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Ott v. Alliedsignal5/19/2005
reasons not fairly laid at the manufacturer's door." McIntosh, 729 N.E.2d at 980 (internal quotation omitted).
We conclude that the trial court properly evaluated the evidence and determined that there was no genuine issue of material fact as to whether Ott's cause of action arose during the repose period. Because she had no claim during the repose period, application of the statute of repose did not violate her rights under Article I, Section 12 of the Indiana Constitution (we address a related claim under Article I, Section 23 below). We therefore affirm the trial court's judgment that Ott's action was untimely under the statute of repose. III. Jury
Ott also claims that a jury should have determined the factual question regarding when the asbestos-related illness manifested itself. Under the Trial Rules, a trial court may grant summary judgment when no genuine issue of material fact exists and judgment is proper as a matter of law. Ind. Trial Rule 56(C). " he purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try." Wozniczka v. McKean, 144 Ind. App. 471, 247 N.E.2d 215, 228 (1969) (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 467 (1962)). But parties only are entitled to jury determinations when factual issues actually exist. In this case, the trial court correctly determined that there was no factual issue as to whether Jerome's cancer manifested itself, as defined by Ott I, during the repose period, because Ott submitted no evidence creating a factual dispute on that question. Because there was no genuine issue of material fact, no jury was required.
Ott's reliance on Shah v. Harris, 758 N.E.2d 953 (Ind. Ct. App. 2001), trans. denied, requires no different result. To the contrary, in Shah this Court reversed the trial court's denial of summary judgment and ordered that summary judgment be granted in favor of medical malpractice plaintiffs on a statute of limitations question. Because the plaintiffs in Shah provided evidence that showed that their cause of action arose during the limitations period, and the defendant failed to materially controvert that evidence, it was proper to take the limitations question away from a jury and grant summary judgment for the plaintiffs. The relevant question is whether any material issue of fact is controverted, and in this case that question is answered in the negative, meaning that there is no fact-finding role for a jury to play. The trial court correctly determined this issue without a jury.
IV. Equal Privileges and Immunities Clause
Ott also alleges that the statute of repose, as applied by the trial court, violates her rights under the Equal Privileges and Immunities Clause, Article I, ยง 23 of the Indiana Constitution. She alleges that this violation occurs because the statute of repose precludes claims by individuals such as herself, who are harmed by asbestos-caused injuries that manifest themselves more than ten years after the product is initially delivered, while permitting claims by those whose asbestos-caused injuries manifest themselves before the repose period expires. As she puts it, o apply [Ott I] to the medical evidence before this Court and find that the cancer victim has no cause of action while a nonmalignant disease victim has a cause of action, would result in the disparate treatment of asbestos-related disease victims based upon their various disease categories and the time period in which these differing diseases are diagnosable.
Appellant's Br. p. 13-14.
Section 23 addresses the propriety of governmental classifications. As shown by McIntosh, Indiana High School Athletic Ass'n, Inc. v. Carlber
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