Maag v. Eaton Corporation et al

Filing 194

MEMORANDUM DECISION granting #138 Motion for Summary Judgment ; granting #143 Motion for Summary Judgment ; denying #155 Motion for Summary Judgment ; denying #156 Motion for Joinder; denying #157 Motion for Joinder; denying #158 Motion for Joinder; denying #159 Motion for Joinder; denying #160 Motion for Joinder; denying #161 Motion for Summary Judgment ; denying #163 Motion for Joinder; denying #164 Motion for Joinder; denying #168 Motion for Joinder; denying #169 Motion for Joinder; denying #184 Motion for Joinder; denying #184 Motion for Summary Judgment. Signed by Judge Ted Stewart on 10/24/2012. (asp)

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

AARON ANDERSON,
Plaintiff,

MEMORANDUM DECISION AND
ORDER ON MOTIONS FOR
SUMMARY JUDGMENT

vs.

EATON CORPORATION, et al.,

Case No. 2:10-CV-905 TS

Defendants.

This matter is before the Court on four motions for summary judgment filed by different
Defendants and joined in by various other Defendants. For the reasons set out below, the Court
finds that the three year statute of limitations in Utah Code Ann. § 78B-2-117 applies to this
case, which bars Plaintiff’s claims against those entities named for the first time in Plaintiff’s
First Amended Complaint. Therefore, the Court will deny the Motions for Summary Judgment

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filed by Defendants Eaton Corporation and General Electric Company,1 but will grant the
Motions filed by Defendants Cooper Industries, LLC and Kelly-Moore Paint Company, Inc.2
I. BACKGROUND
Plaintiff Aaron Anderson brought his original Complaint against various Defendants on
September 14, 2010. Plaintiff alleged that he had “sustained asbestos-related lung injuries as a
result of his inhalation of asbestos fibers through his occupational exposure to asbestos.”3
Plaintiff was diagnosed with pleural plaques and asbestosis on or about March of 2008.4
Plaintiff’s Complaint further stated:
All of Plaintiff’s claims arise out of repeated exposure to asbestos-containing
products manufactured, distributed, and/or sold by defendants and supplied to,
installed and/or maintained by defendants at Plaintiff’s worksites, over a period of
years, whereby toxic asbestos fibers were released and subsequently inhaled by
the Plaintiff, resulting in cumulative, progressive and incurable lung diseases.5
Plaintiff brought claims for negligence, products liability, strict liability,
representations/warnings, fraud and deceit/negligent misrepresentation, and aiding and abetting
battery.

1

Defendants General Cable Corporation, Okonite Company, Inc., Rockwell Automation,
Inc., Schneider Electric USA, Inc. f/k/a Square D Company, Georgia-Pacific LLC, Metropolitan
Life Insurance Company, and Sequoia Ventures have joined in either or both of these Motions.
2

Defendants Riley Power Inc. and Kaiser Gypsum Company, Inc. have joined in the
Motion filed by Defendant Cooper Industries, LLC.
3

Docket No. 1, ¶ 1; see also id ¶ 4 (“Plaintiff sustained an asbestos-related lung disease by
inhaling asbestos fibers released while handling asbestos-containing products at Plaintiff’s
jobsites.”).
4

Id., Ex. A.

5

Id. ¶ 6.
2

Plaintiff filed a First Amended Complaint on August 26, 2011, adding certain
Defendants. In addition to adding Defendants, the First Amended Complaint added claims for
premises owner/contractor liability and loss of consortium.
Plaintiff filed a Third Amended Complaint on December 9, 2011, which removed
Plaintiff’s loss of consortium claim.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the moving party can demonstrate that there is no genuine
dispute as to any material fact and it is entitled to judgment as a matter of law.6 In considering
whether a genuine dispute of material fact exists, the Court determines whether a reasonable jury
could return a verdict for the nonmoving party in the face of all the evidence presented.7 The
Court is required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party.8
III. DISCUSSION
The first issue to be determined is which statute of limitation applies to Plaintiff’s claims.
Defendants Eaton Corporation and General Electric—joined by Defendants General Cable
Corporation, Okonite Company, Inc., Rockwell Automation, Inc., Schneider Electric USA, Inc.
f/k/a Square D Company, Georgia-Pacific LLC, Metropolitan Life Insurance Company, and

6

FED. R. CIV. P. 56(a).

7

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
8

See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Sw. Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
3

Sequoia Ventures, Inc.—argue that Plaintiff’s claims are governed by the two year statute of
limitations contained in the Utah Product Liability Act.9 Plaintiff opposes Defendants’ Motions,
arguing that the three year limitations period found in Utah Code Ann. § 78B-2-117 applies.
The parties agree with the basic premise that, if two statutes may be applicable, the more
specific provision governs.10 This principle can be found in the language of Utah Code Ann. §
78B-2-117. That statute states that, “[n]otwithstanding any other provision of law, a statute of
limitation or repose may not bar” the type of actions described, namely “an action to recover
damages from any manufacturer of any construction materials containing asbestos and arising out
of the manufacturer’s providing of the materials, directly or through other persons, for use in
construction of any building within the state.”
Despite this language, Defendants argue that statute of limitations contained in the Utah
Product Liability Act is the more specific provision.11 Defendants focus on language from courts
interpreting the Utah Product Liability Act in support of their argument that the statute of
limitations found in the Act applies here. These cases, however, are largely unhelpful because
none of them involved asbestos-related products.
9

Utah Code Ann. § 78B-6-706.

10

See Jensen v. IHC Hosp., Inc., 944 P.2d 327, 337 (Utah 1997) (“A settled rule of
statutory construction, which helps us determine legislative intent, provides that a more specific
statute governs instead of a more general statute.”) (quotation marks and citation omitted).
11

Defendant General Electric Company also argues that summary judgment should be
granted because Plaintiff’s opposition to the motion was untimely. However, because Defendant
General Electric Company is not entitled to judgment as a matter of law, the fact that Plaintiff’s
opposition was untimely does not warrant the entry of judgment in Defendant’s favor because
“no defense to an insufficient showing is required.” Adickes v. S.H. Kress & Co., 398 U.S. 144,
161 (1970).
4

The real question before the Court is whether Plaintiff’s claims are the type of claims
described in the asbestos statute of limitations. If so, then the three year limitation would apply
because it is clearly more specific than the statute of limitations in the Utah Product Liability
Act. If Plaintiff’s claims do not fall within the type described in Utah Code Ann. § 78B-2-117,
then, of course, that statute would have no application.
To make this determination, the Court must look to the text of the asbestos statute of
limitation. Utah Code Ann. § 78B-2-117(1)(a) states:
Notwithstanding any other provision of law, a statute of limitation or repose may
not bar an action to recover damages from any manufacturer of any construction
materials containing asbestos and arising out of the manufacturer’s providing of
the materials, directly or through other persons, for use in construction of any
building within the state until July 1, 1991, or until three years after the person or
entity bringing the action discovers or with reasonable diligence could have
discovered the injury or damages, whichever is later.12
Thus, in order for this statute to apply, there must be (1) an action; (2) to recover
damages; (3) from a manufacturer of construction materials containing asbestos; (4) arising out
of the manufacturer’s providing the materials; (5) for use in construction; (6) of any building; (7)
within the state. If these elements are present, a statute of limitation or repose may not bar the
action “until July 1, 1991, or until three years after the person or entity bringing the action
discovers or with reasonable diligence could have discovered the injury or damages, whichever is
later” “[n]otwithstanding any other provision of law.”
When viewed in the light most favorable to Plaintiff as the non-moving party, the
evidence presented demonstrates that Plaintiff worked as an electrician in Utah for many years.

12

Utah Code Ann. § 78B-2-117(1)(a).
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As an electrician he was involved in the remodel and construction of various buildings in the
state. During these projects, he used materials allegedly containing asbestos that had been
provided by Defendants. As a result of his exposure to these products, Plaintiff claims to have
sustained asbestos-related lung injuries for which he seeks to recover damages. These facts are
sufficient for Plaintiff’s claims to fall within the asbestos statute of limitations. Because the facts
of this case fall within that statute, the three year limitations period applies.
Next, the Court must consider how to apply Utah Code Ann. § 78B-2-117. In the
Motions for Summary Judgment filed by Defendants Cooper Industries, LLC and Kelly-Moore
Paint Company, Inc., and joined in by Defendants Riley Power Inc and Kaiser Gypsum
Company, Inc., Defendants argue that Plaintiff’s claims against them must be dismissed even
considering the longer limitations period.
It is undisputed that Plaintiff was first diagnosed in March 2008, but did not file his
Amended Complaint naming certain Defendants until August 26, 2011, over three years after his
diagnosis. Thus, the only issue presented by the Motions filed by Defendants Cooper Industries,
LLC and Kelly-Moore Paint Company, Inc. is how to interpret § 78B-2-117.
Utah Code Ann. § 78B-2-117 states:
(1)(a) Notwithstanding any other provision of law, a statute of limitation or repose
may not bar an action to recover damages from any manufacturer of any
construction materials containing asbestos and arising out of the manufacturer’s
providing of the materials, directly or through other persons, for use in
construction of any building within the state until July 1, 1991, or until three years
after the person or entity bringing the action discovers or with reasonable
diligence could have discovered the injury or damages, whichever is later.

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(b) Subsection (1)(a) provides a statute of limitation for the specified actions, and
also acts retroactively to permit, within time limits, the commencement of actions
under this section that are otherwise barred.
Defendants argue that since Plaintiff discovered his illness in March 2008, he had three
years to file a claim against them. Since he did not do so until several months later, his claims
are barred.
Plaintiff disagrees with Defendants’ straightforward interpretation of the statute. Plaintiff
argues that “it is logical to construe this limitation as being applicable to exposures, the first of
which occurred following July 1, 1991 thereafter leading to the diagnosis of an asbestos related
injury.”13 Thus, under Plaintiff’s interpretation, there is no statute of limitations for cases of
exposure prior to July 1, 1991, and only cases of exposure after July 1, 1991, are subject to the
three year limitations period.
Plaintiff’s argument must be rejected because that interpretation is not supported by the
text of the statute. The statute says nothing of exposure. Rather, that statute removes any statute
of limitation or repose that would otherwise bar an action described under the statute “until July
1, 1991, or until three years after the person or entity bringing the action discovers or with
reasonable diligence could have discovered the injury or damages, whichever is later.” There is
nothing in the language of the statute to support a different reading. Further, subsection (1)(b)
cuts against Plaintiff’s interpretation of the statute. That provision makes clear that subsection
1(a) acts retroactively to permit actions that would otherwise be barred by another applicable
statute of limitations period. This is true regardless of when the exposure occurred.

13

Docket No. 172, at 6; Docket No. 171, at 5-6.
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This conclusion is further supported by Plaintiff’s own example. Plaintiff uses the
example of someone being exposed in 1962 (incorrectly stated as 1992 in Plaintiff’s
Memorandum in Opposition), with a latency period of 25 years, resulting in a diagnosis in 1987.
Under the statute, that individual would have until July 1, 1991, to file a claim, as that would be
the later of the two limitation periods—July 1, 1991 or three years. Thus, even under Plaintiff’s
example, the time of exposure is irrelevant. The key inquiry is when the person “discovers or
with reasonable diligence could have discovered the injury or damages.” In this case, it is
undisputed that Plaintiff “discovered the injury or damages” in March 2008. Thus, under the
clear text of the statute, Plaintiff had three years, until March 2011, to bring his claim. Plaintiff
did not file his First Amended Complaint until August 26, 2011. Therefore, the claims brought
against those Defendants named for the first time in the First Amended Complaint are barred
under § 78B-2-117.
Plaintiff recognizes that “it may . . . be possible to logically construe section [78B-2-117]
to support a time bar in this case.”14 However, Plaintiff suggests that since the language of the
limitation is subject to two reasonable interpretations, the Court should choose the interpretation
that preserves, rather than defeats, the remedy. However, since the Court must reject Plaintiff’s
argument that the limitation is subject to two reasonable interpretations, the Court must also
reject this argument.

14

Docket No. 172, at 6; Docket No. 171, at 6.
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IV. CONCLUSION
It is therefore
ORDERED that the Motions for Summary Judgment filed by Defendants Eaton
Corporation and General Electric Company, and the joinders therein, (Docket Nos. 155, 156,
157, 158, 159, 160, 161, 163, 164, 168, 169, and 184) are DENIED. It is further
ORDERED that the Motions for Summary Judgment filed by Defendants Cooper
Industries, LLC and Kelly-Moore Paint Company, Inc., and the joinders therein, (Docket Nos.
138, 140, 142, and 143) are GRANTED.
The hearing set for October 29, 2012, is STRICKEN.
DATED October 24, 2012.
BY THE COURT:

_____________________________________
TED STEWART
United States District Judge

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