*1 Accordingly, we vacate the trial court's May
order of to the extent it prior grant
rescinded the court's of an
enlargement of time for the Church to
respond to the Estate's judg-
ment motion and struck those of the pleadings
Church's that would have been
timely had the enlargement of time
been rescinded. We remand with instrue-
tions that the trial court set aside the pro- and for further
ceedings opinion. consistent with this
SHARPNACK, C.J., KIRSCH, J.,
concur. POIRIER,
Martha Administratrix Poirier, deceased,
Estate of David right, Appellant-
widow her own
Plaintiff, SERVICES, INC.,
A.P. GREEN - - ACandS, Inc., Chicago Firebrick, Refractories, Co.,
Corhart Flintkote Chemical, Aluminum & Refractories,
American Plibrico Sales Svcs., Appellees-Defendants.
&
No. 45A03-9910-CV-388.
Court of Appeals of Indians.
Aug. *2 ACandS, Inc. and North Ameri-
neys for can Refractories. Norris, Choplin & Kamplain, L.
Bruce IN, Schroeder, Attorney for Indianapolis, Chicago Firebrick. Harney, F. Hume Smith Ged-
Edward IN, Simmons, Indianapolis, & des Green Refractories. Attorney for Corhart Allen, Pera, E. Buos- David W. Robert Merrillville, Nowak, cio, Pera, Kramer & IN, Aluminum & Attorney for Kaiser Chemical. McCambridge, Kennedy, Segal, L.
Jason IL, Attorney Mahoney, Chicago, Singer & for Plibrico Sales & Sve. Laudig Ruther- Sipes, Geoge Russell
W. IN, Indianapolis, Attorney Sipes, ford & Lawyers Trial for Amicus Indiana Curiae Association. IN, Williams, Attorney Indianapolis,
Jon Corporation Amici Asbestos for Curiae Mines, Ltd. Limited and Bell Asbestos OPINION MATTINGLY-MAY, Judge. Poirier, as widow of David Poiri Martha estate, appeals er and executrix his Superior grant of County Lake Court's multiple for defen for loss of consortium dants her action death of her husband.1 wrongful and the appeal, three issues on Poirier raises Paul, Paul, Myers, Reich & E. Robert we consolidate and restate as: which Harris, PA, P.C., Wil- Philadelphia, Willie 34-20-3-2, I. Whether IN, Associates, Attor- Gary, lie & Harris causes of permits which asbestos-related neys Appellant. for years filed within two of the action to be & Harrington, Johnson Cornelius J. regard to the ten- they date accrue without IL, Bell, Ltd., Attorney for A.P. Chicago, year liability statute Services, Inc. Green ap contained in Ind.Code the defendants to Poirier's claims plies Dillman, M. Mehringer, E. Lisa Susan ein;2 IN, Indianapolis, Attor- her Wagner, Lewis & ap § 34-20-3-2 argument 2. Because we find Ind.Code in this case
1. We heard oral claim, cases, we do not address her plies to Poirier's were consolidat- companion which argument, solely purposes ed of the oral in assertions the trial court's alternative ten-year products terpretation of the January properly party II. Whether to prove there are no issues summary judgment for four fact and it is judg material entitled to lack defendants based on identi- as a matter of law. Once the movant burden, fication has met this opponent evidence. respond by setting forth specific facts *3 part, part, We affirm in reverse in trial; a issue for he may remand. not simply rest on allegations of his Ledbetter, pleadings. Stephenson v. AND FACTS PROCEDURAL 1369, (Ind.1992). N.E.2d At the time HISTORY filing response, the motion or party a David employed Poirier was as a laborer designate to the court all parts of the for various companies. construction He pleadings, depositions, answers to inter jobsites between 1945 and rogatories, admissions, judicial matters of 1987 to asbestos fiber and dust. As a notice, any other matters on which it exposure result of his Poirier relies for purposes of the motion. T.R. cancer, developed lung which caused his 56(C). 4, death on December reviewing entry When an of sum On March filed an ac mary judgment, we stand the shoes of wrongful tion for death and loss of consor the trial court. We do not weigh the ACandS, Inc., tium AP. Green evidence but will consider the Services, Inc., Firebrick, Inc., Chicago light most favorable to the non-moving Refractories, Co., Corhart Flintkote Kai party. Luzny, 1362, Reed v. 627 N.E.2d Chemical, ser Aluminum & North Ameri 1363 (Ind.Ct.App.1994). mayWe sustain a Refractories, can and Plibrico Sales & Ser summary judgment upon any theory sup vice. Each of these defendants moved for ported by designated materials. T.R. summary judgment. motions, All of the 56(C). Green, with the of that of exception A.P. granted.3 were AND DISCUSSION DECISION
STANDARD OF Application § REVIEW I. Ind.Code 34-20-3- Suramary judgment appropriate only is
when
there is no
issue material
The causes of action before us for
fact
moving party
and the
is entitled to wrongful death and loss of consortium
judgment as a matter of law.
Ind. Trial were filed within
years
of David Poiri-
56(C).
However,
er's death.
his death occurred
Rule
The
moving
burden is on the
repose
statute of
violates the Indiana Consti
ment order and did not submit a brief on this
appeal.
granted
Richey,
The court
tution.
See
Martin
711 N.E.2d
(Ind.1999) (Sullivan, J.,
1285 n. 2
Aluminum,
con
judgment motions of Kaiser
Pli-
(if
curring)
reviewing
may
court
resolve a
brico, ACandS, and
American
Refracto-
grounds,
case on non-constitutional
it will not
grounds
ries on the
that Poirier's
action
proceed to resolve the constitutional
issues
repose
barred
the statute of
and that Poiri-
presented).
er had not demonstrated her husband had
provided by
been
to asbestos
those
summary judgments
Chicago
The
Fire-
defendants.
brick,
Refractories,
Corhart
and Flintkote
AP. Green's
motion
were
on the sole
that Potrier's
denied,
ten-year prod-
appeal
claims were filed
and AP. Green did
outside of the
not
liability
ucts
codified at
Ind.
order.
A.P. Green
is listed as
§
appellees
Code
34-20-3-1.
caption
Flintkole settled subse-
one of the
on the
of most
quent
summary judg-
to the issuance of the
appeal.
the documents
associated with this
years after the defendants'
have,
than ten
more
funds
as
result
asbestos-containing prod-
bankruptcy proceedings
to avoid
deliveries
last
David Poirier
ucts to the sites where
proceedings, been created
bankruptey
granting
In
to them.
have been
dis-
payment
for the
of asbestos related
in favor of the defen-
property
ease claims or asbestos related
found that Poirier's
dants,
the trial
damage claims.
ten-year
claims were barred
84-20-3-2(d)
(emphasis sup-
Ind.Code
repose,
statute
uct
plied).
were
the defendants
because
recently
in Black v.
determined
of commercial
and sellers
not both miners
ACandS,
(Ind.Ct.App.
uct. we Rule found Cobb's claim "was solely conjecture." based Id. Cobb's evi dence Corning was that the Owens asbestos- complaint, alleged In her Poirier containing product pipe was used aas cover asbestos-containing American "sold ... ing; product present job that the at a site (R. exposed." ucts to which Plaintiff was at worked; 12.) where Cobb had that Cobb had re In her memorandum in of her pipe covering; pipe moved bui that the answer to cover judg- North American's ing he removed did not have a brand name on motion, Poirier to assert for the appears it and product first time that North American that another manufacturer's not cov- pipe covering was also used as at the same Liability ered the Product Act "because only "possibility" site. We found the provider, defendant is a supplier service not a product was installed or removed while Cobb (R. 889.) products." at Because we find site, job was at the and we noted specific showing that to Poirier has not set forth facts actually conclude the asbestos fibers were re a ground, issue for trial on either we {ind leased into the air summary judgment and inhaled Cobb for North American require "would an proper. even more tenuous reli asbestos-containing products, only sold main performed some indicating ACandS application in of those at assisted the and 1970 but also in tenance work (Br. Martha Poi Gary; Appellant, in products." how facilities Steel certain U.S. 26.) portion refers us to a no that rier at She ever, offers evidence Poirier memoran vicinity containing in the counsel's have been the record might decedent above, which, decline dum, explained to asbestos we work as any of that "evidence," along therefore as a result. We with accept or dust to as fibers erred to the to in say marketing document referred summary judgment in it The trial court noted extent footnote seven. ACandS$ identi on a lack of based order that Poirier its fication evidence. Kaiser was en offered no evidence had activity any at location any in such gaged
8. Plibrico Because we the decedent worked. where products specific asserts Plibrico's has not set forth find Poirier being in decedent for trial on "resulted issue or services in in ser fibers asbestos either a seller or asbestos Kaiser was (Br. provider, we find vice Appellant, workplace," the his [sic] 26), only to at but she cites proper. Martha Poirier Kaiser was an installer of that "Plibrico was evidence CONCLUSION industry in several asbestos holding Black (Id.) This evi We reaffirm our states, Indiana." including 34- contained only speculation exception permits best dence ten-year product have ex to the of Plibrico 20-3-2 the activities repose applies to claims prod to asbestos posed Poirier's husband *6 against installed; commercial asbestos and accordingly, we miners of Plibrico ucts if even granting in sellers of commercial say the trial court erred product. mine the do not also summary judgment for Plibrico based those sellers evi identification Therefore, against an absence of Poirier's claims those miners sellers but not defendants who are dence. by are not barred of commercial asbestos Kaiser7 4. in Ind.Code ten-year accordingly reverse and we evidence of Poirier asserts "the of Chica- summary judgments favor showed that Kaiser fered Kaiser placed of commerce" asbestos an- into the stream of her In her memorandum motion, decedent was swer to Plibrico's or to which the fiber by covered Poirier asserts Plibrico was not (R. 14.) memorandum in exposed. at In her Liability Act "because defendant the Product summary to Kaiser's support of her answer provider, supplier of is a not a service motion, appears to assert judgment (R. 823.) Because we find Poirier ucts." at was not covered time that Kaiser for the first specific has not set forth defen- Liability Act "because the Product ground, we issue for trial on either provider, supplier of not a dant is a service find for Plibrico 853.) (R. support, Poirier products." at As proper. marketing document that men- a Kaiser offers any particular nothing or tions about asbestos specific complaint no alle- 7. Poirier's makes generally "Kaiser Re- workplace, but states gations against except it is a Cali- engineering gunning specialists and complaint fractories corporation. fornia (R. applications." many types assist in generally alleges "manu- all of the defendants distributed, 855.) factured, sold, otherwise go Firebrick and Corhart Refractories. affirm grant the trial court's of sum-
mary judgment for Kaiser Alu- defendants
minum, Plibrico, North American Refrac-
tories, ACandS, as Poirier failed to
demonstrate a issue of material
fact as to whether the decedent was ex-
posed to asbestos manufactured or install-
ed those defendants.
Affirmed in part, part, reversed in
remanded.
ROBB, J., concurs. J.,
MATHIAS, opinion. dissents with
MATHIAS, J., dissenting. ACandS,
In Black v. 752 N.E.2d at I (Ind.Ct.App.2001), dissented on the
basis that Indiana Code section 34-20-3-
2(d) unambiguously applies only to those
who "mined and sold" commercial asbes Moreover,
tos. Id. at I concluded
that neither Indiana Code section 34-20- 34-20-3-2(d)
3-1 nor violated pro certain
visions of the Indiana Constitution. For Block,
the same expressed reasons I
respectfully dissent in this case and would
affirm the grant trial court's
judgment. *7 STORES, INC.,
WAL-MART
Appellant-Defendant, WRIGHT, Appellee-Plaintiff.
Ruth Ann
No. 29A05-0009-CV-403. Appeals
Court of of Indiana.
Sept.