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Ashdown v. Ameron International Corporation8/17/2000
Appellants' decedent, Gary Smith, expired in April 1994, shortly after he was diagnosed with a terminal asbestos-related disease. This action was brought against respondent Ameron International Corporation (Ameron) by his estate, by and through the decedent's surviving spouse and executor Ellen Ashdown (Ashdown) and his children Kristy Smith and Ian Smith, alleging wrongful death and survival rights of action for negligence, strict liability and loss of consortium caused by his exposure to asbestos during his employment as a pipe inspector for respondent's predecessor company. The trial court granted summary judgment in favor of Ameron, finding that appellants' action was barred by the Workers' Compensation Act, none of the exceptions to the exclusivity of the workers' compensation remedy applied to the facts of this case, and Ameron was entitled to judgment as a matter of law. We affirm.
Factual and Procedural Background
Gary Smith was employed as a pipe inspector by respondent Ameron's predecessors-in-interest, Amercoat, Inc. (Amercoat) and American Pipe and Construction Co. (American Pipe) in Brea, California, from 1964 through 1966. Appellant's evidence indicates that during the period of his employment with Amercoat and/or American Pipe as an inspector and tester of pipe, Smith was exposed to asbestos used in respondent's manufacture of asbestos-containing pipes and other related products. Smith became disabled on January 18, 1994. On February 21, 1994, he was diagnosed as having mesothelioma, an asbestos-related disease. Smith died on April 21, 1994.
Appellants filed their initial complaint on May 31, 1994. Although this complaint identified one of Ameron's predecessor companies, American Pipe, as a location where the decedent "used, handled or was otherwise exposed to asbestos and asbestos-containing products" while employed as a "Pipe Inspector" between 1964 and 1966, the complaint did not name American Pipe, Amercoat or Ameron as defendants. On April 9, 1997, appellants filed a motion for leave to file a first amended complaint naming Ameron as a defendant, alleging they had failed to name Ameron as a defendant initially because they had only "recently learned of facts indicating liability of Ameron . . . for the exposure of [decedent Smith] to asbestos materials resulting in his illness and death." Appellants were granted leave to amend.
In its answer to the first amended complaint, respondent asserted as affirmative defenses the exclusivity of the remedy of the Workers' Compensation Act, and appellants' failure to commence their action against respondent within the applicable one-year limitations period. Respondent subsequently moved for summary judgment on these grounds, and noticed a hearing to be held on Friday, July 3, 1998.
On June 15, 1998, appellants' counsel notified respondent's attorney that the motion for summary judgment could not be heard on July 3, 1998, because it was a court holiday in observance of Independence Day. On June 17, 1998, appellants filed an ex parte application requesting an order shortening time setting the date for hearing the summary judgment motion on Thursday, July 2, 1998, or alternatively to allow the motion to be heard closer to the trial date. The trial court granted the motion, and reset the hearing for July 14, 1998. At the conclusion of the hearing, the trial court granted respondent's motion for summary judgment, finding "that there is no triable issue as to any material fact" as to the exclusivity of the workers' compensation remedy under the facts of the case, and appellants had failed to demonstrate that either the dual capacity or the fraudulent concealment exception applied. The trial court ent
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