AMENDED AND SUBSTITUTED MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT GENERAL ELECTRIC COMPANY’S MOTION FOR SUMMARY JUDGMENT
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND.1056
A. Procedural Background .1056
B. Factual Background .1057
II. LEGAL ANALYSIS.1057
A. Standards For Summary Judgment.1057
B. The Statute Of Repose.1058
1. Improvements to real property.1059
2. Are the turbines improvements to real property?.1061
3. Are the insulation blankets improvements to real property?.1062
4. Remaining Challenges.1065
III. CONCLUSION.1065
Under Iowa’s statute of repose, do products that have previously been attached to property constitute “improvements to real property” when, at the time of the alleged injurious exposure, the products are in an unattached state? The defendant manufacturer contends that they do, and therefore asserts that the plaintiffs claims of injury from exposure to asbestos insulation blankets, temporarily removed from steam turbines during maintenance, are barred by 614.1(11). The plaintiff disagrees and argues that because the products were unattached at the time of exposure, they cannot be deemed improvements to real property within the meaning of the statute. Although the Iowa Supreme Court has not been confronted with the exact factual scenario presented here, the court finds that the defendant’s motion may be resolved by application of the principles set forth in the cases that have addressed the definition of “improvement to real property” and the requirements of Iowa Code § 614.1(H). 1
I. INTRODUCTION AND BACKGROUND
A. Procedural Background
This products liability lawsuit has traveled a lengthy and complex procedural route. Rather than attempt an exhaustive recitation of these procedural matters, the court will set forth highlights relevant to the pending motion.
On August 2, 1993, plaintiffs Oscar and Marion Harder filed this diversity action against numerous manufacturers, processors, distributors, and sellers of asbestos and asbestos-containing products. 2 In their complaint, the Harders allege that on-the-job exposure to various asbestos products caused Oscar to develop mesothelioma — a terminal, asbestos-related cancer. They assert claims of negligence, strict liability, breach of warranty, and misrepresentation against each of the defendants.
On January 11, 1994, defendant General Electric Company (“GE”) filed its answer, generally denying the allegations in the com
The court heard oral arguments on GE’s motion for summary judgment on June 18, 1998, at the Federal Courthouse in Des Moines, Iowa. Harder was represented by counsel Michael J. Galligan and Richard Doyle of Galligan, Tully, Doyle & Reid, P.C., Des Moines, Iowa. GE was represented by counsel Richard J. Sapp of Nyemaster, Goode, Voigts, West, Hansell & O’Brien, P.C., Des Moines, Iowa. 3
B. Factual Background
The parties agree that for purposes of GE’s motion for summary judgment, the following factual background is undisputed. From 1956'until his retirement in 1989, Oscar Harder was employed as a utility worker for Iowa Public Service (“IPS”). 4 During the course of his employment with IPS, Oscar performed general maintenance duties at several power plants, including the IPS Big Sioux Power Plant, Kirk Station, Port Neal Station, Maynard Station, and the Port Neal North facility.
One of Oscar’s maintenance duties involved overhauling GE steam turbines at the power plants. These overhauls — or “maintenance outages” — took approximately four weeks to complete. The first day or two of the overhaul was devoted to removing thermal asbestos insulation blankets from underneath the turbine’s exterior steel casing in order- to facilitate inspection and servicing of the turbine’s internal components. The thermal insulation blankets measured four feet by six feet, and were three to four inches thick. Each turbine contained approximately seventy-five to one hundred blankets. GE customized and supplied the blankets as components of its steam turbines. The thermal insulation blankets were custom fabricated for each turbine. The purpose of the blankets was two-fold: - to maximize energy efficiency and to prevent utility workers from sustaining burns should they come into contact with the turbine. Once the blankets were removed to conduct maintenance on the turbines, they were stored on the turbine room floor for the remainder of the overhaul. When the overhaul was complete, the blankets were reinstalled. Oscar breathed asbestos dust after the blankets were removed and again when he cleaned up the area where the blankets had been stored during the maintenance period.
Oscar was diagnosed with malignant meso-thelioma on April 26, 1993. He died less than a year later, on January 26, 1994. Harder’s complaint against GE was filed more than fifteen years after the installation of the turbines containing the thermal insulation blankets.
II. LEGAL ANALYSIS
A. Standards For Summary Judgment
This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Fed.R.Civ.P. 56 in a number of recent decisions.
See, e.g., Swanson v. Van Otterloo,
Rule 56. Summary Judgment
(b) For Defending Party. A party against whom a claim ... is asserted ...may, at any time, move for summary judgment in the party’s favor as to all or any part thereof.
(e) Motions and Proceedings Thereon.... The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(b) & (c) (emphasis added). Applying these standards, the trial judge’s function at the summary judgment stage of the proceedings is not to weigh the evidence and determine the truth of the matter, but to determine whether there are genuine issues for trial.
Quick v. Donaldson Co.,
Furthermore, “[wjhere the unresolved issues are primarily legal rather than factual, summary judgment is particularly appropriate.”
Mansker v. TMG Life Ins. Co.,
B. The Statute Of Repose
As indicated previously, GE moves the court for summary judgment on the ground that Harder’s action against it is barred by Iowa Code § 614.1(H). 5 Section 614.1(11), one of Iowa’s statutes of repose, provides as follows:
Improvements to real property. In addition to limitations contained elsewhere in this section, an action arising out of the unsafe or defective condition of an improvement to real property based on tort and implied warranty and for contribution and indemnity, and founded on injury to property, real or personal, or injury to the person or wrongful death, shall not be brought more than fifteen years after the date on which occurred the act or omission of the defendant alleged in the action to have been the cause of injury or death. However, this subsection does not bar an action against a person solely in the person’s capacity as an owner, occupant, or operator of an improvement to real property-
Iowa Code § 614.1(11). The Iowa Supreme Court has “characterized this as a statute of repose, which closes the door after fifteen years on certain claims arising from improvements to real property.”
Krull v. Thermogas Co.,
Statutes of repose are distinct fi-om statutes of limitation. Statutes of limitation are “ ‘designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.’”
American Pipe & Constr. Co. v. Utah,
Under the statute of repose in question here, “[t]he fifteen-year period begins to run from the date of the act or omission causing the injury or death,” that is, the date of the improvement to real property,
Krull,
In this case, in GE’s view, the steam turbines and the thermal insulation blankets that allegedly caused Oscar’s injury constitute improvements to real property under Iowa Code § 614.1(11). Accordingly, because the turbines and their insulation blankets were installed more than fifteen years prior to commencement of this action, GE seeks summary judgment on the ground that Harder’s claims against it are barred by the statute of repose. Harder raises three arguments in resistance to GE’s motion for summary judgment. First, although Harder does not dispute that more than fifteen years have passed since the installation of the turbines and the blankets, she contends that Iowa Code § 614.1(11) is inapplicable to her claims, because neither the GE turbines nor the thermal insulation blankets constitute “improvements to real property” within the meaning of this statute of repose. Second, Harder asserts that Iowa Code § 614.1(11) is inapplicable to latent disease cases. Finally, Harder argues that Iowa Code § 614.1(11) should not be invoked to “extinguish an inchoate cause of action.”
1. Improvements to real property
Turning first to Harder’s assertion that the steam turbines and thermal insulation blankets do not constitute improvements to real property, the court observes that Iowa Code § 614.1(11) does not define the term “improvement” or otherwise illuminate which products fall within this statute’s time constraints.
See
Iowa Code § 614.1(11);
see also Krull v. Thermogas Co.,
First, in
Krull v. Thermogas Co.,
Two years later, in
Buttz v. Owens-Corning Fiberglas Corp., 557
N.W.2d 90 (Iowa 1996), the Iowa Supreme Court was again put to the task of defining “improvement” for purposes of § 614.1(11).
Buttz, 557
N.W.2d at 91-92. In
Buttz,
the plaintiffs suffered asbestos exposure prior to and during the application of asbestos insulation to the property.
Id.
at 91. The specific issue presented was whether asbestos insulation products, “prior to and during their application to [duct work and boilers], were ‘improvements to real property’ under section 614.1(11).”
Id.
The plaintiffs, pipe fitters who worked closely with asbestos insulation applications, argued that, because their exposure occurred before the products were applied to the buildings, the asbestos products could not be considered to be improvements to real property.
Id.
Applying the definition articulated in
Krull,
the
Buttz
court found that the question became “whether asbestos products, in their unattached state, were ‘permanent addition[s] to or betterment of real property.’”
Id.
The Iowa Supreme Court recognized that other courts had applied an “ ‘attachment’ analysis” to hold that “unattached insulating material is not an improvement under statutes of repose.”
Id.
at 91-92 (citing
Corbally v. W.R. Grace & Co.,
The key to application of section 614.1(11) is the physical attachment of the asbestos material to the real estate, not the intent to attach it as suggested by these defendants. The asbestos products were not attached at the time these plaintiffs were exposed and could not be considered to be improvements to real estate.
Buttz, 557 N.W.2d at 92. Therefore, the court held that, “for summary judgment purposes, the products involved in this case were not improvements to real property within the meaning of section 614.1(11).” Id.
In
Tallman v. W.R. Grace & Co.-Conn.,
We held in Buttz that, despite an intent by the contractor to ultimately attach a product to the structure, that was not enough to make it an improvement. The key was the actual attachment of the product. [Buttz, 557 N.W.2d] at 92. This is the precise issue raised by the manufacturers in their cross-appeal in this ease, and because it was rejected in the Buttz case, we summarily affirm on the cross-appeal. '
Tallman,
However, the court observed that the plaintiffs appeal in Tallman raised a question not directly answered in either Krull or Buttz: “whether asbestos, once attached, is an ‘improvement’ even though the asbestos product was not intended to, and did not actually, enhance the value of the property.” Id. at 209. Although Tallman conceded that the fireproofing overspray met the second portion of the Krull test, insofar- as it involved the expenditure of time and money, he argued that it could not possibly be considered an enhancement to the property nor could it reasonably be intended to make the property more valuable. Id. at 210. Indeed, he argued that excess asbestos spray could never be considered an enhancement to the property and could never be intended to make a property more valuable. Id. The court rejected Tallman’s argument:
We believe ... that the plaintiffs argument overemphasizes the intent and enhancement factors and gives too littleweight to the physical attachment of the product, which we relied on in Krull and Buttz. Applying the tests of Krull and Buttz, it is undisputed that the Monokote, in general, was intended to enhance the value of the building and, in fact, did so. It is further undisputed that the Monokote was physically attached to the real estate.
While we understand the plaintiffs argument, that overspray was not intended to enhance the building's value, this is not a workable test. The plaintiff suggests that some of the spray was “intended” to enhance the value of the property, while other spray, applied at the same time, was not because the spray adhered to different surfaces. If we were to accept that argument, we would introduce an element of uncertainty that would detract from the bright line “attachment” rule of our prior cases.
Tallman,
Finally, in
Jarnagin v. Fisher Controls Int'l, Inc.,
Significantly, the “physical attachment” of the LP regulators was not at issue in Jamagin. 6 Although the court did not specifically reiterate the physical attachment requirement emphasized in Tallman, the factual recitation clearly indicates that the LP regulators in Jamagin were attached to the property. See Id. at 35-36. The fighting issues focused upon whether the regulators were intended to be permanent additions or whether they served as a betterment to the property. See Id. at 36-37.
2. Are the turbines improvements to real property?
Harder’s assertion that the GE turbines do not constitute improvements to real property under § 614.1(11) is unavailing under
Krull
and its progeny. IJncontroverted evidence in the record reflects that the GE steam turbines are large component parts of the power plant — weighing as much as 100 tons — that have been permanently installed with concrete foundations. Moreover, the record reflects that the turbines have been integrated into the power plant structure, and are connected to other integral components by miles of complex piping and wiring. As such, the steam turbines constitute “essential, integral component[s] of an electric generating plant.” Defendant’s Exhibit 2 ¶ 12. The record is equally unequivocal that the turbines enhanced the value of the power plants, involved the expenditure of labor and money, and were designed to make the power plants more useful or valuable. Thus, the steam turbines are plainly physically attached to the real property and are both “permanent addition[s]” to the power plant
Harder argues that manufacturers of heavy equipmenf&wkey;such as the GE steam turbines — should be excluded from Iowa’s statute of repose, and directs the court’s attention to
Ritter v. Abbey-Etna Machine Co.,
The
Ritter
decision does not dictate a contrary result on two further grounds. First, although the Minnesota Court of Appeals in
Ritter
concluded that the comparable Minnesota statute, Minn.Stat. § 541.051, was
not
intended to protect manufacturers of production machinery,
Ritter,
The court holds that the GE turbines constitute an improvement to real property under Iowa Code § 614.1(11). This determination does not, however, end the analysis. The injury complained of in this case stemmed not from exposure to the steam turbines proper, but from exposure to the removable thermal insulation blankets, which were the source of the asbestos. Therefore, the court must consider whether the insulation blankets, in their own right, constitute improvements to real property sufficient to trigger Iowa Code § 614.1(11).
3. Are the insulation blankets improvements to real property?
Harder’s argument that the thermal insulation blankets do not constitute improvements under § 614.1(11) is more troubling. Here, the court is confronted with a factual scenario that has not been precisely addressed by the Iowa Supreme Court. The issue is this: Under Iowa Code § 614.1(11), do thermal insulation blankets that have previously been attached to real property constitute “improvements to real property” when, at the time of the injurious exposure, they are in an unattached state? To resolve the question, further evaluation of Krull and its progeny is necessary.
As an initial matter, the court observes that
Kmll, Tollman,
and
Jarmgin
are “physical attachment cases.” In other words, each of these cases concerned a factual scenario in which there was no dispute
GE reads
Tallman
for the proposition that the product at issue need not be physically attached at the time of exposure so long as the product was attached before exposure occurred. Presumably, this reading stems from the description in
Tallman
of the “over-spray” as “[falling] from the ceiling support wires” and “[being] removed from inside electrical boxes” at the time of exposure.
Tallman,
Similarly, GE reads
Jamagin
to stand for the proposition that permanent attachment is not required; hence, temporary detachment does not void application of the statute of repose. In
Jamagin,
the Iowa Supreme Court did hold that a “permanent addition” was one of two alternative requirements of an “improvement,” either of which would suffice; the other alternative was a “betterment of real property.”
Jarnagin,
This court’s reading of
Jamagin is
in keeping with the whole line of eases from
Krull
through
Buttz
and
Tallman:
The definition of “improvement” under Iowa Code § 614.1(11) requires “physical attachment” as the “key” requirement,
Tallman,
In this case, the undisputed facts reflect that the thermal insulation blankets were installed in the steam turbines prior to Oscar’s alleged harmful exposure to them. It is
In
Buttz,
the Iowa Supreme Court instructed that “[t]he key to the application of section 614.1(11) is the physical attachment of the asbestos material to real estate.”
Buttz,
Here, GE points out that the thermal insulation blankets were designed to be removed briefly for maintenance purposes, and then promptly reinstalled. GE also advises the court that the turbines were not meant to function without the blankets. However, GE’s assertion that the thermal insulation blankets were only “temporarily” removed runs afoul of the “bright line” attachment test by reintroducing “intent” into the analysis. In
Buttz,
the court specifically rejected the suggestion that “intent to attach” was sufficient to bring the product within the purview of the statute of repose — physical attachment at the time of exposure was necessary.
Buttz,
Tallman,
upon which GE relies, requires no different result, because in that decision, the Iowa Supreme Court reiterated the conclusion in
Buttz
that, “despite an intent by the contractor to ultimately attach a product to the structure, that was not enough to make it an improvement. The key was the actual attachment of the product.”
Tallman,
Applying the “bright-line” test of attachment formulated by the Iowa Supreme Court in
Buttz,
4. Remaining Challenges
In light of the court’s conclusion that the statute of repose does not bar Harder’s claims against GE, the court need not address Harder’s fallback assertions that Iowa Code § 614.1(11) does not apply to latent disease cases, or that § 614.1(11) should not be invoked to extinguish an inchoate cause of action.
III. CONCLUSION
The court concludes that, because the thermal insulation blankets were not attached to the GE steam turbines at the time Oscar Harder suffered his alleged injurious exposure to them, they cannot be characterized as “improvements to real property” under the statute of repose as that term has been defined by the Iowa Supreme Court. As a result, Harder’s claims against GE are not barred by Iowa Code § 614.1(11). GE’s motion for summary judgment is denied.
IT IS SO ORDERED.
Notes
. The court realizes that it could certify this question to the Iowa Supreme Court. Nevertheless, the court declines to do so. At oral arguments, the parties declined the court's invitation to certify this question. In light of the parties' position on certification and the fact that trial is only three months away, the court will not certify the issue sua sponte, not least because the court finds adequate guidance is supplied by four recent Iowa Supreme Court decisions.
. Oscar Harder died on January 26, 1994. Marion Harder, as executor of the estate of Oscar Harder, was then substituted as a party plaintiff.
. Counsel for both parties are to be commended for the quality of their presentations in this matter. The court found the briefs to be exceptionally thorough and well-written, and was equally impressed by the insightful comments offered by counsel at oral argument.
. IPS is now known as Midwest Resources.
. This case, before the court on diversity jurisdiction, is controlled by Iowa law.
See Frideres v. Schiltz,
. Although Jarnagin did attempt to distinguish the LP regulators from other improvements on the ground that they were affixed outside the home, he did not take issue with the fact that the regulators were attached to the property. See Id. at 36.