*1 construction majority's restrictive the demonstrate not did evidence the section, the application of and sold this mined of both of ap- repose of statute commercial fall claims Blacks' 12 and Section both Section violates ply. Since claims stat- ten-year general the Indiana Constitution. Article of 28 of in Section AlliedSignal, ute of are detailed reasons My were claims Blacks' of period of after J., (Dickson, dissenting). for the judgment experi- unless J., RUCKER, concurs. an asbestos-related Black of re- statute
disease to know no reason had Black yet Mr.
pose, the ten- until
of direct We
year possibility this examine
trial court remand. Serna, Jr., HARRIS, L. Willie individually special adminis- as and Serna, Louis the estate of of trator vacating individually 58(A),thereby as and of of the Court the estate of of special administrator court the trial cate the Gott- Noppert, and Caroline consistent proceedings further special remand for ad- schalk, this John Gott- the estate of ministrator (Plaintiffs below), schalk, Appellants SHEPARD, C.J., and Refrac- INC., S., North &A.C. dissents Com- tories, Mallinckrodt J., concurs. in which opinion, RUCKER, Alu- Co., Kaiser Engineering bustion DICKSON, Justice, dissenting. Rust WTI Chemical minum & mani- does not Inc., Rapid-American Holdings, until ten itself fest & Co- Grace W.R. Weil-Mclain the General I believe exposure. after below). (Defendants Conn, Appellees compassion, reasons Assembly, for No. 45S03-0303-CV-125. Indiana enacted all asbes- relief for § 34-20-3-2 Indiana. Supreme Court victims tos Lia- Product in the Indiana 2003. Act. Consistent bility phrase "persons I believe who means and sold" who sold" includes asbestos"
"commercial in commer- but also that, un- believe I further *2 Lee,
Christopher D. Barsumian, Todd C. Evansville, IN, Attorneys for Combustion Engineering, Inc. and Mallinekrodt Inc.
Susan E. Mehringer, Dillman, Lisa M. IN, Indianapolis, Attorneys A.C.&S., for Inc. Pera, Merrillville,
David IN, Boy- James ers, IN, Indianapolis, Achilles, Amber Chi- IL, cago, Attorneys for North American Refractories.
Raymond Modesitt, Haute, IN, Terre Ryan Johanningsmeier, Indianapolis, IN, Attorneys for Prox Inc.
Jason Kennedy, Chicago, IL, Attorney for Weil-MeLain Co.
ON PETITION TO TRANSFER SULLIVAN, Justice. 18, 2000,
On October the Indiana Court Appeals consolidated appeals of four plaintiffs: Jr.; Willie J. Harris Serna, individually Special and as Adminis- trator of the Serna; Estate of Louis individually and Special Ad- ministrator of the Estate of Nop- pert; and Special
and as Administrator to the Estate of John Gottschalk. The facts of each case will be discussed separately. Harris, Jr.,
Willie J. at Inland Steel from 1960 until he retired in 1998. During employment, his Mr. Harris exposed to asbestos. On June 1996, Mr. Harris was diagnosed with as- Donald J. Berger, Bend, IN, South Rob- bestosis. September 16, 1996, On ert G. McCoy, Mark R. Penney, Chicago, Harris filed alleging, among IL, Attorneys Appellants. for that his proxi- asbestosis was mately
W. Russell Sipes, Indianapolis, IN, his At- torney for Indiana Trial Lawyers As- and/or Curige. sociation, Attorney during his employment. Amicus Ehrhardt, Thomas S. Louis Serna was employed at Inland Garrett V. Con- over, Point, IN, Crown Steel from 1942 to 1985. During the Attorney for WTI Rust Holdings, Inc. course of Mr. Serna was repose; we will refer On to asbestos. 1." The second as "Section this statute Mr. Serna 84-20-3-2, specifically statute, di- notified and was claims; December to certain asbestos April 1998.
agnosis
*3
wife,
Ser-
2."
to this section
"Section
and his
refer
1998,
we will
Serna
Mr.
in
among
(We
other
alleging,
prior
that
to recodification
na,
complaint
note
filed a
was
1998,
appeared
Mr.
2
at Ind.
that
Serna's
1 and
things,
Sections
dan-
unreasonably
38-1-1.5-5,
by
§
re-
caused
proximately
§
38-1-1.5-5
manufactured, sup-
gerous
spectively.)
Defendants.
by the
installed
plied, or
cases, the Defendants
of these
In each
as a
Noppert was
applies
2
to a
only
that Section
argue
em-
for various
pipe-fitter
plumber
they
and that
of defendants
limited class
During this
to 1980.
1959
from
ployers
such,
that class. As
fall within
to ashes-
Noppert was
Mr.
period,
Plaintiffs
that
contend
Defendants
1991,
was
Noppert
Mr.
February
In
tos.
them under
against
proceed
must
25,
April
asbestosis.
with
diagnosed
Plain-
1. The
restrictive Section
more time
wife, Freda
and his
1995,
Noppert
Mr.
they
if
are not
even
respond that
tiffs
among
alleging,
a
respec-
proceed against
permitted to
asbestosis
Noppert's
that Mr.
2,
1
under Section
tive Defendants
exposure
by his
caused
proximately
was
I,
§
art.
under both
is unconstitutional
by
sold
I,
Indiana Constitu-
§ 28 of the
and art.
January
in
Subsequently,
Defendants.
tion.
ma-
Noppert
was
Mr.
cases,
court,
in each of
trial
The
Noppert died
Mr.
mesothelioma.
lignant
2
that Section
the Defendants
agreed
12, 1997.
May
and that the Section
to them
apply
a construction
Gottschalk
John
prior to the
expired
1 statute of
During the
to 1996.
1957
worker
claims.
the Plaintiffs'
acerual of
he both worked
of his
course
appeal,
In the consolidated
and worked
personally
2, the
Appeals found
mixed asbes-
to others who
proximity
close
have both
need not
11, 1996, Mr. Gottschalk
tos. On
Harris v. A.C.
asbestos.
sold commercial
mesothelio-
diagnosed (Ind.Ct.App.
S., Inc.,
383
N.E.2d
&
22, 1996. On
died on October
ma. He
2002).
reversed
It
then
January
that Section
and found
award
be-
wife,
complaint on
filed a
Gottschalk's
in each
applied
alleging,
her husband
herself and
half of
cases.
things, that
Gottschalk's
among other
AlliedSignal
today in
hold
death,
ultimate
(Ind.2003),
Leg
to as-
by
proximately
subject to
consciously intended
products provided
bestos-containing
islature
produce
those entities
only
Defendants.
sell
those who
leaving
while
Assembly has en-
The Indiana
products
asbestos-containing
limit the
statutes
acted two
also hold
1. We
of Section
ambit
prod-
can file
individuals
which
time within
violate either
does
statutory scheme
statutes,
of these
One
liability claims.
uct
I,
28, except in the
§
I, § 12 or art.
art.
34-20-83-1,
applies
generally
§
a
where
limited cireumstance
claims and establishes
experienced physician
diag-
could have
34-20-38-2to
relief
all
asbes-
plaintiff
nosed the
with an asbestos-related
tos victims from the
ten-year stat-
disease within the
in the Indiana Product Lia-
ute
potential plaintiff
bility Act. Consistent
with this
had no
reason
know of the
I
phrase
believe that the
"persons
condition until the
period had ex- who mined and
sold" means
pired.
who sold" and that
"commercial asbestos"
includes not
here,
reasoning
Our
that case
raw asbestos but also asbestos in commer-
result;
and we reach the same
since the
that,
I further believe
un
evidence did
not demonstrate that
majority's
restrictive construction
*4
the Defendants both mined and sold com-
section, application
of the
mercial
Section 2
apply.
did not
statute of
Since the Plaintiffs' claims do not fall un-
claims violates both
and Section
ten-year statute
23 of Article 1 of the Indiana Constitution.
Section 1
My reasons are detailed in AlliedSignal,
that the Plaintiffs' claims were filed after
ness or disease within the ten-year statute potential plaintiff had no
reason to know of the diagnosable condi-
tion until
We direct the trial court to examine this
possibility on remand. ALLIEDSIGNAL, INC., ACandS, Inc., Co., A.W. Corp., Ajax Chesterton Abex Magnethermic Corp., Amchem Prod 58(A), thereby vacating the Inc., ucts Furnace, Gas Armstrong cate the judgment of the trial court and Industries, Inc., World Chicago Co., Chrysler Corp., Firebrick remand for further proceedings consistent Equipment Co., Clark Corhart Refrac tories, Dap, Inc., Industries, Dresser SHEPARD, C.J., Corp., Fargo Eaton Co., Insulation Inc., Flexitallic, Inc., Co., Ford Motor General Motors General Re dissents with Co., fractories Great American Peter opinion, which, RUCKER, J., concurs. bilt, Inc., Guard Line Hercules Chemi DICKSON, Justice, dissenting. Co., Inc., cal Gasket, Hoosier Crane, Inc., does not mani- Supply McMaster-Carr fest itself until ten Co., Metropolitan Life Insurance after exposure. I believe that the International, Navistar Owens-Corn Assembly, for reasons of compassion, ing Fiberglas Corp., Owens-Illinois, enacted Indiana Pecora Ransome-Cush