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From Products Liability Law Daily, June 27, 2014

Repose period silences $4.5M award in asbestos case

By Pamela C. Maloney, J.D.

Pennsylvania’s statute of repose for improvements to real property barred a steam plant worker’s asbestos-related injury claims against the company that designed the plant’s boiler and supplied the asbestos insulation, the Superior Court of Pennsylvania held. The court refused to create an exemption for asbestos cases (Graver v. Foster Wheeler Corp., June 26, 2014, Panella, J.).

Background. The worker, David Graver, had been employed at a Pennsylvania Power & Light steam plant where he was exposed to asbestos emanating from the boiler’s insulation, causing him to develop mesothelioma. He and his wife brought product liability and loss of consortium claims against Foster Wheeler Corporation, the designer of the boiler and supplier of asbestos insulation used in the boiler. Although the trial court determined that the boiler was an improvement to real property, it denied Foster Wheeler’s motion for summary judgment based on the statute of repose. The jury awarded the worker $3 million in damages and awarded his wife another $1.5 million for loss of consortium. The court molded the verdicts based on the jury’s finding that five settling defendants were liable and entered a modified verdict of $500,000 for the worker and $250,000 for his wife. Foster Wheeler appealed.

Statutes of repose. The court distinguished a statute of limitations from a statute of repose explaining that the repose period begins to run upon the completion of certain conduct by the defendant. The statute of repose at issue in this case begins to run after the completion of construction of an improvement to real property and provides that a cause of action for injury or wrongful death that occurs more than 10 and within 12 years after completion of the improvement must be brought no later than 14 years after completion of the improvement. In this case, the worker’s lawsuit was 43 years after the deadline imposed by the statute and barred the claims.

Application to asbestos insulation supplier/designer. The worker offered several arguments as to why the statute did not apply in this case. First, he argued that Foster Wheeler was a manufacturer and supplier of metal products and asbestos insulation, not a designer of improvements to real property and, therefore, the statute did not apply. He also claimed that asbestos was not an “improvement” as contemplated by the statute. The court found that Foster Wheeler was involved in the overall design and construction of the boiler and that its role was not limited to merely supplying insulation. In addition, the boiler itself was clearly an improvement to real property, providing the essential function of the plant. Thus, the boiler met the requirements of an improvement to real property and Foster Wheeler’s role brought the company within the scope of those defendants covered by the statute.

Exception for asbestos-related cases. The worker also argued that there was no statutory right to repose in asbestos cases based on the court’s statement in Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009). The court distinguished the Abrams case from this case, stating that Abrams dealt solely with the interplay between the asbestos statutes of limitations and the “one disease” and “two diseases” rules, and noted that there was no discussion of the statute of repose for improvements to real estate. The court also rejected the worker’s final argument that the statute of repose and the asbestos statute of limitations were irreconcilable, arguing that the asbestos statute of limitations should apply because it was adopted more recently than the statute of repose. The court declared that both statutes could function without conflict because the statute of limitations applies only to cases arising from alleged exposure to asbestos whereas the statute of repose had a greater reach, applying to all claims involving improvements to real property. Although the two statutes would overlap in asbestos exposure claims involving improvements to real property, the overlap did not prevent courts from giving effect to both statutes. Finally, the court opined that it was the role of the legislature, not the courts, to carve out exceptions for personal injury and wrongful death actions caused by asbestos exposure.

The case number is 470 EDA 2012.

Attorneys: Robert E. Paul (Paul, Reich & Myers, PC) for David and Frances Graver. Leroy J. Janiczek (Reilly, Janiczek & McDevitt, PC) for Foster Wheeler Corp.

Companies: Foster Wheeler Corp.

MainStory: TopStory SofLReposeNews AsbestosNews PennsylvaniaNews

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