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Ott v. Alliedsignal5/19/2005
FOR PUBLICATION
Case Summary
Shirley Ott, for herself and as personal representative of the estate of her late husband, Jerome Ott, maintains this action against several companies that now or previously produced or sold asbestos or asbestos-containing products to Jerome's employers, contending that occupational asbestos exposure caused his lung cancer. In a previous appeal, our supreme court concluded that applying the products liability statute of repose could raise a constitutional issue with respect to Ott's claims and remanded the matter to the trial court for relevant fact finding. On remand, the trial court concluded that Jerome's asbestos-related illness did not manifest itself within the ten-year repose period and granted summary judgment because the statute of repose precluded Ott's action. On appeal, Ott argues that the trial court misapplied our supreme court's instructions. We find that the trial court should have considered certain evidence it struck, and in light of all proper evidence we find no error in the trial court's application of the statute of repose and affirm summary judgment.
Facts and Procedural History
Ott charged that the four defendant companies were responsible for the illness and death of Jerome, who died from lung cancer that has been attributed to his occupational exposure to asbestos. The companies that now remain as defendants are AlliedSignal, Inc., Bondex Corp., Borg-Warner Corp., and McCord Gasket Co.
In 2001, the trial court acted on the defendants' motions asserting that the products liability statute of repose, Indiana Code § 34-20-3-1, and the special statute of limitations governing certain claims for damage caused by asbestos, Indiana Code § 34-20-3-2, required judgment in the defendants' favor. After denying the motions, the trial court certified its orders for interlocutory appeal. In AlliedSignal, Inc. v. Ott, 785 N.E.2d 1068 (Ind. 2003), reh'g denied ("Ott I"), our supreme court construed the applicable statutes of repose, analyzed them in relation to applicable constitutional standards, and remanded this case to the trial court for further proceedings.
On remand after our supreme court's decision, all parties again sought summary judgment, supporting their motions with expert evidence primarily in the form of affidavits and deposition transcripts. The trial court's findings and conclusions on summary judgment cover four topics, two of which are at issue in this appeal.
First, the trial court found that the last date when Jerome could have been exposed to the defendants' asbestos was 1974 for McCord, AlliedSignal, and Borg-Warner and 1972 for Bondex. Because the Otts did not bring their claims until 1999, there is no question that they were brought outside the ten-year repose period set by Indiana Code § 34-20-3-1. Appellant's App. p. 81. This finding is not at issue in this appeal.
Second, the trial court concluded that none of the four remaining defendants mined or sold commercial asbestos. Id. at 74. In Ott I, our supreme court held that the special statute of limitations in Indiana Code § 34-20-3-2 for claims relating to asbestos applied only to entities that both mined and sold commercial asbestos. 785 N.E.2d at 1072-73. Because none of the four remaining defendants mined or sold commercial asbestos, the trial court concluded that Ott's claims against the four remaining defendants were not governed by Indiana Code § 34-20-3-2 but were instead governed solely by the regular products liability statute of repose, Indiana Code § 34-20-3-1. No party has appealed this determination.
Third, the trial court also struck three affidavits filed in supp
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