CASE NOTES

Asbestos Claims Time Barred Under Statute of Repose

Claims against contractors as installers of materials containing asbestos are time barred under the state's statute of repose; asbestos claims do not fall outside the statute of repose. Foster v. Spriggs, No. 49A05-0111-Cv-508, Ct. of App. of Indiana, June 5, 2003.

A widow brought a wrongful death lawsuit against 60 defendants, including the contractors that installed or removed certain construction materials, after her husband died as a result of exposure to products containing asbestos. The husband was employed as a pipe fitter since 1963. He allegedly was exposed to asbestos at various times throughout his career. He eventually contracted lung cancer and died on July 1, 1998. The defendants last completed work at the job site at issue at least 10 years prior to the time the plaintiff commenced her action against the defendants. The defendants moved for summary judgment, arguing that under the Indiana Construction Statute of Repose the plaintiff's claims were time barred because any work performed by the decedent at the defendant's construction sites was performed more than 10 years prior to the commencement of the plaintiff's action. The trial court granted summary judgment to the plaintiff, holding that asbestos claims fell outside the statute. The appellate court reversed and granted summary judgment to the defendants. It held that the statute was designed to protect the defendants in question because they were the installers of the materials. The court noted that the statute did not apply to manufacturers, material men or suppliers.

STATUTE OF REPOSE DOES NOT BAR CLAIMS RELATING TO POOL KIT

Claims against a manufacturer and installer of a residential swimming pool are time barred under the state's statute of repose with respect to installation but not with respect to the product itself. Dziewiecki v. Bakula et al., A-2442-01T2, Sup. Ct. of New Jersey, June 5, 2003.

Janusz Dziewiecki, the plaintiff, became a quadriplegic after intentionally jumping into the Bakula's swimming pool. The plaintiff did not jump from the diving board and mistakenly believed he was jumping into deep water. The pool was installed in 1972 by the prior owner who had purchased the pool from Grobels, an authorized dealer and installer of the pool, which was manufactured by Fox Pools, Inc. The plaintiff sued the homeowners, the pool's installer and distributor, and the manufacturer. After the homeowners settled the claim against them out of court, the trial court granted summary judgment to the installer/distributor and manufacturer under the New Jersey Statute of Repose (SOR). The court held that the plaintiff's claim was time barred: the swimming pool was an improvement to real property, and since the pool had been added to the property more than 10 years earlier, under the SOR the plaintiff was barred from any claims he might have. On appeal, the appellate court reversed and remanded for trial. The appellate court held that the SOR did not bar all the plaintiff's claims. The court concluded that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself. The swimming pool kit manufactured by Fox and installed by Grobels is a product, a component of the improvement to real estate. A seller or installer of the product is not engaged in the statutorily protected activity of designing, planning or constructing an improvement to real property. Therefore, the lawsuit could proceed against Fox as the designer/manufacturer and against Grobels as the seller of the pool kit. The court noted that any claims against Fox or Grobels regarding the installation were precluded and only the claims related to the design and manufacture of the pool kit were permitted.

Claims against a manufacturer and installer of a residential swimming pool are time barred under the state's statute of repose with respect to installation but not with respect to the product itself. Dziewiecki v. Bakula et al., A-2442-01T2, Sup. Ct. of New Jersey, June 5, 2003.

Janusz Dziewiecki, the plaintiff, became a quadriplegic after intentionally jumping into the Bakula's swimming pool. The plaintiff did not jump from the diving board and mistakenly believed he was jumping into deep water. The pool was installed in 1972 by the prior owner who had purchased the pool from Grobels, an authorized dealer and installer of the pool, which was manufactured by Fox Pools, Inc. The plaintiff sued the homeowners, the pool's installer and distributor, and the manufacturer. After the homeowners settled the claim against them out of court, the trial court granted summary judgment to the installer/distributor and manufacturer under the New Jersey Statute of Repose (SOR). The court held that the plaintiff's claim was time barred: the swimming pool was an improvement to real property, and since the pool had been added to the property more than 10 years earlier, under the SOR the plaintiff was barred from any claims he might have. On appeal, the appellate court reversed and remanded for trial. The appellate court held that the SOR did not bar all the plaintiff's claims. The court concluded that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself. The swimming pool kit manufactured by Fox and installed by Grobels is a product, a component of the improvement to real estate. A seller or installer of the product is not engaged in the statutorily protected activity of designing, planning or constructing an improvement to real property. Therefore, the lawsuit could proceed against Fox as the designer/manufacturer and against Grobels as the seller of the pool kit. The court noted that any claims against Fox or Grobels regarding the installation were precluded and only the claims related to the design and manufacture of the pool kit were permitted.

Asbestos Claims Time Barred Under Statute of Repose

Claims against contractors as installers of materials containing asbestos are time barred under the state's statute of repose; asbestos claims do not fall outside the statute of repose. Foster v. Spriggs, No. 49A05-0111-Cv-508, Ct. of App. of Indiana, June 5, 2003.

A widow brought a wrongful death lawsuit against 60 defendants, including the contractors that installed or removed certain construction materials, after her husband died as a result of exposure to products containing asbestos. The husband was employed as a pipe fitter since 1963. He allegedly was exposed to asbestos at various times throughout his career. He eventually contracted lung cancer and died on July 1, 1998. The defendants last completed work at the job site at issue at least 10 years prior to the time the plaintiff commenced her action against the defendants. The defendants moved for summary judgment, arguing that under the Indiana Construction Statute of Repose the plaintiff's claims were time barred because any work performed by the decedent at the defendant's construction sites was performed more than 10 years prior to the commencement of the plaintiff's action. The trial court granted summary judgment to the plaintiff, holding that asbestos claims fell outside the statute. The appellate court reversed and granted summary judgment to the defendants. It held that the statute was designed to protect the defendants in question because they were the installers of the materials. The court noted that the statute did not apply to manufacturers, material men or suppliers.

STATUTE OF REPOSE DOES NOT BAR CLAIMS RELATING TO POOL KIT

Claims against a manufacturer and installer of a residential swimming pool are time barred under the state's statute of repose with respect to installation but not with respect to the product itself. Dziewiecki v. Bakula et al., A-2442-01T2, Sup. Ct. of New Jersey, June 5, 2003.

Janusz Dziewiecki, the plaintiff, became a quadriplegic after intentionally jumping into the Bakula's swimming pool. The plaintiff did not jump from the diving board and mistakenly believed he was jumping into deep water. The pool was installed in 1972 by the prior owner who had purchased the pool from Grobels, an authorized dealer and installer of the pool, which was manufactured by Fox Pools, Inc. The plaintiff sued the homeowners, the pool's installer and distributor, and the manufacturer. After the homeowners settled the claim against them out of court, the trial court granted summary judgment to the installer/distributor and manufacturer under the New Jersey Statute of Repose (SOR). The court held that the plaintiff's claim was time barred: the swimming pool was an improvement to real property, and since the pool had been added to the property more than 10 years earlier, under the SOR the plaintiff was barred from any claims he might have. On appeal, the appellate court reversed and remanded for trial. The appellate court held that the SOR did not bar all the plaintiff's claims. The court concluded that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself. The swimming pool kit manufactured by Fox and installed by Grobels is a product, a component of the improvement to real estate. A seller or installer of the product is not engaged in the statutorily protected activity of designing, planning or constructing an improvement to real property. Therefore, the lawsuit could proceed against Fox as the designer/manufacturer and against Grobels as the seller of the pool kit. The court noted that any claims against Fox or Grobels regarding the installation were precluded and only the claims related to the design and manufacture of the pool kit were permitted.

Claims against a manufacturer and installer of a residential swimming pool are time barred under the state's statute of repose with respect to installation but not with respect to the product itself. Dziewiecki v. Bakula et al., A-2442-01T2, Sup. Ct. of New Jersey, June 5, 2003.

Janusz Dziewiecki, the plaintiff, became a quadriplegic after intentionally jumping into the Bakula's swimming pool. The plaintiff did not jump from the diving board and mistakenly believed he was jumping into deep water. The pool was installed in 1972 by the prior owner who had purchased the pool from Grobels, an authorized dealer and installer of the pool, which was manufactured by Fox Pools, Inc. The plaintiff sued the homeowners, the pool's installer and distributor, and the manufacturer. After the homeowners settled the claim against them out of court, the trial court granted summary judgment to the installer/distributor and manufacturer under the New Jersey Statute of Repose (SOR). The court held that the plaintiff's claim was time barred: the swimming pool was an improvement to real property, and since the pool had been added to the property more than 10 years earlier, under the SOR the plaintiff was barred from any claims he might have. On appeal, the appellate court reversed and remanded for trial. The appellate court held that the SOR did not bar all the plaintiff's claims. The court concluded that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself. The swimming pool kit manufactured by Fox and installed by Grobels is a product, a component of the improvement to real estate. A seller or installer of the product is not engaged in the statutorily protected activity of designing, planning or constructing an improvement to real property. Therefore, the lawsuit could proceed against Fox as the designer/manufacturer and against Grobels as the seller of the pool kit. The court noted that any claims against Fox or Grobels regarding the installation were precluded and only the claims related to the design and manufacture of the pool kit were permitted.