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Poirier v. AP Green Services8/31/2001
FOR PUBLICATION
OPINION - FOR PUBLICATION
Martha Poirier, as widow of David Poirier and executrix of his estate, appeals the Lake County Superior Court's grant of summary judgment for multiple defendants in her action for loss of consortium and the wrongful death of her husband.
Poirier raises three issues on appeal, which we consolidate and restate as:
I. Whether Ind. Code § 34-20-3-2, which permits asbestos-related causes of action to be filed within two years of the date they accrue without regard to the ten-year products liability statute of repose contained in Ind. Code § 34-20-3-1, applies to Poirier's claims against the defendants herein; and
II. Whether the trial court properly granted summary judgment for four of the defendants based on lack of product identification evidence.
We affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
David Poirier was employed as a laborer for various construction companies. He was exposed at jobsites between 1945 and 1987 to asbestos fiber and dust. As a result of his exposure to asbestos, Poirier developed lung cancer, which caused his death on December 4, 1995.
On March 29, 1996, Poirier filed an action for wrongful death and loss of consortium against ACandS, Inc., A.P. Green Services, Inc., Chicago Firebrick, Inc., Corhart Refractories, Flintkote Co., Kaiser Aluminum & Chemical, North American Refractories, and Plibrico Sales & Service. Each of these defendants moved for summary judgment. All of the motions, with the exception of that of A.P. Green, were granted.
STANDARD OF REVIEW
Summary judgment is appropriate only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). The burden is on the moving party to prove there are no genuine issues of material fact and it is entitled to judgment as a matter of law. Once the movant has met this burden, the opponent must respond by setting forth specific facts showing a genuine issue for trial; he may not simply rest on the allegations of his pleadings. Stephenson v. Ledbetter, 596 N.E.2d 1369, 1371 (Ind. 1992). At the time of filing the motion or response, a party must designate to the court all parts of the pleadings, depositions, answers to interrogatories, admissions, matters of judicial notice, and any other matters on which it relies for purposes of the motion. T.R. 56(C).
When reviewing an entry of summary judgment, we stand in the shoes of the trial court. We do not weigh the evidence but will consider the facts in the light most favorable to the non-moving party. Reed v. Luzny, 627 N.E.2d 1362, 1363 (Ind. Ct. App. 1994). We may sustain a summary judgment upon any theory supported by the designated materials. T.R. 56(C).
DISCUSSION AND DECISION
I. Application of Ind. Code § 34-20-3-2
The causes of action before us for wrongful death and loss of consortium were filed within two years of David Poirier's death. However, his death occurred more than ten years after the defendants' last deliveries of asbestos-containing products to the sites where David Poirier might have been exposed to them. In granting summary judgment in favor of the defendants, the trial court found that Poirier's claims were barred by the ten-year product liability statute of repose, Ind. Code § 34-20-3-1, because the defendants were not both miners and sellers of commercial asbestos.
Ind. Code § 34-20-3-1 provides:
product liability action must be commenced:
(1) within two (2) years aft
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