Starnes, et al v. A.O. Smith Corporation, et al

Filing 423

MEMORANDUM ORDER AND OPINION granting 407 Crosby Valve, Inc.'s, 409 FMC Corporation's, 411 Sterling Fluid Systems (USA), LLC's, 413 Gardner Denver, Inc.'s, 415 Watts Water Technologies, Inc.'s, 417 Ingersoll Rand Company's, and 419 Trane US, Inc.'s Motions for Summary Judgment, and said parties are all hereby DISMISSED from this matter. Signed by District Judge Martin Reidinger on 9/23/2014. (khm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12-CV-360-MR-DLH

RALPH O’NEIL STARNES, et al.,

)
)
Plaintiffs,
)
vs.
)
)
A.O. SMITH CORPORATION, et al.,
)
)
Defendants.
)
_______________________________ )

MEMORANDUM ORDER
AND OPINION

THIS MATTER is before the Court on the summary judgment motions
filed by seven defendants to this proceeding, to wit: FMC Corporation on
behalf of its former subsidiary, and originally sued as Crosby Valve, Inc.
(herein “FMC/Crosby”) [Doc. 407]; FMC Corporation on behalf of its former
Peerless Pump business and originally sued as FMC Corporation,
individually and as successor-in-interest to Peerless Pump Company
(herein “FMC/Peerless”) [Doc. 409]; Sterling Fluid Systems (USA), LLC.,
formerly known as Peerless Pump Co. (herein “Sterling”) [Doc. 411];
Gardner Denver, Inc. (herein “Gardner”) [Doc. 413]; Watts Water
Technologies, Inc. sued as successor to Powers Regulatory Company, Inc.
(herein “Watts”) [Doc. 415]; Ingersoll Rand Company (herein “Ingersoll”)
[Doc. 417]; and Trane U.S. Inc., formerly known as American Standard

Companies, sued individually and as successor-in-interest to American
Radiator Company also known as Ideal Boiler (herein “Trane”). [Doc. 419].
Plaintiffs bring this diversity action asserting seven1 claims for relief in
their Amended Complaint. [Doc. 199]. All of the claims center upon Plaintiff
Ralph O’Neil Starnes having contracted mesothelioma from breathing
asbestos dust.

[Id. at 26]. Count One alleges negligence [Id. at 32-36],

Count Two alleges breach of implied warranty [Id. at 36], Count Three
alleges willful and wanton conduct [Id. at 37-38], Count Four alleges false
representation [Id. at 38-39], Count Five alleges failure to warn [Id. at 3942], and Counts Six and Seven assert claims against defendants other than
those moving for summary judgment herein. [Id. at 42-47]. All of Plaintiffs’
claims are brought pursuant to North Carolina law. [Id. at 32].
As stated, the seven defendants listed herein have each filed a
motion for summary judgment. Plaintiffs have not responded to any of the
defendants’ motions. Six of the defendants – FMC/Crosby, FMC/Peerless,
Sterling, Gardner, Ingersoll, and Trane – raise the same issue in their
summary judgment motions. Defendant Watts raises an issue different

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Plaintiffs’ first five claims are asserted against all defendants except Metropolitan Life
Insurance Company. Plaintiffs’ sixth claim names only defendants Sears Roebuck and
Company and Converse, Inc. Plaintiffs’ seventh claim names only Metropolitan Life
Insurance Company.

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from the other six defendants in its summary judgment motion. The Court,
therefore, will discuss these two separate issues in turn.
FACTUAL BACKGROUND
The forecast of evidence, in the light most favorable to the plaintiffs,
is as follows.

Plaintiff Ralph O’Neil Starnes experienced occupational

exposure to asbestos from 1956 through the 1980’s while working as a
control fitter for Powers Regulatory Company, Robert Shaw Controls
Company, and Honeywell Company, all based in Charlotte, NC. As a
control fitter, Mr. Starnes was exposed to asbestos fibers as he installed
and repaired pneumatic controls for heating and cooling systems, which
included working with and around asbestos-containing thermostats, control
gauges, valves, regulators, and actuators manufactured and/or supplied by
many of the defendants. [Doc. 199 at 27]. While working for the same
three companies, Mr. Starnes repaired and installed compressors
manufactured by some of the defendants, which also exposed him to
asbestos packing, gaskets, and thermal insulation. [Id.].
As a part of his employ with the three companies, Mr. Starnes would
be dispatched to other commercial and industrial sites, including those
owned and controlled by some of the defendants, where he was exposed
to asbestos thermal insulation while it was being cut, installed, and
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removed.

[Id. at 27-8].

Further, at such sites, Mr. Starnes was also

exposed to the mixing, applying, sanding, and cleaning-up of joint
compounds, manufactured by various defendants, containing asbestos.
Throughout his career at the various industrial and commercial sites, Mr.
Starnes routinely worked in close proximity to pipefitters, drywallers,
insulators, boilermakers, mechanics, millwrights, laborers and contractors.
In working around these trades, Mr. Starnes was exposed to asbestos
gaskets, packing, and thermal insulation. [Id. at 28].
STANDARD OF REVIEW
In reviewing a party’s motion for summary judgment, this Court is
mindful that summary judgment is proper “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). A fact is “material” if it
“might affect the outcome of the case.” N&O Pub. Co. v. RDU Airport
Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine dispute” exists “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).
A party asserting that a fact cannot be genuinely disputed must
support its assertion with citations to the record. Fed. R. Civ. P. 56(c)(1).
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“Regardless of whether he may ultimately be responsible for proof and
persuasion, the party seeking summary judgment bears an initial burden of
demonstrating the absence of a genuine issue of material fact.” Bouchat v.
Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If
this showing is made, the burden then shifts to the non-moving party who
must convince the Court that a triable issue exists.

Id.

Finally, in

considering the motions for summary judgment filed by the defendants, the
Court must view the pleadings and materials presented in the light most
favorable to the plaintiffs, the non-movants, and must draw all reasonable
inferences in plaintiffs’ favor as well. Adams v. UNC Wilmington, 640 F.3d
550, 556 (4th Cir. 2011).
DISCUSSION
I.

The Six Defendants’ Motions for Summary Judgment.
Defendants FMC/Crosby, FMC/Peerless, Sterling, Gardner, Ingersoll,

and Trane argue that they are entitled to summary judgment due to the
absence of any evidence that Mr. Starnes was exposed to any of their
products, and thus they are responsible for no action that proximately
caused his mesothelioma. Representative of the defendants’ basis for
summary judgment is the following showing from defendant Gardner:
Plaintiff worked from approximately 1956 – 1980’s as a
control fitter installing and repairing pneumatic controls for
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heating and cooling systems at various industrial locations
across North and South Carolina. … Plaintiff generally alleged
that most of the defendants were manufacturers or suppliers of
asbestos containing products which were used at Plaintiff’s job
sites, as identified in Plaintiff’s work history spreadsheet
produced by Plaintiff in discovery. …
During the discovery phase, and on May 22, 2013, the
Plaintiff testified in a video trial deposition and a discovery
deposition. In both of the Plaintiff’s depositions, he failed to
identify any type of work in or around [the six defendants’]
related equipment at any of the work sites in which he worked
throughout his career. In addition, the Plaintiff did not provide
any testimony regarding possible exposure to asbestos from
any [of these six defendants’] product[s].
Plaintiff’s own deposition is his only source of evidence
regarding his alleged asbestos exposure, as he has not
disclosed or identified any other possible product identification
witnesses, such as co-workers.
[Doc. 414 at 2-3]; in accord, [Doc. 408 at 2]; [Doc. 410 at 2]; [Doc. 412 at
2]; [Doc. 418 at 1-3]; [Doc. 420 at 1-3].
The defendants, having presented a forecast of evidence that
supports this assertion, thus shift the burden to the plaintiffs to come
forward with a forecast of evidence demonstrating that a triable issue
exists. Bouchat, 346 F.3d at 522.

More particularly, to avoid summary

judgment, plaintiffs must put forth a showing of admissible evidence that
Mr. Starnes had frequent, regular, and proximate exposure to an asbestoscontaining product for which any of these defendants is legally responsible.
Lohrmann v. Pittsburgh Corning Corporation, 782 F.2d 1156 (4th Cir.
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1986). As noted above, plaintiffs have not filed any responses to these six
defendants’ motions, and therefore, they have not carried this burden. As
such, it is undisputed that the necessary evidence of causation linking
these six defendants to Mr. Starnes’ contraction of mesothelioma is absent
for the purposes of the defendants’ motions. See Fed.R.Civ.P. 56(e)(3) (if
a party fails to properly support an assertion of fact or fails to properly
address another party’s assertion of fact as required by Rule 56(c), the
court may grant summary judgment if the motion and supporting materials,
including the facts considered undisputed, show that the movant is entitled
thereto).

Thus, there being no genuine issue of any material fact in

dispute, the Court will grant the six defendants’ summary judgment
motions.
II.

Defendant Watts’ Motion for Summary Judgment.
Defendant Watts argues that its summary judgment motion should be

granted because Plaintiffs’ evidence fails to support the theory on which
they sued Watts. In his deposition, Mr. Starnes provided a history [Doc.
414-1] of his relevant employment and testified that he worked as a control
fitter for various companies including Powers Regulatory, which he referred
to as “Powers, MCC Powers, or Powers Regulator to begin with, then it
changed to MCC Powers,” and then a company he called “Landis & Gyr
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Powers, Inc.” [Doc. 416-2 at 6 (p.18)]. Mr. Starnes testified that he was
exposed to asbestos containing materials during his work for these
companies. [Doc. 416-2 at 6-7 (pp.18-22)].

Plaintiffs make this claim

against Watts solely alleging that it was the legal “successor to the Powers
Regulatory Company, Inc.” business that employed Mr. Starnes. [Doc. 199
at 24]. Watts contends, however, that plaintiffs have produced no evidence
that Watts is the true successor in interest to Mr. Starnes’ former employer.
Before one corporation can be held liable for the torts allegedly
committed by another, at a minimum, the “successor” corporation has to
acquire the business assets of the predecessor associated with the alleged
tort. See, Statesville Stained Glass, Inc. v. T.E. Lane Constr. & Supply Co.,
110 N.C.App. 592, 599, 430 S.E.2d 437, 441 (1993) (“In order to become
liable as a successor corporation for the debts of another corporation, there
must at a minimum be a transfer of assets from the old corporation to the
transferee corporation.”). Watts has presented the following forecast of
evidence showing that it did not acquire the business assets of Powers
Regulatory ultimately transferred to Landis & Gyr Powers, Inc., Mr. Starnes’
former employer.
Beginning in 1977, the Powers Regulatory assets underwent a series
of transactions which resulted in an entity completely unrelated to Watts –
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Landis & Gyr Powers, Inc. (“Landis”) – owning the business for which Mr.
Starnes worked when he was allegedly exposed to asbestos. [Doc. 416 at
5]. According to Watts’ documentary record, the following series of events
took place. On October 3, 1977, Mark Controls Corporation (“Old Mark”)
acquired the assets of Powers Regulatory. [Docs. 416-4 at 4; 416-5 at 9].
In 1985, the Powers Regulatory business was incorporated as a subsidiary
of Old Mark, and named MCC Powers, a name change that Mr. Starnes
described in his testimony, as noted above. [Doc. 416-6]. In 1987, Old
Mark entered into a series of transactions that resulted in it merging into
Landis. [Doc. 416-10]. Prior to its merger into Landis, Old Mark “carved
out” certain valve-related assets, which are the only assets of the former
Powers Regulatory business that were ultimately transferred to Watts.
[Doc. 416-11 at 3]. Thus, according to Watts’ forecast of evidence, the
business for which Starnes worked was passed to Landis, not Watts. [Doc.
416 at 5-6].
Watts’ showing also establishes that Mr. Starnes’ employment
records indicate that the business for which he worked was the one
transferred to Landis and had nothing to do with Watts. [Doc. 414-1].
Further, Mr. Starnes’ Social Security Administration Itemized Statement of

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Earnings reflects this evolution in his employment, and confirms that he
worked for Landis, and never for Watts. [Doc. 416-12 at 6-7].
Having made the above showing, Watts has shifted the burden to the
plaintiffs to come forward with a forecast of evidence that would show a
triable issue exists. Bouchat, 346 F.3d at 522. More particularly, under
Lohrmann, to avoid summary judgment, plaintiffs must put forth a showing
of admissible evidence demonstrating that Mr. Starnes had frequent,
regular, and proximate exposure to a Watts’ asbestos-containing product,
or worked for Watts’ predecessor-in-interest through which such exposure
occurred. Plaintiffs have not filed any response to Watts’ summary
judgment motion, and therefore, they have not carried this burden. As
such, it is undisputed that the necessary evidence of causation linking
Watts to Mr. Starnes’ contraction of mesothelioma is absent for the
purposes of Watts’ motion. Fed.R.Civ.P. 56(e)(3). Thus, with there being
no genuine issue of any material fact in dispute, the Court will grant Watts’
summary judgment motion.
CONCLUSION
Based upon the foregoing analysis, the Court concludes that all
seven of the defendants’ forecasts of evidence, taken in the light most
favorable to plaintiffs as the non-movants, is sufficient to establish that no
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genuine dispute exists as to any of the material facts. Accordingly, the
seven named defendants herein are entitled to judgment as a matter of law
and should be dismissed from this action.

ORDER
IT IS, THEREFORE, ORDERED that the following defendants’
Motions for Summary Judgment [Docs. 407; 409; 411; 413; 415; 417; 419]
are GRANTED and defendant FMC Corporation on behalf of its former
subsidiary, and originally sued as, Crosby Valve, Inc.; defendant FMC
Corporation on behalf of its former Peerless Pump business and originally
sued as FMC Corporation individually and as successor-in-interest to
Peerless Pump Company; defendant Sterling Fluid Systems (USA), LLC.,
formerly known as Peerless Pump Co.; defendant Gardner Denver, Inc.;
defendant Watts Water Technologies, Inc. sued as successor to Powers
Regulatory Company, Inc.; defendant Ingersoll Rand Company; and
defendant Trane U.S. Inc., formerly known as American Standard
Companies, sued individually and as successor-in-interest to American
Radiator Company also known as Ideal Boiler, are all hereby DISMISSED
from this matter.
IT IS SO ORDERED.
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Signed: September 23, 2014

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