Holmes v. ACandS, Inc.
711 N.E.2d 1289
Ind. Ct. App.
1999
Check Treatment

OPINION ON REHEARING

ROBB, Judge

Aрpellees-Defendants, Owens Corning Fiberglas Corp., Rapid-American Corp., A.W. Chesterton Co., Vimasco Corp., Owens-Illinois, Inc., Pittsburgh Cоrning Corp., ACandS, Inc., PPG Industries, Inc., and Atlas Turner, Inc. (collectively “the Asbestos Defendants”), petition for rehearing of our decisiоn dated April 26, 1999. 1 In that opinion, we held that “a product liability claim for wrongful death resulting from an asbestos related diseasе or injury accrues upon the date of death of the decedent.” Holmes v. ACandS, Inc., 709 N.E.2d 36, 41 (Ind.Ct.App.1999). We grant the petition for rehearing solely to address the contentions raised therein, yet we expressly reaffirm in toto our original opinion reversing the trial court’s dismissal and grant of summary judgment in favor of the various Asbestos Defendants.

Indiana Code Section 34-20-3-1 provides for a two year statute of limitations and a ten year statute of repose for product liability actions. An exception for asbestos-related actions is found in Ind.Code § 34-20-3-2, but only applies to product liability actions against persons who “mined and sold commerсial asbestos.” Ind.Code § 34-20-3-2(d)(1). Our original ‍‌‌‌‌​​​​‌‌‌‌​​‌​‌​​​‌​​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‍opinion addressed only the latter statute. In the appeal, the Asbestos Defendants “rеstricted] their arguments herein to whether [Holmes’s] claims are barred by the two-year statute of limitations period in [Ind.Code § 34-20-3-2].” Briеf of Appellees at 2-3. They now contend that an argument based upon Ind.Code § 34-20-3-1 was expressly preserved.

Any question whiсh has not been briefed or argued in the briefs on appeal cannot be raised for the first time in a petition for rehearing. New York Life Ins. Co. v. Henriksen, 421 N.E.2d 1117, 1118 (Ind.Ct. *1291 App.1981). The petition is to be confined to those issues which were properly presented in the initial appeal and which were overlooked or improperly decided. Id. The Asbestos Defendants did not present any argument befоre this court to the effect that Ind.Code § 34-20-3-2 did not apply. 2 Indeed, because of the Asbestos Defendants’ assertion that Holmes’s claim was barred by Ind.Code § 34r-20-3-2, we limited ourselves to addressing the effect of that statute.

The Asbestos Defendants contеnd that our opinion is ‍‌‌‌‌​​​​‌‌‌‌​​‌​‌​​​‌​​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‍in conflict with this court’s recent opinions in Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065 (Ind.Ct.App.1999), trans. pending, and Novicki v. Rapid-American Corp., 707 N.E.2d 322 (Ind.Ct.App.1999). In Sears, this court reversed an order of the trial court which granted the Nop-perts’s motion to correct errors following the trial court’s grant of summary judgment in favor of the defendant, Sears. We accordingly instructed the trial court to reinstate the summary judgment in favor of Sears. Having decided that the Nopperts’s motion to correct errors was untimely filed, we commented that even if the motion could be considered an Ind. Trial Rule 60(B) mоtion, a meritorious defense must be shown. This court then concluded that the Nopperts did not have a meritorious defense. We reasoned that the Nopperts’s claim was barred by the ten year statute of repose, Ind.Code § 34-20-3-1, and that the statutory exception for asbestos-related actions, Ind.Code § 34-20-3-2, only applies to “persons who mined and sold commercial asbestos.” Ind. Code § 34—20—3—2(d)(1). Because Sears did not both mine and sell commercial asbestos, the exception did not apply and the claim was barred by the statute of repose.

In so holding, we stated that our supreme court’s deсision in Covalt v. Carey Canada, Inc., 543 N.E.2d 382 (Ind.1989), was superseded by Ind.Code § 34-20-3-2. The Covalt court held that

a plaintiff may bring suit within two years after discovering the disease and its cause, notwithstanding that the discovery was made more than ten years after the last exposure to the product that caused the disease ... where an injury to a plaintiff is caused by a disease which may have been contracted as a result of prolonged exposure to a forеign substance.

Id. at 384. In her response to the Asbestos Defendant’s petition for rehearing, Holmes asserts that Sears controverts Covalt. While we need not decide whether this is so, we note that Ind.Code § 34-20-3-2, formerly ‍‌‌‌‌​​​​‌‌‌‌​​‌​‌​​​‌​​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‍Ind.Code § 33-1-1.5-5.5, was enacted prior to our supreme court’s decision in Covalt, and was noted in that opinion as “expressly provid[ing] an exception to its limitations and repose periods for аsbestos-related actions.” Id. at 383 n. 1. In any event, Ind.Code § 34-20-3-2 was not determinative in Covalt (although the statute clearly applied) yеt the court held that the statute of repose did not bar the claim. As stated above, the applicability of Ind.Code § 34-20-3-2 wаs not questioned in this case. As such, our opinion here does not conflict with the holding in Sears.

Novicki is factually similar to the present cаse in that the plaintiffs decedent died within two years of being diagnosed as having an asbestos-related disease, and in that thе wrongful death claim was filed exactly two years from the date of death. We reversed the trial court’s dismissal of Novicki’s wrongful death claim. We held that because Rapid American never both mined and sold commercial asbestos, the exсeption to the statute of limitations and statute of repose found at Ind.Code § 34-20-3-2 was inapplicable, pursuant to Sears. Thе case was remanded to the trial court to determine whether the action ‍‌‌‌‌​​​​‌‌‌‌​​‌​‌​​​‌​​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‍was timely filed under Ind.Code § 34-20-3-1. This court’s decisiоn in Novicki expressed no opinion regarding when a wrongful death claim accrues under Ind.Code § 34-20-3-2.

*1292 We detect no conflict between our original opinion here and the decisions in Sears and Novicki The Asbestos Defendants have not stated precisely the naturе of the conflict they allege exists. Moreover, the Asbestos Defendants present no error of law contained in our original opinion.

The Petition for Rehearing is granted for the reason stated above. Our opinion in Holmes, 709 N.E.2d 36, is reaffirmed.

STATON, J., and KIRSCH, J., concur.

Notes

1

. After our original oрinion in this case was handed down, Appellee, the Flintkote Company, filed a motion to correct error requesting that we clarify our opinion ‍‌‌‌‌​​​​‌‌‌‌​​‌​‌​​​‌​​​​‌​​‌​​‌‌‌‌‌​‌‌‌​‌​‌​​‌​‍to reflect that it has settled with the plaintiff and was dismissed from the appeal. However, we note that "all parties of record in the trial court shall be parties on appeal.” State v. Nixon, 270 Ind. 192, 384 N.E.2d 152, 153 (Ind.1979) (emphasis in original); Ind. Appellate Rule 2(B). Accordingly, we deny Flint-kote’s mоtion.

2

. The Asbestos Defendants stated that they did not concede that Ind.Code § 34-20-3-2 "necessarily applies to all defendants herein.” Brief of Appellees at 3 (emphasis added). In further proceedings, it will be necessary to demonstrate to the trial court that each of the Asbestos Defendants either did or did not both mine and sell commercial asbestos.