Novicki v. Rapid-American Corp. (1999)

Our plain-English summary of Novicki v. Rapid-American Corp. (Indiana Court of Appeals, March 17, 1999).

Julius Novicki worked as a welder from 1947 to 1954 and then in siding businesses until 1989. He was allegedly exposed to asbestos from various companies, including Rapid-American Corporation. He was diagnosed with mesothelioma in October 1993 and died in March 1995. In March 1997 his estate's personal representatives sued Rapid-American and forty-four other defendants for wrongful death. The trial court dismissed the complaint as untimely under Indiana Code section 33-1-1.5-5.5, which sets a two-year period running from when the injured person knows of an asbestos-related disease. The estate appealed only as to Rapid-American. The Court of Appeals reversed. It held that section 5.5 applies only to defendants that both mined and sold commercial asbestos, and Rapid-American conceded it did not. The case therefore fell under section 5, the general product liability limitation and repose provision. Because the parties had not briefed section 5, the court remanded for further argument and evidence on timeliness, listing open questions about the repose period, accrual of wrongful death claims and constitutional issues, and expressed no view on the answers.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: Indiana Court of Appeals
• Decided: March 17, 1999
• Citation: 707 N.E.2d 322
• Docket: No. 49A02-9803-CV-241
• Stage: Appeal from motion to dismiss
• State: Indiana

Outcome. The Indiana Court of Appeals reversed the trial court's dismissal of the Novicki estate's wrongful death complaint against Rapid-American as time-barred and remanded for further argument and evidence on timeliness under Section 5.

What the court held. 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.

Issues decided: Wrongful Death and Survival, Statute of Limitations, Trial Procedure and Discovery, Statute of Repose.

The people and their exposure

• Julius L. Novicki: mesothelioma; died

Who	Work	Where	When	Products
Julius L. Novicki	welder	Indiana	1947-1954
Julius L. Novicki	siding businesses worker (construction)	Indiana	1954-1989

The defendants

• Rapid-American Corporation (supplier)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Sears Roebuck and Co. v. Noppert (Indiana Court of Appeals, 1999). The Court of Appeals reversed the trial court's order granting the Nopperts' motion to correct errors and remanded with instructions to reinstate summary judgment for Sears, so Sears won and the Nopperts lost.

Later decisions citing this one

5 later decisions in our library cite this one:

• Harris v. AC & S., Inc. (Indiana Court of Appeals, 2002). The Indiana Court of Appeals reversed the trial courts' summary judgments for A.C. & S., NARCO, Mallinckrodt, Combustion Engineering, Kaiser, WTI, Rapid-American, Weil-McLain and W.R. Grace on statute-of-repose grounds and remanded, siding with the plaintiffs (Harris, Serna, Noppert and Gottschalk families).
• Black v. ACandS, Inc. (Indiana Court of Appeals, 2001). The court reversed summary judgment for defendants that was based on the ten-year statute of repose, and affirmed summary judgment for Rapid-American, Universal Refractories, ACandS and Brand for lack of product identification evidence, remanding the case.
• Jurich v. Garlock, Inc. (Indiana Court of Appeals, 2001). The Indiana Court of Appeals reversed summary judgment for Anchor Packing, Garlock, John Crane and WTI Rust Holdings, holding the ten-year statute of repose unconstitutional as applied to Carole Jurich's claims, and remanded for further proceedings.
• Spoonamore v. Armstrong World Industries, Inc. (U.S. District Court, Southern District of Indiana, 1999). The court amended its May 7, 1999 order and held that Indiana's ten-year statute of repose barred the Spoonamores' wrongful death and underlying product claims, so summary judgment stayed in place for Owens-Illinois and against the plaintiffs.
• Spoonamore v. Armstrong World Industries, Inc. (U.S. District Court, Southern District of Indiana, 1999). The district court granted John Crane's motion for summary judgment, ruling against the Spoonamore plaintiffs on the product claims, the wrongful death claim and the loss of consortium claim.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

707 N.E.2d 322 (1999)

Pat NOVICKI, as Personal Representative of the Estate of Julius L. Novicki, deceased, and widow

in her own right, and Richard T. Truitt, as Co-Personal Representative of the Estate of Julius L.

Novicki, deceased, Appellants-Plaintiffs,

v.

RAPID-AMERICAN CORPORATION, Appellee-Defendant.

No. 49A02-9803-CV-241.

March 17, 1999.

Court of Appeals of Indiana.

Mark K. Dudley, Young, Riley & Dudley Indianapolis, attorney for appellants.

Douglas B. King, Joseph R. Alberts, Wooden & McLaughlin, Indianapolis, attorneys for appellee.

OPINION

NAJAM, Judge.

FACTS AND PROCEDURAL HISTORY

Julius L. Novicki worked as a welder from 1947 until 1954 and in several siding businesses from 1954 until 1989. During those years, he was allegedly exposed to asbestos mined, produced or sold by various companies, including the Rapid-American Corporation ("Rapid-American"). On October 19, 1993, Julius was diagnosed with mesothelioma, a malignant tumor principally caused by exposure to asbestos. He died from that disease on March 4, 1995.

On March 4, 1997, Pat Novicki and Richard T. Truitt, as Co-Personal Representatives for the Estate of Julius L. Novicki, deceased, ("Novicki") filed a wrongful death action against Rapid-American and forty-four other defendants. As it pertains to this appeal, Novicki's complaint alleged that Rapid-American was liable for Julius's death based on its sale, installation and repair of asbestos products.[1]

[*323] Rapid-American subsequently filed a motion to dismiss under Indiana Trial Rule 12(B)(6) and argued that Novicki's complaint had not been commenced within the applicable statute of limitations. Specifically, Rapid-American alleged that under Indiana Code § 33-1-1.5-5.5, product liability actions based on "personal injury, disability or death resulting from exposure to asbestos" must be initiated within two years from the date that the "injured person knows that the person has an asbestos related disease or injury." As such, Rapid-American insisted that Novicki's claim was time-barred since Julius was first diagnosed with mesothelioma on October 19, 1993, and the action was not filed until March 4, 1997. The trial court agreed and dismissed Novicki's claim against Rapid-American.[2] Novicki now appeals.[3]

We reverse and remand.

ISSUE

The dispositive issue presented for our review is whether the trial court improperly dismissed Novicki's complaint against Rapid-American under Indiana Code § 33-1-1.5-5.5 ("Section 5.5").

DISCUSSION AND DECISION

Standard of Review

The trial court in this case dismissed Novicki's complaint pursuant to Indiana Trial Rule 12(B)(6). A trial rule 12(B)(6) motion to dismiss for failure to state a claim upon which relief can be granted tests the sufficiency of a claim, not the facts supporting it. Gray v. Westinghouse Elec. Corp., 624 N.E.2d 49, 52 (Ind.Ct.App.1993), trans. denied. Therefore, we view the pleadings in the light most favorable to the nonmoving party and draw every reasonable inference therefrom in favor of that party. Hill v. Beghin, 644 N.E.2d 893, 895 (Ind.Ct. App.1994), trans. denied. When reviewing a ruling on a motion to dismiss, we stand in the shoes of the trial court and must determine if the court erred in its application of the law. Marsh v. Paternity of Rodgers, 659 N.E.2d 171, 172 n. 1 (Ind.Ct.App.1995).

Section 5.5 of the Indiana Product Liability Act

In its motion to dismiss, Rapid-American argued that Section 5.5 of the Indiana Product Liability Act[4] "governs this case" and that Novicki's action is untimely under that section. The trial court dismissed Novicki's complaint pursuant to Section 5.5. On appeal, the parties assume that section is dispositive. However, as our opinion will indicate, we disagree with that premise.

Section 5.5 provides:

(a) A product liability action that is based on property damage resulting from asbestos or personal injury,

disability, disease, or death resulting from exposure to asbestos must be commenced within two (2) years

after the cause of action accrues. The subsequent development of an additional asbestos related disease or

injury is a new injury and is a separate cause of action.

(b) A product liability action for personal injury, disability, disease, or death resulting from exposure to

asbestos accrues on the date when the injured person knows that the person has an asbestos related

disease or injury.

[*324] (c) A product liability action for property damage accrues on the date when the injured person knows

that the property damage has resulted from asbestos.

(d) This section applies only to product liability actions against persons who mined and sold commercial

asbestos and to product liability actions against funds which have, as a result of bankruptcy proceedings or

to avoid bankruptcy proceedings, been created for the payment of asbestos related disease claims or

asbestos related damage claims.

* * * * * *

(f) Except for the cause of action expressly recognized in this section, this section does not otherwise modify the limitation of action or repose period contained in section 5 of this chapter.

(emphasis added). According to its express terms, emphasized above, Section 5.5 applies only to cases in which the defendant both mined and sold commercial asbestos; all other cases are subject to the limitation periods otherwise provided by Section 5 of the Product Liability Act, Indiana Code § 33-1-1.5-5.[5]

On the record before us, there is no indication that Rapid-American both mined and sold commercial asbestos. In fact, Rapid-American concedes as much in its brief on appeal:

While it is true that several defendants in asbestos litigation have sought dismissal of asbestos related claims by affirmatively asserting defenses available under Section 5.5, doing so does not preclude defendants from

arguing whether Section 5.5 necessarily applies to all defendants in all situations. Section 5.5's two-year

"discovery" rule exception to I.C. 33-1-1.5-5's otherwise applicable ten-year statute of repose may be used

only against entities that "mined and sold commercial asbestos" and "against funds which have, as a result

of bankruptcy proceedings or to avoid bankruptcy proceedings, been created for the payment of asbestos-

related disease claims or asbestos related property damage claims." Rapid never both mined and sold

commercial asbestos, nor did any entity for which it may be responsible. Rapid's efforts to achieve dismissal

in the trial court rely upon language of Section 5.5 merely to show the court that Appellants' claims are

meritless even assuming for the sake of argument that Appellants may take advantage of Section 5.5's

discovery rule vis-a-vis Rapid. Rapid in no way intends to waive the argument that Appellants may utilize

Section 5.5's discovery rule to sue Rapid and thereby sidestep the ten-year statute of repose.

(emphasis added). In arguing its motion to dismiss, Rapid-American has relied exclusively on Section 5.5 but has also conceded facts that render Section 5.5 inapplicable. Rapid-American cannot invoke Section 5.5 merely for the sake of argument; the section does not apply since Rapid-American never mined and sold commercial asbestos. Thus, we must conclude that to the extent the trial court relied upon Section 5.5 instead of Section 5, Novicki's complaint was improperly dismissed as untimely.[6]

Many issues, both of fact and of law, are presented by application of Section 5 to this case. Rather than attempt to analyze the case under Section 5 and the applicable case law without any relevant briefing from the parties, we remand to the trial court with [*325] instructions to hear additional argument and evidence regarding whether Novicki's action was timely filed. The trial court may have to determine any or all of the following questions:

1. When does Section 5's ten-year statute of repose begin to run in asbestos-related cases, on the date of initial delivery to the user or consumer or on the last date of exposure?

2. Assuming that the statute of repose begins to run on the last date of exposure, when was Julius last exposed to asbestos sold by Rapid-American?

3. Assuming that Novicki's claim is not barred by the statute of repose, is it barred by Section 5's statute of limitation? More specifically, when does a wrongful death action accrue under Section 5?

4. Whether any state or federal constitutional rights are violated by the application of Section 5 to Novicki's claim. We express no opinion at this time regarding the answers to the foregoing questions. It remains for the parties to make their respective arguments and for the trial court to render its decision in light of those arguments.

Reversed and remanded.

FRIEDLANDER, J., and MATTINGLY, J., concur.

[1] In the complaint, Novicki incorporated by reference the allegation contained in a "Master Complaint" filed in the case of JoAnn Flohr, Executrix of the Estate of Walter A. Flohr, deceased, and widow individually in her own right v. A-Best Products. Company. Like Julius, Walter allegedly died from an asbestos-related disease. The Master Complaint lists four counts: Negligence and Outrageous Conduct, Product Liability, Conspiracy and Damages. The Master Complaint was not included in our record on appeal, but we obtained the complaint by writ of certiorari.

[2] The trial court dismissed Novicki's claim against all of the defendants named in the complaint. However, Novicki perfected this appeal only as it pertains to Rapid-American. This court dismissed the other defendants by order on August 28, 1998.

[3] We held oral argument on November 30, 1998, in Indianapolis.

[4] The former version of the Product Liability Act was codified at Indiana Code §§ 33-1-1.5-1 to 33-1-1.5-10. In 1998, the Product Liability Act was repealed, amended in part and recodified at Indiana Code §§ 34-20-1-1 to 34-20-9-1. P.L. 1-1998, Sec. 15. Because Novicki's action was filed prior to the recodification, we will refer to the former code citations. We note that only minor, nonsubstantive changes were made to the sections of the Act relevant to this opinion. See IND.CODE §§ 34-20-3-1 (limitation of actions for negligence and strict liability claims) and 34-20-3-2 (asbestos-related claims).

[5] Section 5 states in pertinent part:

(a) This section applies to all persons regardless of minority or legal disability. Notwithstanding IC 34-1-2-5, it applies in any product liability action in which the theory of liability is negligence or strict liability in tort.

(b) Except as otherwise provided in section 5.5 of this chapter, a product liability action must be commenced within two (2) years after the cause of action accrues or within ten (10) years after the delivery of the product to the initial user or consumer. However, if the cause of action accrues at least eight (8) years but less than ten (10) years after that initial delivery, the action may be commenced at any time within two (2) years after the cause of action accrues.

[6] Our decision is in accord with our recent opinion in Sears, Roebuck and Co. v. Robert Noppert, 705 N.E.2d 1065, 1068 (Ind.Ct.App. 1999), in which this court held that Section 5.5 did not apply to Sears since it did not both mine and sell commercial asbestos. We declined the Plaintiffs' invitation to change "and" as used in Section 5.5(d) to "or." Id.

Sources

• The opinion on Google Scholar
• Indiana asbestos laws
• Indiana asbestos exposure sites