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Walters v. Owens-Corning Fiberglass Corp.

*fn*: January 8, 1986.

ROBERT ALLEN WALTERS AND SHIRLEY D. WALTERS, PLAINTIFFS-APPELLANTS,
v.
OWENS-CORNING FIBERGLASS CORP., ET AL., DEFENDANTS-APPELLEES



Appeals from the United States District Court for the Northern District of Indiana, Hammond Division. No. 80-C-94 -- James T. Moody, Judge.

Before WOOD, CUDAHY, and POSNER, Circuit Judges.

Per Curiam.

Plaintiffs-appellants Robert and Shirley Walters appeal the district court order granting the defendant-appellees' motions for summary judgment. The district court held that the plaintiffs' actions were barred by Indiana's two-year statute of limitations for personal injuries. For the reasons explained below, we reverse and remand for further proceedings consistent with this opinion.

I

From 1950 to 1975, Robert Walters worked as an asbestos insulation applicator in Indiana and used and installed thermal insulation products containing asbestos. Walters' last exposure to asbestos occurred in 1974. In February 1978, Walters was informed by his physician that he was suffering from an asbestos-related disease. On February 22, 1980, Walters commenced the present action against the defendants, asbestos manufacturers, distributors and sellers, claiming that he had inhaled asbestos fibers from products manufactured, distributed or sold by the defendants and thereby developed asbestosis. The defendants moved for summary judgment on the ground that Walters' cause of action was not brought within Indiana's two-year statute of limitations for actions arising from personal injury. See IND. CODE § 34-1-2-2(1). The district court, citing Braswell v. Flintkote Mines, Ltd., 723 F.2d 527 (7th Cir. 1983), granted the defendants' motions for summary judgment. The Walters contend, citing Indiana's new "discovery" rule for actions caused by protracted exposure to foreign substances, see Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84 (Ind. 1985), that their action is timely.

II

In Braswell v. Flintkote Mines, Ltd., 723 F.2d 527 (7th Cir. 1983), several Indiana plaintiffs filed actions for damages arising from exposure to asbestos manufactured or supplied by the defendants. Some of the plaintiffs had not filed their actions within two years of their most recent exposure to asbestos and, to avoid dismissal under Indiana's two-year statute of limitations, argued that their cause of action did not accrue until they discovered or should have discovered their injuries. Carefully reviewing Indiana case law, we rejected this argument:

Plaintiffs' interpretation of the Indiana law of accrual [of a cause of action], however, contradicts controlling precedent from the Supreme Court of Indiana. . . . .

As this Court's duty is to apply Indiana law, we hold that the causes of action herein accrued not when the injuries were discovered or susceptible of ascertainment, but rather at the time of the wrongful act, which the trial court reasonably concluded to be no later than the most recent exposure to asbestos fiber

723 F.2d at 531-32. (footnote omitted). Judge Swygert, dissenting, suggested that the issue of when a cause of action accrues under Indiana law would best be certified to the Indiana Supreme Court. Braswell, 723 F.2d at 535. Judge Swygert noted that "the usual manifestation period for asbestosis is twenty to thirty years," 723 F.2d at 533 and decried the "mockery of justice" which resulted from a statute of limitations which often expires well "before any manifestation of the disease." 723 F.2d at 533.

In Barnes v. A.H. Robins Company Inc., 476 N.E.2d 84 (Ind. 1984), a diversity case for damages arising from the use of a Dalkon Shield intrauterine device, the Indiana Supreme Court responded to the following question which we certified to it:

When does a cause of action accrue within the meaning of the Indiana Statute of Limitations for personal injury accidents, Ind.Code § 34-1-2-2, and the Indiana Statute of Limitations for Products Liability actions, Ind.Code § 33-1-1.-5-5, when the injury to the plaintiff is caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance?

476 N.E.2d at 85. The Indiana Supreme Court held that in cases when the injury to the plaintiff is caused by a disease which may have been contracted as a result of protracted exposures to a foreign substance, the cause of action accrues "and the statute of limitations . . . commences to run from the date the plaintiff knew or should have discovered that he suffered an ...


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