Peak v. Gates Rubber Company, Inc.
Filing
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MEMORANDUM OPINION AND ORDER by Judge Greg N. Stivers on 11/7/2016, re 23 MOTION for Summary Judgment filed by Gates Rubber Company, Inc. IT IS HEREBY ORDERED that Defendant's Motion for Summary Judgment (DN 23 ) is GRANTED. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-00096-GNS-DW
DENNIS L. PEAK
PLAINTIFF
v.
GATES RUBBER COMPANY, INC.
DEFENDANT
MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion for Summary Judgment (DN
23).
The motion is ripe for adjudication.
For the reasons detailed below, the motion is
GRANTED.
I.
BACKGROUND
Plaintiff Dennis L. Peak (“Peak”) worked for Gates Rubber Company (“Gates”) in
Elizabethtown, Kentucky, from August 1975 to December 2002. (Compl. ¶¶ 1-2, DN 1-2). Peak
alleges that while working for Gates he inhaled hazardous chemicals such as benzene, toluene,
asbestos, hexane, acetone, powdered glass, powdered limestone carbon black, and others.
(Compl. ¶ 3). Peak experienced a heart attack. He was subsequently diagnosed by Dr. Paul
Gerard with congestive heart failure on November 13, 2011, and with chronic obstructive
pulmonary disease on November 18, 2011 by Dr. Krishan Challappa. (Def.’s Mot. Summ. J. Ex.
2, at 2, DN 23-2).
On January 12, 2016, Peak filed a complaint in Hardin County Circuit Court alleging that
his congestive heart failure and chronic obstructive pulmonary disease were caused by
occupational exposure to chemicals and compounds while employed at Gates. (Compl. 2).
(Compl. 3). Following the removal of the action to this Court, Gates moved for summary
judgment on August 10, 2016, arguing that the suit was barred by the statute of limitations set
out in KRS 413.140. (Def.’s Mem. Supp. Mot. Summ. J., DN 23). Peak did not file a response
to this motion.
II.
JURISDICTION
The Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332 as there
is complete diversity between Gates and Peak and the amount in controversy exceeds the sum of
$75,000.00.
III.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if
the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is no genuine issue of
material fact when “looking to the record as a whole, a reasonable mind could come to only one
conclusion . . . .” Mickler v. Nimishillen & Tuscarawas Ry. Co., 13 F.3d 184, 186 (6th Cir.
1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).
“When moving for
summary judgment the movant has the initial burden of showing the absence of a genuine
dispute as to a material fact.” Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504,
520 (6th Cir. 2014) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). “The burden
then shifts to the nonmovant, who must put forth enough evidence to show that there exists ‘a
genuine issue for trial.’” Id. (citing Horton v. Potter, 369 F.3d 906, 909 (6th Cir. 2004)).
The Court views the evidence in the light most favorable to the non-moving party,
however, the non-moving party must do more than merely show the existence of some
“metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
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475 U.S. 574, 586 (1986) (citations omitted). Rather, the non-moving party must present facts
proving that a genuine factual issue exists by “citing to particular parts of the materials in the
record” or by “showing that the materials cited do not establish the absence . . . of a genuine
dispute . . . .” Fed. R. Civ. P. 56(c)(1). “The mere existence of a scintilla of evidence in support
of the [non-moving party’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252.
IV.
DISCUSSION
For injuries to the person, KRS 413.140 provides a one-year statute of limitations period.
See KRS 413.140(1)(a). Tort claims arising from diseases allegedly caused by chemicals or
toxins fall under this one-year statute of limitations for personal injury. See Combs v. Albert
Kahn Assocs., Inc., 183 S.W.3d 190, 194 (Ky. App. 2006) (“We hold that KRS 413.410(1) is the
appropriate statute of limitations for personal injury claims due to asbestos exposure.”); see also
Drake v. B.F. Goodrich Co., 782 F.2d 638, 641 (6th Cir. 1986) (holding the plaintiffs’ claims for
personal injury where the plaintiffs or their decedents were exposed to toxic chemicals while
employees at the defendant’s plant was time-barred under KRS 413.140(1)); Blanton v. Cooper
Indus. Inc., 99 F. Supp. 2d 797, 801-03 (E.D. Ky. 2000) (applying KRS 413.140(1) to claims for
personal injury resulting from alleged chemical exposure from electric coil plant).
A tort action for injury from latent disease caused by exposure to a harmful substance
accrues, and begins the running of the limitations period on date of actual knowledge or
knowledge of the probability of disease. Louisville Tr. Co. v. Johns-Manville Prod. Corp., 580
S.W.2d 497, 501 (Ky. 1979). “When an injury does not manifest itself immediately, the cause of
action should accrue not when the injury was initially inflicted, but when the plaintiff knew or
should have known that he had been injured by the conduct of the tortfeasor.” Carroll v. Owens-
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Corning Fiberglas Corp., 37 S.W.3d 699 (Ky. 2000) (internal quotation marks omitted) (citation
omitted); see Estate of Adams v. Trover, No. 2012-CA-001877-MR, 2016 WL 100297, at *4
(Ky. App. Jan. 8, 2016) (affirming the trial court’s ruling that plaintiff’s claim accrued on the
date she was diagnosed with breast cancer).
Here, Peak seeks damages for physical injury, mental suffering, and punitive damages.
(Compl. 2). Thus, the one-year statute of limitations of KRS 413.140 would apply, and the
limitations period would begin running on the date in which Peak had actual knowledge of his
diseases. According to Peak’s response to Gate’s interrogatories, Peak was diagnosed with
congestive heart failure and chronic obstructive pulmonary disease in November 2011. (Pl.’s
Resp. to Interrog. No. 2). The action was filed in January 2016, which was over four years from
the date Peak was diagnosed and thus became aware of his diseases. Therefore, this action is
brought outside of the one-year statute of limitations, and Peak’s suit is time-barred.
V.
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Defendant’s Motion for
Summary Judgment (DN 23) is GRANTED.
Greg N. Stivers, Judge
United States District Court
November 7, 2016
cc:
counsel of record
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