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.

Rhode Island

• Turcotte v. 3M Company (2018). Under Rhode Island's interest-weighing approach, the law of the state with the most significant relationship governs, and depecage applies to issues rather than to individual defendants. In a multi-defendant asbestos case involving a single injury, different states' laws cannot be applied defendant by defendant.
• Pisano v. Sears, Roebuck and Co. (In re Asbestos Litigation) (2016). A dying person's affidavits made believing death was impending are admissible at summary judgment under the dying-declaration exception, and can supply product identification. A seller that did not take part in installing the product is not a protected "materialman" under Rhode Island's statute of repose.
• Baumgartner v. American Standard, Inc. (2015). Under Rhode Island's interest-weighing choice-of-law approach, Ohio law governed an Ohio resident's claim over Ohio-centered exposures. Under Ohio law, a bare-metal valve maker is not liable absent proof it supplied or specified asbestos, and boilers and turbines installed as improvements to real property fall under the ten-year statute of repose.
• Sharp v. Afc-Holcroft (2010). The Rhode Island construction statute of repose, § 9-1-29, does not protect a passive manufacturer that did not install or take part in the construction of the improvement, where the alleged defect (asbestos in tiles) existed from manufacture and had nothing to do with later third-party negligence.
• Plympton v. American Standard (inc.) (2008). Rhode Island's statute of repose for improvements to real property, § 9-1-29, does not protect manufacturers and suppliers who were not directly involved in specific construction or improvement projects; whether Kaiser qualified as a protected materialman was a question of fact.
• LaPOINTE v. 3M Company (2007). Installing burners is an improvement to real property under the Rhode Island statute of repose, but servicing, repairing and maintaining them is not, so claims based on repair exposure are not repose-barred. Whether the burners contained asbestos and whether a duty to warn existed are jury questions.

South Carolina

• Protopapas v. Wall, Templeton & Haldrup, PA (2023). A dissolved corporation's statute of repose under S.C. Code § 33-14-107 applies only if a statutorily compliant notice of dissolution was published, and the party asserting the defense bears the burden of proving publication.
• Matthews v. EI DU Pont DE Nemours and Company (2018). A contractor's employee is a statutory employee of the owner under S.C. Code § 42-1-400 if his work meets any one of three tests: important to the owner's business, necessary and integral to it, or previously done by the owner's employees. The Act's two-year repose period for pulmonary occupational disease did not take the claim outside the exclusive-remedy provision.

Tennessee

• Coffman v. Armstrong International, Inc. (2019). Daily removal and reinstallation of insulation at an industrial plant is repair or replacement, not construction of an improvement to real property, so the construction repose statute does not apply. Under Tennessee's Satterfield duty analysis, equipment makers can owe a duty to warn about asbestos parts added to their equipment after sale, and Tennessee does not follow the bare-metal defense.
• Johnson County, Tenn. v. US Gypsum Co. (1984). The asbestos exception in Tennessee's ten-year products liability ceiling, T.C.A. § 29-28-103(b), covers any action resulting from exposure to asbestos, including a school's property damage and economic loss claims, and a county school system gets no sovereign exemption from limitations periods for such claims.

Texas

• Brown & Root, Inc. v. Shelton (12th District, 2003). The Texas contractor's statute of repose does not protect a contractor from exposure that occurred before the asbestos materials were annexed to the realty. Under Chapter 33, an injured person and the family member seeking damages for that injury are one claimant, so the non-settling defendant gets a full credit for all settlements.
• Gilcrease v. Tesoro Petroleum Corp. (4th District, 2001). A nonresident plaintiff suing in Texas under section 71.031 must satisfy the repose statute of the foreign state where the wrongful act occurred, as well as its statute of limitations. Alaska's repose statute applied, and neither its hazardous waste exception nor its foreign body tolling provision covered asbestos exposure.
• White v. CBS Corp. (3rd District, 1999). Under the Texas ten-year statute of repose for improvements to real property, an item is not an improvement until it is annexed to the realty, so exposure occurring while asbestos was still a chattel or within a chattel not yet installed is not barred as a matter of law.
• Fuller-Austin Insulation Co. v. Bilder (9th District, 1998). A bystander exposed to asbestos dust brought home on a worker's clothes may recover from a supplier that failed to warn of the dangers. A party that settled and was nonsuited before submission to the jury is not a 'defendant' who can make a binding settlement-credit election.
• Waller v. Pittsburgh Corning Corp. (1991). Under Texas choice-of-law rules a foreign statute of repose is substantive law, so the Kansas ten-year repose statute applied. A later Kansas reviver amendment could not retroactively defeat the defendants' vested repose defense.

Vermont

• Carpin v. Vermont Yankee Nuclear Power Corporation (2024). Under 12 V.S.A. § 518(a), the "last occurrence" to which a latent injury is attributed is the most recent proximate cause, here the last asbestos exposure, not the latent cellular changes preceding diagnosis; the twenty-year repose period is a permissible legislative policy choice under Article 7.

Virginia

• Roller v. Basic Const. Co. (1989). In an occupational disease case, the employer's and employee's rights under the Workers' Compensation Act become fixed when the diagnosis is first communicated to the employee, so the statute in effect on that date governs. A repealed five-year limit from last injurious exposure therefore created no vested right of repose and the 1983 amendment applied without unconstitutional retroactivity.

Washington

• Welch v. Brand Insulations, Inc. (1st Division, 2023). Under Condit, the construction statute of repose applies only if the defendant's activities contributed to the construction of a structural improvement or of a system integral to the improvement and required for it to function as intended. A defendant moving for summary judgment must prove those facts with evidence, and it is not enough that its work was related to or part of an original construction.
• Maxwell v. Atlantic Richfield Co. (2nd Division, 2020). Washington's construction statute of repose (RCW 4.16.300 and .310) applies to a general contractor and its insulation subcontractor for claims arising from constructing a refinery, because the refinery was an improvement upon real property. The version of the statute in effect at substantial completion governs, not later amendments.
• Cameron v. Atlantic Richfield Company (1st Division, 2019). The date of substantial completion of construction determines which version of the construction statute of repose applies, and the 2004 amendment is not retroactive. The 1967 statute bars claims arising from covered construction activities but not claims based on a defendant's activities as a premises owner.
• Hoffman v. Ketchikan Pulp Co. (2nd Division, 2019). The law of the case from an earlier appeal decided under the CR 12(b)(6) standard did not bar summary judgment. Under Alaska law, none of the exceptions to the repose statute (gross negligence, hazardous waste, foreign body) applied, so Alaska law conflicted with Washington law and governed, and the claim was barred.
• Estate OF Brandes v. Brand Insulations, Inc. (1st Division, 2017). A contractor that installed asbestos insulation and created dust without labeling or controls owed a duty of care to the spouse of a nearby worker who was exposed through laundering his clothes. A denial of summary judgment on disputed material facts cannot be appealed after a trial on the merits.
• Hoffman v. General Electric Company (2nd Division, 2016). On a CR 12(b)(6) motion, facts alleged and hypothetical facts are taken as true. Hoffman's allegations could bring his claims within exceptions to Alaska's statute of repose (defective product as to GE, gross negligence as to both defendants), so there might be no conflict with Washington law and dismissal was improper.

Wisconsin

• Nooyen v. Wisconsin Elec. Power Co. (2020). Under Mair, the construction statute of repose bars safe place claims resulting from structural defects, including airborne asbestos released during original construction. The statute applied to a mesothelioma claim that arose on diagnosis after 1994 without improper retroactivity, and it did not violate the constitutional right to a remedy.
• Mohn v. CBS Corporation (1st District, 2018). The construction statute of repose, Wis. Stat. § 893.89, protects those who only furnish materials for an improvement to real property, as distinct from manufacturers of defective materials. It does not violate the right to remedy or equal protection clauses as applied to latent asbestos disease.
• Ahnert v. Employers Insurance Company OF Wausau (2017). The Wisconsin Safe Place Statute duty is nondelegable and extends to employees of independent contractors. A defendant claiming the construction statute of repose must prove the work was an improvement to real property rather than maintenance, and here that was a disputed fact question.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wisconsin's safe place statute, a jury must decide whether asbestos dust released during outage work was an unsafe condition and whether the owner kept supervision or control; the owner's duty to those on its premises cannot be delegated to a contractor. The construction statute of repose does not bar the claim as a matter of law when it is unclear whether the work was an improvement or maintenance and repair.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Airborne asbestos released during regular pipe repair and insulation work can be an unsafe condition associated with the structure under Wisconsin's safe place statute, and the statute of repose does not bar the claim unless the defendant shows the work was an improvement to real property.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Evidence that an insulation contractor worked at the sites where the plaintiff was near dusty asbestos insulation work can let a jury infer exposure caused by that contractor. Wisconsin's construction statute of repose protects permanent improvements to real property, not repair or maintenance work, so it did not bar the claim on this record.
• Ahnert v. Employers Insurance Company OF Wausau (2016). Under Wis. Stat. § 893.89, a company that specified and erected a boiler is protected from suit brought more than ten years after installation unless it manufactured or produced the allegedly defective material. The statute of repose does not violate the Wisconsin Constitution's right-to-remedy provision.
• Alexander v. Auer Steel & Heating Co. (1st District, 2015). A plaintiff in a products liability action must offer direct evidence of exposure to the defendant's asbestos product or evidence supporting a reasonable inference of exposure; a mere possibility or guess about the supplier or manufacturer is speculation and insufficient.
• Brezonick v. AW Chesteron Company (1st District, 2015). A defendant claiming protection under Wisconsin's construction statute of repose must prove that the work causing the injury was an improvement to real property rather than maintenance or repair. The size of a project does not decide that question, and the defendants did not meet that burden here.
• Nuutinen v. CBS Corporation (2015). Wisconsin's construction statute of repose does not bar claims against a material producer based on a defect in the material, even when the material was made for a particular project. Claims arising from maintenance work are not improvements to real property and are also outside the statute.
• Peter v. Sprinkmann Sons Corp. (2015). "Damages" in the statute of repose's pre-April 29, 1994 exception means legally actionable damages, not physical injury at exposure; but routine daily repair and maintenance of insulation is not an "improvement to real property" and so is not covered by the construction statute of repose.
• Estate OF Gregovich v. Auer Steel & Heating Supply (1st District, 2014). A circuit court erroneously exercises its discretion by disregarding summary-judgment submissions for page-limit or lateness violations without a showing of egregious conduct or bad faith. A plaintiff must produce evidence that a defendant's product actually contained asbestos.
• Anderson v. Procter & Gamble Paper Products Co. (2013). Under Wis. Stat. § 893.89(4)(d), 'damages that were sustained prior to April 29, 1994' means damages tied to an accrued claim, not mere physical damage from asbestos exposure, so the exception did not save a claim that accrued in 2009.
• Anderson v. Proctor & Gamble Paper Products Co. (2013). Under Wisconsin's safe place statute, a premises owner owes a heightened statutory duty to employees of independent contractors, separate from the common-law rule in Tatera. The construction statute of repose does not apply to damages sustained before April 29, 2004, and that date turns on when the injury was sustained, not when the claim accrued.
• Anderson v. the Proctor & Gamble Paper Products Company (2013). Wisconsin's safe place statute imposes a heightened duty on premises owners toward frequenters, including an independent contractor's employees, which does not require proof of an affirmative act of negligence. The construction statute of repose does not bar the claim where the damages were sustained before April 29, 2004.

Wyoming

• Johnson v. Allis-Chalmers Corp. Prod. Liab. Trust (2014). In an asbestos case, a plaintiff must offer competent evidence that the defendant's product or conduct was a substantial factor in causing the harm. Witnesses who admit in deposition that they lack personal knowledge of what the insulation contained, or who made it, cannot supply that evidence. The court also applied Pennsylvania's 12-year construction statute of repose, in the alternative, to Bechtel, CBS and GE.
• Johnson v. Allis-Chalmers Corporation Product Liability Trust (2014). Under the substantial-factor causation test, a plaintiff must have admissible, personal-knowledge evidence linking a particular defendant's asbestos to the plaintiff's exposure. Witnesses' deposition testimony that contradicts their earlier affidavits is treated as more reliable at summary judgment, and a real-property-improvement statute of repose can bar claims over permanent improvements.
• Covington v. WR Grace-Conn., Inc. (1998). Whether a product is an improvement to real property under Wyoming's statute of repose is a question of law grounded in fact. Where the record on the product's use and permanency is insufficient and conflicting, a fact question precludes summary judgment.