsburgh Corn- ing Corporation (“Pittsburgh Corning”) language requires action. This us (“Owens Corning Corporation and Owens to determine the status of the law and Corning”) were unavailable for service of on facts the date the action was com- that North process and Inc. S, Inc., menced. Braswell v. AC Cf. (“North Brothers”) therefore is (Tenn.Ct.App.2002) 589-90 liability pursuant suit strict to Tennes- (holding pursuant that a claim made see Code Annotated section 29-28-106 Tennessee Code Annotated section 29-28- (2000). 106 accrues and the statute of limitations September Hugh Nye begins Todd to run when the manufacturer de- mesothelioma, diagnosed with a disease bankruptcy). Nyes’ clares Whether exposure that results from to asbestos. claim North Brothers can be com- 15, 2006, wife, May Nye On Mr. and his menced or pursuant maintained to Tennes- (“the Evelyn Nye, Nyes”) complaint filed a 29-28-106(b) see Code Annotated section alleging that North Brothers was liable for requires us to determine whether injuries sold, Mr. Nye. North Brothers Nyes could have obtained service of pro- manufacture, but did not the asbestos cess on the asbestos manufacturers on the exposed. to which Mr. Nyes date the commenced their case. Nyes alleged that North Brothers was Nyes On the date the filed their com- strictly liable for Mr. injury. Ten- plaint, each of the manufacturers had filed nessee Code Annotated section 29-28- 106(b) bankruptcy. petition bankruptcy A for permits strictly a seller to be held automatically stays proceedings against product liable for a defective manufactured 362(a) (2006). another if the manufacturer of that the debtor. 11 U.S.C. *21 708 test, a claim According to the Frenville to claims1 de stay applies automatic
The if the cause of action ac- files post-petition the debtor to arise before termined claims”). to the law of the forum according crues bankruptcy (“pre-petition for (In petition is filed. Jeld-Wen, bankruptcy re after the v. Brunt Gross state Inc. Van (3d 114, Frenville, man’s, Inc.), at At the time 122 Cir. 744 F.2d 337. 607 F.3d (en banc). action, 2010) that arise after their a bank- Nyes Claims commenced bankruptcy (“post- the Third applying for the law of petitions ruptcy the debtor court claims”) to the against are claims petition Nyes’ Circuit the auto stay. particular, automatic look to the law of manufacturers would on a process service of stay prevents matic when the of Tennessee to determine state 11 bankruptcy. U.S.C. debtor Nyes’ cause of action accrued. Tennessee 362(a)(1).2 § “creeping disease” law dictates eases, injuries, as asbestos-related such ju- court has exclusive bankruptcy The diag- accrues with the the cause of action the nature of the to determine risdiction Wyatt v. A-Best nosis of disease. See extent of the automatic and the claims (Tenn. Co., Inc., 910 856-57 S.W.2d Sales stay. Cathey Johns-Manville Cf. 1995); Corp., 796 see also Potts v. Celotex Cir.1983) (6th (hold- 60, 62 Corp., 711 F.2d (Tenn.1990) (holding the 683 court has exclu- bankruptcy ing cause of action for mesothelioma plaintiffs stay). relief from a authority grant sive diag- until the condition was did not accrue of whether the claims Determination reasonably diag- have been nosed or could pre- or the manufacturers were against nosed). therefore, requires ap- us to post-petition, presiding bankruptcy court the test the ply diagnosed Mr. with mesothelio- applied Nyes at the time the would have 2005. The cause of ac- September ma in North Broth- complaint against filed their tion, claim, accrued in and therefore the ers. for Pittsburgh Corning filed bank- 2005. 16, 2000, April and Owens Corn- ruptcy on bankruptcy Corning cases of Owens
The
bankruptcy
on October
ing filed
filed in
Pittsburgh Corning were both
B.R.
Pittsburgh Coming,
In re
2000.
Corning,
the Third Circuit.
re Owens
(3d
295;
at
Cir.2005);
Coming,
at
In re
419 F.3d
201-02
In re
419 F.3d
According to the Frenville test in
289, 201-02.
417 B.R.
Pittsburgh Coming Corp.,
(Bankr.W.D.Pa.2006).
Nyes
time the
commenced
effect at the
On the date the
Brothers,
North
against
their action
complaint against
their
Nyes filed
Nyes’
against
Pittsburgh
claims
both
followed the
Third Circuit
post-peti-
are
Corning
Corning
and Owens
accrual test set forth
now-abandoned
(In
stay
apply
The automatic
did not
tion.
&
v. M. Frenville Co.
Avellino Bienes
(3d
Frenville),
bankruptcies were filed be-
because both
re M.
F.2d
Cir.
1984)
Grossman’s,
September
Nyes’
fore the
claim accrued
by In re
overruled
Nyes
therefore could have ob-
121.
2005.
F.3d at
continuation,
including
or em-
bankruptcy
“right
payment,
the issuance
1. A
claim is a
right
not such
is reduced to
ployment
process
whether or
...
other action ...
or
fixed,
judgment,
liquidated, unliquidated,
that was or could have been commenced be-
matured, unmatured,
contingent,
disputed,
the commencement of the case under this
fore
secured,
undisputed,
legal, equitable,
title,
recover a claim
the debtor
or to
101(5)(A) (2006).
§
unsecured.”
U.S.C.
that arose before
commencement
case under this title.”
362(a)(1)
creates an automatic
2. 11 U.S.C.
stay
prevents “the commencement or
*22
on
process
tained service
both Owens
followed the now-abandoned Frenville ac-
crual
Corning
Pittsburgh Corning
Subsequent
on the
test.
actions of the
they
complaint against
date
filed their
Third Circuit Court of Appeals cannot
process
make service of
North Brothers.
unavailable retro-
actively. The determinative issue before
opinion
The Third Circuit’s
in Gross-
process
us is whether service of
was avail-
man’s overruled Frenville on June
2010.
able against Pittsburgh Corning and Ow-
majority
ruling authorized to state that Justice I am would have been attempted never been opinion. concurs this KOCH the action was com- invalid at the time menced. process that service of
I would hold against both have been obtained
could Corning on Corning and Owens
Pittsburgh 15, majority, agree I with
May 2006.
however, was not process that service of Mansville and
available both Johns of Tennessee STATE virtue of the effect Raybestos by v. in the con- channeling injunctions included plans.5 bankruptcy firmation of their D. RALPH. Lawrence it found that The trial court erred when Tennessee, Appeals Court Criminal Corning Pittsburgh Corning and at Nashville. process. not amenable to service of were liability of permitted The trial court July 2010. Assigned on Briefs seller, to be determined Dec. 2010. to Tennessee jury pursuant Code Appeal Application for Permission 28—106(b).In addi Annotated section 29— by Supreme Denied Court tion, specifically the trial court declined March 2011. the manufac rule on the issue of whether insolvent, record does turers were and the for us to
not contain sufficient evidence
occurred in
near-
court ruled that
on section 29-28-106
B.R. at 557.
Grossman’s
discharge, but re-
ly
adopted
the claims were
com-
a decade before this Court
discharge
Balentine,
manded the case to determine if
McIntyre
parative fault in
process.
bankruptcy
claims violated due
(Tenn.1992). Tennessee Code An-
S.W.2d 52