*1 person A responsible is for the actions you unless find beyond a reasonable when, person, another either before doubt that the Defendant knowingly or or during crime, the commission of a he intentionally participated in some con- aids, knowingly induces, or causes the duct of an affirmative nature. person
other to commit a crime. To aid Record at 1838. These two instructions is to knowingly support, help, or assist were a correct statement of law and did in the commission of a crime. not mislead the jury. The trial court did In order to be held responsible for the not err in the it gave instructions to the another, jury. actions of he need only have knowledge that he is helping the com- The defendant's convictions are af- mission of a crime. He does not have to firmed. personally participate in the crime nor does he have to present when the SHEPARD, C.J., SULLIVAN, crime is committed. BOEHM, RUCKER, JJ., concur. Proof of the defendant's failure to op- pose the crime, commission of a compan-
ionship person with the committing the
offense, and conduct before and after may offense be considered in deter-
mining whether aiding may be inferred.
Record at 182. Even though this in struction states that the defendant must HARRIS, Willie L. Jr., al., et have "knowledge that he is helping in the Appellants-Plaintiffs, crime," commission of a the defendant contends that this instruction "improperly the jury's
focus[ed] attention upon [the S., INC., A.C. & North American Refrac- perceived defendant's] acquiescence to Co., tories Group, Mallinckrodt Inc., the crimes being committed others." Engineering Combustion Co., Kaiser Br. for Appellant at 28. The jury must Aluminum & Corp., Chemical WTI be instructed that accomplice liability re Holdings, Inc., Rust Rapid-American quires proof that the defendant engaged Corp., Co., Weil-McLain W.R. Grace in voluntary conduct in concert with his Co-Conn, Appellees-Defendants. accomplice. State, Small v. No. 45A03-0004-CV-144. (Ind.1988). Final Instruction 15D made explicit: this Court of Appeals of Indiana. presence mere of a Defendant Jan.
where a being committed, crime is even coupled with knowledge by the Defen-
dant that a erime being committed, or
the mere acquiescence by a Defendant others, criminal conduct of even guilty knowledge, is not sufficient aiding, establish inducing, or causing
a crime.
You must not convict the Defendant of
aiding, inducing, causing an offense *2 & Berger James Berger,
Donald J. Bend, IN, Robert G. Gammage, South Eves, Pablo A. Penney, R. McCoy, Mark Offices, Ltd., Chica- Law Vaughan Caseino Appellant. IL, Attorneys for go, George Ruth- Laudig Sipes, W. Russell IN, Attorney Indianapolis, Sipes, & erford Amicus Curiae. Dillman, M. Lisa Mehringer, E. Susan IN, David Indianapolis, Wagner, Lewis & Kramer, Buoscio, Merrili- Pera, Pera & W. Shuftan, M. Kenneth ville, IN, L. Robert Wildman, Har- Tate, L. Gorenberg, Carol IL, Dixon, Chicago, James rold, Allen & IN, Ac- Amber Indianapolis, Boyers, M. hilles, IN, Chicago, Attorneys for A.C. & favor of the following corporations: A.C. & S. and North American Refractories. ("A.C. S., S."), Inc. North American Refractories Company ("NARCO"), Mal- Lee, Christopher D. Barsumian, Todd C. linckrodt Group, Inc. ("Mallinckrodt"), Kahn, Dees, Kahn, LLP, Donovan & Ev- *3 ("Combus Combustion Engineering Co. ansville, IN, Atorneys for Mallinckrodt tion"), Kaiser Aluminum & Chemical Corp. Group, Inc. and Combustion Engineering ("Kaiser"), WTI Rust Holdings, Inc. Company. ("WTI"), Rapid-American Corp. ("Rapid, Robert E. Haley, Harrold, Wildman Al- American"), ("Weil- Weil-MecLain Co. Dixon, len & Chicago, IL, Attorney for McLain"), and W.R. Grace & Co Conn. Kaiser Aluminum & Chemical Corp. ("W.R. Grace")1 Conover, Garrett V. Kopka, Landau & We reverse and remand. Pinkus, Point, IN, Crown Attorney for WTI Rust Holdings. ISSUES Douglas King, B. Wooden McLaughlin Sterner, Whether the Nopperts Indianapolis, IN, are collater- Attorney for ally
Rapid-American estopped from Corp. relitigating the statute of repose issue Jonathan Lively, M. Jason Kennedy, L. remaining defendants after this Segal McCambridge Singer, & Mahoney, upheld court the trial court's entry Ltd., IL, Chicago, Attorneys for Weil- of summary judgment in favor of McClain. ' Sears ("Sears") Roebuck & Co. Dinsmore, Mark J. IN, Indianapolis, At- against the Nopperts. torney for W.R. Grace & Co-Conn. 2. Whether the statute repose bars Raymond Modesitt, H. Ryan D. Johan- the plaintiffs' claims. ningsmeier, Wilkinson, Goeller, Modesitt, Wilkinson & Drummy, Haute, IN, Terre FACTS Attorneys for Prox Company, Inc.
AC. & S. is a corporation Delaware OPINION "primarily engaged in the installation of (Harris thermal insulation materials." R. Judge. DARDEN, 184). NARCO is an Ohio corporation in STATEMENTOFPTHECASE the "business of manufacturing, distribut- In this consolidated appeal, Willie J. ing and selling refractory products...." Harris ("Harris"), Jr. Serna, (Harris 47). Esther indi R. Mallinckrodt is a Dela- vidually and as Special Administrator of corporation ware that has manufactured ("the the Estate of Louis Sernas"), Serna and shipped products "that may have con- Freda Noppert, individually and Special (Mallinckrodt tained asbestos...." Supp. Administrator of 78). the Estate of Robert R. Combustion is a Delaware corpo- ("the Nopperts"), and Caroline engaged in ration the business of manufac- Gottschalk, individually Special and as Ad turing and shipping refractory products. ministrator to the Estate of John Gott- Kaiser is a corporation Delaware also en- ("the Gottschalks)" schalk appeal four gaged trial in refractory business. WTI is judgments granting summary judg corporation, Delaware and Rapid Ameri- ment concerning the statute of in can and Weil-MecLain corporations are do- April 1. On Chapter 11 bankruptcy protection. W.R. Grace entered into asbestos-containing to an exposed a he was Grace W.R. in Indiana. ing business de- by either supplied specifically corporation. Connecticut fendant. Facts: Harris filed his Harris laborer, patch- oven aas worked Harris to A.C. responses evidence designated Inland Steel er, leader group motions for and NARCO's & S8. retire- until his Chicago East there was argued that Harris judgment. main- involved work 1998. His ment concerning fact material issue of genuine openings, sealing by ovens taining coke to asbestos-con- exposed he was whether lining, brick ovens' repairing the defen- supplied taining the door joints between "the spraying A.C. & S. *4 November dants. On cement [a] work with oven brick jambs and judg- for motion withdrew 104). (Harris R. ..." spray gun. exposure. on ment based 1996, Henry Anderson 15, Dr. On June 6, 1999, court the trial December On having asbestosis2 as Harris diagnosed defendants' took the hearing and held 16, 1996, filed his Harris September On ad- under summary judgment for motions Court County Superior in Lake complaint 1999, 17, the trial On December visement. defendants, including numerous NARCO's and A.C. & S8. his Among and NARCO. & S8. AC. judgment because motions liability, strict conspiracy, claims of "more than filed complaint was Harris' his as alleged that also Harris negligence, any product delivery of after the his ex by caused proximately was bestosis asbestos," and contained could have which asbestos fibers harmful and/or posure nor NARCO & S8. A.C. neither because knowingly asbestosis-containing 658). (Harris R. asbestos. mined and sold manufactured, sold processed, designed, Facts: Serna NARCO. S. and by AC. & distributed mason, laborer, aas worked Louis Serna 1998, 24, December On from 1942 Inland Steel custodian dead- proposed file parties ordered laborer, Serna shov- Mr. "As a to 1985. 80, September On trial dates. lines and the flues swept debris eled for sum- 1999, its motion filed NARCO hand by passed bricks Hearth and Open on judgment based mary bricklayers who wheelbarrow October likewise on & S. did repose. A.C. of the parts and other on the roof worked argued 5, Both defendants 30). (Serna ma- As a R. Hearth." Open it because is time barred complaint Harris' furnaces son, and maintained repaired he (10) year statute the ten filed outside to make steel. used and ovens argued they repose period. 18, 1998, Fergu K. Dr. Mark mined both defendant neither because having malignant Mr. Serna diagnosed asbestos, son Harris' com- commercial and sold were no The Sernas mes othelioma.3 under the two- brought could not be plaint 1998. On April diagnosis tified of Final- asbestos. year exeeption period filed their the Sernas that December asserted NARCO ly, & S. and A.C. Court County Superior in Lake complaint any evidence present Harris failed tumor, either "primary ais 3. Mesothelioma as a intersti- "[dliffuse defined 2. Asbestosis is or- various malignant," that lines benign or prolonged to the due pulmonary tial fibrosis Mrpicat Gourp DicrIONaRY Gourp body. gans of the Menicat dust." inhalation of Dictionary ed.1979). (4th ed.1979). (4th defendants, numerous including Superior Court against numerous defen- Mallinckrodt, Combustion, Kaiser, dants, NAR- Sears, including S., A.C. & Rapid- CO, and Among WTI. their claims of con- American, and Weil-Meclain. Among spiracy, strict liability, and negligence, the their claims of negligence, strict lability, alleged Sernas that Mr. Serna's condition and loss consortium, the Nopperts ar- proximately by caused unreasonably gued that Mr. Noppert's asbestosis was dangerous manufactured, asbestos fibers proximately caused by his exposure to the supplied or installed the defendants. asbestos-containing products sold by the defendants. Subsequently, on January
On different dates throughout 1999, 1996, Dr. Michael Lykens G. diagnosed Combustion, Kaiser, Mallinckrodt, and Mr. with malignant mesothelio- WTI all filed motions for summary judg- ma; Mr. Noppert died on May ment based on product identification and the statute of repose. Mr. Serna subse- On May 1997, A.C. & S8.filed its quently died 1999. On motion for summary judgment and the December the Sernas filed their trial court set the matter for hearing on consolidated response to the defendants' July 1997. The trial court argu- heard motions for summary judgment, and the ments and took the matter under advise- *5 trial court held a hearing 18, on January ment. September 11, On 1997, Sears filed its 10, On 2000, March the trial de- court motion for summary judgment arguing nied the defendants' motions for summary that the statute of limitation then codified judgment based on identification. § at Ind.Code 38-1-1.5-5 Nop-perts' barred the However, the trial granted court the de- m.4 The trial court granted clai fendants' motions for summary judgment Sears' motion on 3, October 1997. The because Serna's complaint was not filed Nopperts filed a motion to correct errors ten-year the repose period and on 16, 1997, and, December days later, two there was no evidence that the defendants the trial court the Nopperts' mo mined and sold asbestos. The ap- Sernas _- tion to correct errors and vacated its order peal. granting Sears' motion for summary judg Noppert Facts: ment. appealed Sears to this court argu ing that Nopperts'
From the 1980, 1959 until "motion to Robert correct errors was erroneously granted worked as a plumber and because pipe-fitter for the motion untimely various was employers filed and and because exposed was to as- the Nopperts did not bestos have a during this period. meritorious During his work, defense to the summary Mr. Noppert recalled mo seeing asbes- tion." air, tos in Sears the Roebuck and knocking Co. v. Noppert, it off pipes, mixing 1065, mud, N.E.2d asbestos being (Ind.Ct.App.1999), and around insulators denied,. trans. using asbestos. In February 1991, Dr. Alvin J. Schon- February 17, 1999, On this court ren diagnosed field Mr. Noppert as having as- dered an opinion reversing the trial court's 25, bestosis. April 1995, On the Nopperts granting order the Nopperts' motion to filed their complaint in the Vigo County correct errors and remanded the case to provision 4. This is now known as the statute 3-1. and is codified at Ind.Code 34-20- with out being whited air as the scribe[d] to rein instructions trial would work he when powder of Sears. summary judgment state 268). (Gottschalk R. Nopperts' case, held we the material." around untimely errors correct
motion 1996, 11, Dr. Jacob- William On Nop- found filed. Mr. diagnosed and biopsy a performed son defense a meritorious have not perts did mesotheli- malignant having Gottschalk the statuto fall into not did Sears because on October died oma, Mr. Gottschalk and miner being both ry exception 1997, 2, the Gott- January 22, On excep The asbestos. commercial seller of Vigo complaint filed their schalks two Nopperts given have would tion numerous Court County Superior file diagnosis date McLain defendants, including Weil complaint.5 their of strict claims Among their Grace. W.R. 1999, court set 22, the trial April On negligence, conspiracy, liability, Dur- 25, 1999. for June hearing pre-trial that Mr. Gottschalk's alleged Gottschalks Rapid- 1999, Weil-McLain ing June caused proximately mesothelioma judg- summary motions filed American asbestos-containing prod- his repose. statute upon ment based defendants. by the provided ucts court continued the trial On June and the indefinitely, mo hearing filed the defendants pre-trial In June the defen- response their filed tions Nopperts judgment. repose. On motions for
dants'
response.
filed their
the Gottschalks
trial court
September
hearing on
the matter
set
after
proceedings
stay of
lifted
2, 1999.6
December
case,
in the Sears
denied
transfer was
*6
all the
hearing on
and scheduled
supra,
reasons
aforementioned
the same
For
De-
for
summary judgment
motions
granted
Facts,
trial court
trial court found
The
1999.
cember
motions
Grace's
and W.R.
Weil-McLain
and
miners
not both
were
the defendants
Gott-
asbestos,
and
of commercial
sellers
repose.
of
schalks
any
to show
"failed
Nopperts
that the defendants
found
The
within
Defendant's
any
of
of com-
and sellers
miners
not both
were
(Nop-
(10)
repose."
year statute
the ten
asbestos,
the Gottschalks
mercial
was
48). Summary judgment
pert R.
the ten
complaint
their
not filed
had
S., Weil-
of A.C.
granted
The
(10)
period.
year
McLain,
Rapid-American,
appealed.
Gottschalks
appealed.
have
Nopperts
Facts:
Appellate
Facts:
Gottschalk
all the
represents
firm
The same law
a construction
John Gottschalk
moved for
and has
in these cases
plaintiffs
He worked
to 1996.
worker from
Appellate
Ind.
under former
consolidation
next
asbestos,
also worked
29, 2000, we
5(B).7
September
Rule
"He de-
mixed asbestos.
workers who
Su-
Indiana
January
Effective
7.
§ 34-20-3-2.
Ind.Code
Rules of
Indiana
preme Court recodified
governing
rule
The
Appellate Procedure.
hearing
which the
the same
6. This was
codi-
appeal is now
cases on
consolidation
summary judgment were
Noppert motions
38(B).
Appellate Rule
at Ind.
fied
heard.
granted the motion and consolidated these
the Nopperts' motion to vacate on Novem-
cases under the instant cause
ber
1997. The Nopperts then filed a
number.
motion to correct errors on
December
DECISION
1997, which the trial
granted
on De-
Collateral Estoppel
cember
vacating
grant
of sum-
mary judgment on behalf of Sears. Sears
Nopperts
argue that the trial court
appealed, and this court found that
erroneously granted
S.,
A.C. &
Rapid,
trial court had erroncously granted the
American, and Weil-MecLain's motions for
Nopperts' motion to correct errors because
summary judgment based on the statute of
it was
filed;
not timely
and that
Nop-
repose.
addition,
Weil-MecLain argues
perts had not sought to appeal the grant-
that our decision in
705 N.E.2d
Sears
ing of summary judgment by filing a time-
1065, should collaterally estop the Nop-
ly notice of appeal.
perts from re-litigating the statute of re-
pose
issue
this appeal.
However, applying collateral estoppel to
the facts in the
bar,
case at
we find that
"The doctrine of collateral estop-
the Nopperts have not had a full and fair
pel bars the re-litigation in a subsequent
opportunity to litigate against the remain
action of a fact or
adjudicated
issue
in a
ing defendants the issue of whether the
prior
City
lawsuit."
Davis,
Anderson v.
statute of repose bars
their
Habili
366 (Ind.Ct.App.2001)
suit,
ty
The record reveals that summary
added).
(emphasis
"The primary consider
primarily
Sears
ation in the use of [collateral estoppel] is
on the issues of timeliness of the Nopperts'
whether
party
against whom the for
pleadings and whether Sears both mined
adjudication
mer
is asserted had 'a full and
and sold
products.
We find that
fair opportunity to litigate the issue and
it would be unfair under the cireumstances
whether it would be otherwise unfair un
to collaterally estop the Nopperts from
der the cireumstances'
permit
the use of
litigating the statute of repose issue
[collateral estoppel] in the subsequent ac
the other defendants when that
tion." Mendenhall
City
Indianapolis
issue was not addressed in Sears
Fur
N. E.2d
1225 (Ind.Ct.App.
thermore, our decision in Sears included a
1999) (quoting Sullivan v. American Casu
*7
finding that the statutory exeeption to the
alty
Pa.,
Co. Reading,
605 N.E.2d
of
statute of repose applies only to those
(Ind.1992)).
entities who both mined and sold commer
Sears,
In
supra, Sears had filed its
cial
§
asbestos.
I.C.
84-20-3-2. Howev
motion for summary judgment
er,
on Septem
more recently, we have decided a line
11, 1997, and,
ber
(30)
less than thirty
days
of cases
disagree
that
with that finding.
later, the
granted
trial court
Sears'
motion.
ACandS,
Inc.,
See Black v.
not genuine showing the remain- that facts designate issue repose of statute Id. "When fact exists. material of ing defendants. issue for sum a motion makes defendant the Repose 2. Statute of by materials supported mary judgment the may that argue plaintiff the appellants The T.R. by contemplated summary erroneously must set but pleadings, [their] on not rest they Specifically, the defendants. favor of controverting the claim facts specific forth ten-year statute that the argue using supporting judgment, summary for actions related to asbestos apply not does rule." Co by the contemplated materials itself manifest may not injury the because Service, 654 N.E.2d Vending Pride v. len they ar- years. many more trans. (Ind.Ct.App.1995), 1159, 1162-1163 pre- of action cause barring their that gue denied. the having access them vents must liability actions product general, I, § 12 of by Art. guaranteed as courts after years two within brought class Constitution, creates a be and it Indiana years within or privileges accrues additional of action that have cause litigants I, Art product delivery of prohibited as immunities after ap- However, if the Constitution. the Indiana or consumer. § 23 of user initial (8) proper- the trial eight that least counter at pellees acerues of action cause repose barred (10) after ly years found than ten less years but they were because claims appellants' may delivery, the action initial statutory ten-year brought within not (2) two any time within commenced limit. accrues. of action cause after § 84-20-8-1. I.C. summary purpose
"The there which about litigation to terminate of re to the exception An may which dispute and no factual can be actions. asbestos-related pose Kott exists law." matter of as a be determined 34-20-3-2(b) provides 67O § Bridgestone/Firestone, L.C. Specifically, lowski liability action de trans. (Ind.Ct.App.1996), N.E.2d disease, or disability, injury, standard personal the same apply We nied. to asbestos a motion reviewing resulting from court when death trial any years after we resolve two judgment, commenced must be she inferences he or knows that person to facts injured doubts as judgment. Black, opposing disease. party an asbestos-related has *8 Additionally, "[this Id. liability only product applies exception] evidence, mov the designating After mined and who 'persons actions making a "of the burden ing party bears ....." I.C. commercial sold asbestos gen are no there showing that facie prima added). 34-20-3-2(d) It (emphasis § the and that material fact uine issues upon phrase of this interpretation matter as a movant is entitled be decided. controversy shall this which Skaggs, 693 N.E.2d Luider v. of law." (Ind.Ct.App.1999), in which 1065 N.E.2d (Ind.Ct.App.1999), Corp. 707 N.E.2d dicta, exception in only considered Sears, Roebuck, had Noppert, Co. v. Black, we noted that supreme our 154. This line of reasoning is followed in court in Canada, Covalt v. Carey Inc., 543 Parks and Jurich. (Ind.1989)
N.E.2d 382
answered a certified
question regarding
plaintiff's
a
ability to
As the appellees need not have
bring suit
years
within two
after discover- both mined and sold commercial asbestos,
disease,
ing a
notwithstanding that
the we find that
the trial court herein has
discovery was made more than
years
erroneously granted summary judgment
after the
last
based on the statute of repose. Willie
caused the disease. The court answered Harris was diagnosed with asbestosis on
in the affirmative noting that one can be
June
1996 and filed his complaint on
injured from prolonged exposure to newly
16, 1996,
June
two-year
limita
milled
just
as one can
injured
tion. Louis Serna was diagnosed as hav
from asbestos which has been on the mar-
ing mesothelioma on
March
1998 and
ket for ten years
Further,
or more.
the Sernas filed their complaint on Decem
court also noted its concern was not with
ber
also within the
allowed.
time
the introduction of product
into the mar- Robert Noppert was initially diagnosed
ketplace, but with exposure to a hazardous with
asbestosis
February 1991 and the
substance which causes disease.
Nopperts filed their complaint
on April
This court's attention in Black then
1995. Noppert was later diagnosed with
turned to determining
legislature's
in-
mesothelioma
on January
1996 and
tent
2(d).
in enacting section
We found
subsequently
amended his
complaint.
that reviewing courts have the authority to While more than
two
elapsed
had
make minor substitutions of words in or- between the Nopperts'
initial asbestosis
der
give
effect to legislative intent. See diagnosis and the filing of his initial com
Dague v. Piper
Corp., 275 Ind.
Aircraft
plaint, we find that his subsequent diagno
(1981).
we al- 1942 and between beginning grounds). stitutional the prod- no evidence there is ternatively remanded. Reversed old when years more than ucts were to exposed allegedly were plaintiffs J., NAJAM, concurs. Thus, products. in the contained asbestos with in result BARNES, J., concurs the statute of application hold that I would opinion. separate would violate instance in this repose of Consti- Indiana I, 12 of the Article Section in result concurring BARNES, Judge, in reverse tution opinion. separate on that basis. the defendants favor of reached result I concur of reversal namely, the majority, the defendants of of statute liability act product
upon necessary to it is I do believe
repose. of the statute constitutionality
address case, as we in this applied as repose
of Packing Appellant-Defendant, v. Anchor in Jurich recently did John INGLE, (Ind.Ct.App. al., 759 N.E.2d etCo. exception to 2001). There, held we Indiana, Appellee-Plaintiff. of STATE "per actions of as sold commercial mined sons who 22A01-0109-CR-340. No. sell apply to to intended not bestos" of Indiana. Appeals of Court but products, asbestos-containing ers asbestos processed or of "raw" only sellers 4, 2002. products. other into incorporated is May Transfer denied in Here, appears it Op., p. 1070-71. did defendants particular these Jurich only but asbestos" sell "commercial
not hence, the products;
asbestos-containing not repose was
exception to them. apply
intended to hold
Nevertheless, on to went of the statute application
Jwrich I, Article Section violate
repose would in cases Constitution the Indiana injured by an asbes- is plaintiff
"where by exposure either
tos-containing product the enactment fibers before asbestos act, 1978], liability and/or [product no evidence
where there the time old at than ten more fibers exposed plaintiff was Op., p. product."
contained in- in this the case appears
That in- allegedly plaintiffs The various
stance.
