Statute of Repose in Asbestos Cases

Decisions in our library in which the court ruled on statute of repose (including improvements to real property): 141 cases, by state. Each line gives what the court held, in our words; the law differs from state to state and changes, so read the opinion and talk to a lawyer before relying on any of them.

About this issue

A statute of repose is different from a statute of limitations. A limitations period runs from when a claim arises; a repose period runs from a fixed event and can expire before the injured person is ever sick. There are two main kinds:

• Construction repose statutes protect those who design, build or repair improvements to real property, often for 6 to 15 years after the work is finished.
• Product repose statutes, in some states, cut off claims against manufacturers and sellers a set number of years after a product was first sold.

Because asbestos diseases take decades to appear, repose statutes can cut off claims entirely. Many have exceptions for asbestos or latent diseases, but an exception in one statute does not necessarily apply to another, so each statute a defendant raises has to be checked on its own terms.

Asbestos cases on this issue usually ask:

• Does the defendant's conduct fall within the statute? A company that only made or supplied a product used in a building may not be protected by a construction repose statute, though a product repose statute might still apply.
• Was the item an "improvement to real property" (a turbine bolted to a power-plant floor, insulation installed in a building), and when did the protected period begin? In White v. CBS Corp., a Texas appeals court held that summary judgment was wrong on the record before it, because the worker may have been exposed while turbines were being installed, before they became improvements.
• Does an asbestos or latent-disease exception apply?

Arizona

• City of Phoenix v. Glenayre Electronics, Inc. (2017). Arizona's eight-year statute of repose, A.R.S. § 12-552(A), applies to governmental entities' contract-based claims notwithstanding A.R.S. § 12-510 and the nullum tempus doctrine. It does not bar indemnity claims under a city code provision binding permittees, because that provision is not a written agreement for the services listed in the statute.
• City of Phoenix v. Glenayre Electronics, Inc. (1st Division, 2016). Arizona's construction statute of repose, A.R.S. § 12-552(A), applies to governmental entities despite the nullum tempus doctrine, and indemnity obligations in City permits are claims 'based in contract' under the statute.
• Pounders v. Enserch E & C, Inc. (2013). For a long-latency disease such as mesothelioma, the place of injury under Restatement (Second) of Conflict of Laws § 175 is where the disease first manifests. The place of injury is only one factor, and the law of the state with the most significant relationship governs.
• Pounders v. Enserch E & C, Inc. (1st Division, Dept. A, 2012). For choice of law, a person exposed to asbestos is injured where the exposure first takes effect, not where the disease later appears. New Mexico's statute of repose shields designers and installers of customized improvements to real property even when they supplied the defective asbestos materials as integral components.
• Perez v. Southern Pacific Transp. Co. (2nd Division, Dept. A, 1993). Strict liability for abnormally dangerous activity must be decided under the Restatement (Second) of Torts § 520 factors as of the time the defendant engaged in the activity, not under the products-liability "hindsight" test of Dart v. Wiebe. The statute of repose, A.R.S. § 12-551, is unconstitutional and cannot bar the products claim.

Arkansas

• Hendrix v. Alcoa, Inc. (2016). Because the Workers' Compensation Act covers asbestos-related claims, a claim barred by the three-year statute of repose in section 11-9-702(a)(2)(B) still falls within the Act's coverage, so the exclusive-remedy provision bars a common-law tort suit against the employer.

California

• The Marley-Wylain Co. v. Superior Court of Los Angeles County (2nd Appellate District, 1st Division, 2016). Under California's governmental interest analysis, the law of the state where the asbestos exposure occurred (Michigan) applies to the claims against the defendant, because that state's interest would be more impaired than California's, to which the plaintiff later moved.
• Campbell v. Ford Motor Company (2nd Appellate District, 7th Division, 2012). Under the Rowland factors as clarified in Cabral, an employer or premises owner has no duty to protect employees' family members from secondary (take-home) asbestos exposure. New Jersey's statute of repose did not bar the claim because it excludes persons in possession and control as owner.
• McCann v. Foster Wheeler, LLC (2010). Section 361 does not require California's statute of limitations to be applied without choice-of-law analysis, so the governmental interest test governs. Under that test, Oklahoma's interest in applying its statute of repose to out-of-state designers of Oklahoma improvements would be more impaired than California's interest in a remedy for a current resident.
• McCann v. Foster Wheller, LLC (2nd Appellate District, 8th Division, 2010). Under Oklahoma's statute of repose, a boiler can be an improvement to real property and its manufacturer a designer of that improvement if substantial evidence supports those findings. Tax treatment is important but not dispositive of whether machinery is an improvement.
• McCann v. Foster Wheeler (2nd Appellate District, 8th Division, 2008). Under California's governmental interest choice-of-law analysis, California law applied rather than Oklahoma's statute of repose, because California's interest in giving its long-term resident a remedy for asbestos injury would be more impaired than Oklahoma's interest in protecting a non-resident defendant.
• Honer v. Ford Motor Company (2nd Appellate District, 7th Division, 2007). Under Code of Civil Procedure section 361, a California-citizen plaintiff who held the cause of action from accrual is not barred by another state's statute of repose. A premises owner was not entitled to summary judgment where the record on its knowledge and control was disputed.

Connecticut

• In re Nash Engineering Company (2024). A bankruptcy trustee suing under Connecticut's fraudulent transfer act stands in a creditor's shoes, and a tort claimant's claim arises on the date of injury, so she can be a creditor before any transfer even if her claim was not yet actionable. The two-year period in Bankruptcy Code section 548 is a statutory element not subject to equitable tolling.

Delaware

• Thorne v. Crane Co. (In re Asbestos Litigation) (2022). Under Iowa law, a valve attached to real property remains an improvement after it is detached and refurbished, so the statute of repose bars claims based on exposure during that work. Iowa Code § 686B.7(5) also shields a defendant from liability for exposures from a product or component part made or sold by a third party.
• Pearsons v. Heidelberg USA (In re Asbestos Litigation) (2020). Under Vermont law, a plaintiff shows substantial factor causation with evidence of more than de minimis exposure, and a right to recover that vested through exposure before the 1967 enactment of the asbestos-related statute of repose is not barred by it.
• Pruitt v. Deere & Co. (In re Asbestos Litigation) (2020). Under maritime law a plaintiff must show exposure to each defendant's product and that it was a substantial factor in causing the injury. Georgia law requires proof that the product was a contributing factor and that the plaintiff was near its use. An unopposed motion still requires the court to find that the undisputed facts support judgment.

District of Columbia

• District of Columbia v. Owens-Corning Fiberglas Corporation (1989). The District of Columbia, when suing in its municipal capacity to vindicate public rights and perform public functions, enjoys a common-law immunity (nullum tempus) from the statutes of limitations and repose. Removing widespread asbestos contamination from public buildings is such a public function.

Florida

• Dugas v. 3M Company (2016). A dust mask not designed or marketed to protect against asbestos is not defectively designed for failing to do so, but a jury may find the manufacturer's warnings about its limits inadequate. A Florida fraud claim is barred when the last act of concealment fell outside the 12-year repose period.

Georgia

• Sinyard v. Georgia Power Company (2022). A premises owner that contracts to build for co-owners is a statutory employer immune from tort suit for that construction work. Otherwise, whether a premises owner had superior knowledge of the specific asbestos hazard, and whether it relinquished possession and control to the worker's contractor, are jury questions unless the worker's own employer had equal knowledge.
• Georgia Power Company v. Campbell (2021). An owner owes no duty to a contractor's employees only if it relinquished possession and did not control the work, and contract terms showing retained control raise fact questions. A trial court must act as gatekeeper and rule on a challenge to an expert's qualifications; an appellate court will not decide an argument the trial court did not address.
• Fletcher v. Water Applications Distribution (2015). A manufacturer's duty in a design defect case is judged by risk-utility analysis, which is not limited to particular classes of people, so a household-exposure plaintiff's design and failure-to-warn claims against the manufacturer can go to a jury. A distributor lacking knowledge of the hazard and never possessing the product has no continuing duty to warn.

Illinois

• Adams v. Employers Insurance Company OF Wausau (3rd District, 2016). Section 12.80 of the Business Corporation Act bars suits against a dissolved corporation, and its shareholders, after the five-year wind-up period. A declaratory action to reach the dissolved corporation's liability insurance without a liability determination is a prohibited direct action against insurers, and courts will not use equity to override the statute.
• Folta v. Ferro Engineering (2015). Where an occupational disease is the type of injury within the scope of the Workers' Compensation Act and Workers' Occupational Diseases Act, the exclusive remedy provisions bar a common-law action against the employer even if the disease first appeared after the acts' time limits had expired and no benefits were available.
• Folta v. Ferro Engineering (1st District, 5th Division, 2014). An asbestos-injured employee whose workers' compensation claim was barred by the statute of repose before he learned of his injury has an injury "not compensable under the Act," so the exclusivity provisions do not bar a common-law suit against the employer.
• Stanley v. Ameren Illinois Co. (2013). An owner or general contractor owes a duty to a subcontractor's worker under the retained-control doctrine only if it controls the manner and methods of the work, not mere general oversight. Asbestos-containing thermal insulation installed in a new power plant is an improvement to real property, so the Illinois 10-year construction statute of repose bars claims over its installation.
• Gregory v. Beazer East (1st District, 5th Division, 2008). An owner who hires an independent contractor owes a duty to the contractor's employee only if it retained control over how the work was done; general rights to inspect, stop work and control access are not enough. Under the Restatement (Second) of Conflict of Laws, choice-of-law analysis (depecage) applies to issues, not to individual defendants in a single-injury case.
• Boldini v. Owens Corning (4th District, 2001). The Illinois construction statute of repose, section 13-214(b), applies to the activity of installing asbestos-containing materials but not to the related sales and distribution of those materials, even when the sales are incident to installation; this rule applies only to asbestos claims.
• King v. Paul J. Krez Co. (1st District, 5th Division, 2001). Installing insulation, including sales incidental to installation, is an activity protected by the construction statute of repose (735 ILCS 5/13-214(b)), and the discovery rule does not extend that repose period.
• Risch v. Paul J. Krez Co. (1st District, 6th Division, 1997). Under the construction statute of repose, protection turns on the defendant's activities rather than its status. A defendant that was only an insulation installer working on a labor and material basis is protected, and evidence of paying sales-type taxes did not show distinct sales activity.
• State Farm Mut. Auto. Ins. Co. v. WR Grace & Co. (1993). The Illinois construction statute of repose protects a product manufacturer only if it substantially participated in construction activities or custom-made and installed its product for the project, and only for claims arising from those construction activities, not manufacturing-related negligence such as failure to warn.
• Whitney v. Industrial Com'n (4th District, Industrial Commission Division, 1992). Section 1(f) of the Workers' Occupational Diseases Act acts as a statute of repose requiring disablement within three years of last asbestos exposure, and the 1984 extension of the death-claim filing period in section 6(c) did not displace that requirement.
• Blazek v. Nicolet, Inc. (1st District, 1988). A statute of repose cannot be applied retroactively to end a cause of action unless the plaintiff had a reasonable time after its effective date to sue. A strict liability suit filed about seven years after the effective date, and over 32 years after exposure, was not filed within a reasonable time.
• Costello v. Unarco Industries, Inc. (1986). Where a cause of action was inchoate when the 1979 statute of repose took effect and accrued after that date, the plaintiff gets a reasonable time after the effective date to sue, and a suit filed within three years of that date and two years of discovery is timely.
• Costello v. Unarco Industries, Inc. (4th District, 1984). Under the Illinois product liability statute of repose, which applies to causes of action accruing on or after January 1, 1979, an asbestos strict liability claim accrues on discovery of the injury, and the statute is constitutional. A negligence complaint in an asbestos case must plead the specific disease and each defendant's place in the chain of production.
• Hobby v. Johns-Manville Sales Corp. (1983). Under Illinois law, survival-type and Family Expense Act claims are derivative and subject to the two-year personal injury limitations period running from the decedent's diagnosis, while loss of consortium in a wrongful death action is governed by the Wrongful Death Act's limitations period. The products liability repose period turns on when the disease manifested, a question for trial.

Indiana

• Myers v. Crouse-Hinds Division OF Cooper Industries, Inc. (2016). Section 2 of the Indiana Product Liability Act's asbestos provision, as construed in Ott, violates the Equal Privileges and Immunities Clause and is void in its entirety. That restores Covalt, under which the Act's ten-year statute of repose does not apply to claims based on protracted exposure to an inherently dangerous foreign substance.
• TH Agriculture and Nutrition, LLC. v. Akaiwa (2007). The asbestos-specific accrual rule in Indiana Code 34-20-3-2 applies only to persons who mined and sold commercial asbestos, so a mere distributor is subject to the ten-year statute of repose in Section 1. The principal-distributor provision in 34-20-2-4 does not make a distributor a miner for this purpose.
• Jurich v. John Crane, Inc. (2005). Under the Indiana Supreme Court's Ott test, the repose statute's exception applies only if a reasonably experienced physician could have diagnosed a clinically recognized, symptomatic or routinely detectable asbestos-related disease within the ten-year period; asymptomatic cellular damage detectable only by unethical invasive testing does not qualify.
• AlliedSignal, Inc. v. Herring (2003). The asbestos-specific repose provision (Section 2) applies only to entities that mined raw commercial asbestos, so claims against sellers of asbestos-containing products fall under the general ten-year product liability repose period, subject to a limited exception where a reasonably experienced physician could have diagnosed the disease within the ten years but the plaintiff had no reason to know until afterward.
• Harris v. AC & S., Inc. (2003). The asbestos-specific provision (Section 2) applies only to entities that both mined and sold commercial asbestos, so claims against others fall under the ten-year product liability repose statute. That statute is unconstitutional as applied only where a reasonably experienced physician could have diagnosed the disease within ten years but the plaintiff had no reason to know until the period expired.
• Jurich v. Garlock, Inc. (2003). The asbestos-specific statute of repose (Section 2) applies only to entities that both mined and sold raw commercial asbestos, so sellers of asbestos-containing products fall under the ten-year repose statute (Section 1). That statute is constitutional except where a diagnosable disease existed within the ten years but the plaintiff had no reason to know of it until the period had expired.
• Harris v. AC & S., Inc. (2002). The asbestos exception to the product liability statute of repose, which gives two years from knowledge of an asbestos-related disease, does not require a defendant to have both mined and sold commercial asbestos. A claim filed within two years of diagnosis is therefore timely.
• Allied Signal, Inc. v. Herring (2001). The asbestos exception to Indiana's ten-year products liability statute of repose applies to persons who mined and persons who sold commercial asbestos, not only to those who did both. Whether defendants sold "commercial asbestos" was waived because it was not raised in the trial court.
• Black v. ACandS, Inc. (2001). The asbestos exception to the ten-year products liability statute of repose, Ind. Code 34-20-3-2, applies to persons who mined commercial asbestos and to persons who sold it without mining it. A plaintiff must produce evidence supporting an inference that he inhaled asbestos dust from the specific defendant's product.
• Parks v. AP Green Industries, Inc. (2001). A plaintiff must produce evidence supporting a non-speculative inference that he inhaled asbestos dust from the defendant's product. Indiana's asbestos exception to the ten-year statute of repose reaches those who mine or sell commercial asbestos, and a later-developed asbestos disease such as lung cancer is a new injury with its own two-year period.
• Lambert v. Babcock & Wilcox Co. (1999). A claim for asbestos exposure aboard a naval vessel on navigable water falls within admiralty jurisdiction and is governed by maritime law. The Indiana statute of repose is inconsistent with the federal maritime limitations statute and so does not apply.
• Novicki v. Rapid-American Corp. (1999). Section 5.5 of the Indiana Product Liability Act, with its two-year discovery rule for asbestos claims, applies only to defendants that both mined and sold commercial asbestos; all other defendants are governed by the limitation and repose periods of Section 5. A defendant that concedes it did not both mine and sell asbestos cannot invoke Section 5.5 merely for argument's sake.
• Sears Roebuck and Co. v. Noppert (1999). A motion to correct errors cannot be treated as a T.R. 60(B) motion to substitute for a timely appeal absent extraordinary factors. The asbestos discovery-rule exception to the product liability limitations statute applies only to persons who mined and sold commercial asbestos, not to a seller of boilers containing some asbestos components.
• Spoonamore v. Armstrong World Industries, Inc. (1999). A plaintiff must produce evidence that he inhaled asbestos from the defendant's product. Indiana's asbestos exception to the ten-year statute of repose applies only to defendants that both mined and sold commercial asbestos. Where the repose period has run on the underlying product claims, a wrongful death claim based on them is also barred.
• Spoonamore v. Armstrong World Industries, Inc. (1999). If the product liability statute of repose has expired for the claims underlying an asbestos wrongful death action, the wrongful death action is barred too. The asbestos accrual provision, Ind. Code § 34-20-3-2, applies only to defendants who mined and sold commercial asbestos.