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Parks v. A.P. Green Industries9/14/2001
FOR PUBLICATION
OPINION - FOR PUBLICATION
STATEMENT OF THE CASE
William and Wilma Parks ("the Parkses") appeal the trial court's grant of summary judgment in favor of the following corporations: (1) A.P. Green Services, Inc. ("Green"), a Michigan corporation; (2) B.M.W. Constructors, Inc. ("B.M.W."), an Indiana corporation doing business in Indiana; (3) Chicago Firebrick Company ("Chicago Firebrick"), an Illinois corporation; (4) Garlock, Inc. ("Garlock"), an Ohio corporation; (5) Hunter Corporation ("Hunter"), a Delaware corporation; (6) Morrison Construction Company ("Morrison"), an Indiana corporation doing business in Indiana; (7) Owens Corning Fiberglass Corporation ("Owens Corning"), a Delaware corporation; and (8) Uniroyal, Inc. ("Uniroyal"), a New Jersey corporation.
Affirmed in part, reversed in part, and remanded.
ISSUES
I. Whether the Parkses presented sufficient evidence to create a genuine issue of material fact on product identification.
II. Whether the statute of repose bars the Parkses' asbestos product liability claim.
FACTS
From approximately 1969 until 1988, Mr. Parks worked as an ironworker and boilermaker at various sites in northwestern Indiana. Each of the above-mentioned corporate entities are alleged to have been engaged in the business of manufacturing, distributing, installing, or removing industrial products that may have contained asbestos at those sites. On June 13, 1988, Mr. Parks was diagnosed with asbestosis. In 1989, Mr. Parks filed a complaint in the United Stated District Court for the Southern District of Indiana against defendants not included in the instant case. He alleged that his illness was proximately caused by the "various asbestos and asbestos materials mined, manufactured, processed, imported, converted, compounded or sold by [those] efendants." (R. 218).
1. After a physical checkup in January 1999, Mr. Parks was informed that an x-ray revealed a "spot or growth in the left lung." (R. 376).
2. In late February 1999, a pulmonary specialist at Veterans Hospital in Tampa told Mr. Parks that the spot appeared to be lung cancer. Dr. Suwan of Methodist's Hospital in Indianapolis diagnosed Mr. Parks as having lung cancer on April 13, 1999, and one-third of his left lung was subsequently removed.
3. On February 24, 1999, the Parkses had filed the instant products liability and loss of consortium action. Their complaint was amended on September 21, 1999 to include the lung cancer as a subsequent disease. They alleged that Mr. Parks was exposed to asbestos under the following circumstances: (1) through contact with products containing asbestos that were manufactured, sold, distributed, or installed by Green, Chicago Firebrick, Garlock, and Uniroyal; (2) by inhaling asbestos dust and fibers as an employee of B.M.W.; and (3) by inhaling asbestos dust and fibers created by the work of Hunter's and Morrison's employees.
On November 2-3, 1999, the defendants filed their motions for summary judgment. Chicago Firebrick, Green, Hunter, and Uniroyal argued that the statute of repose barred the Parkses' claims. B.M.W. first argued that because Mr. Parks was its employee, worker 's compensation was his exclusive remedy against it. Additionally, B.M.W., Chicago Firebrick, Hunter, and Morrison argued that the Parkses failed to provide evidence that Mr. Parks was exposed to an asbestos product manufactured or produced by a particular defendant.
The Parkses responded by arguing that the legislature did not intend the statute of repose to bar their claim, and that adopting the defendants' interpre
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