Indiana Supreme Court Rules in Favor of Widow of Alleged Asbestos Victim, Allows Claim Against Contractor to Proceed

309px-TVA_phosphate_smelting_furnace.jpgAfter her husband allegedly died from the effects of asbestos exposure, an Indiana woman filed suit against a company that provided services to his former employer. Her wrongful death lawsuit in Gill v. Evansville Sheet Metal Works, Inc. asserted claims for products liability and contractor negligence. Although the trial court dismissed both claims, and the Court of Appeals affirmed, the Indiana Supreme Court allowed the case to proceed on the contractor negligence claim.

Gale Gill worked for Aluminum Company of America, or Alcoa, at its plant in Newburgh, Indiana from approximately 1963 until 1986. As a “pot room worker,” he was tasked with the operation, maintenance, and repair of smelting pots. He allegedly experienced asbestos exposure during his time at the plant as a result of other people using and handling products that contained asbestos. In 2004, doctors diagnosed him with an asbestos-related illness. He died of lung cancer on May 4, 2005.

Sharon Gill, Gale Gill’s wife, filed suit against an Alcoa contractor, Evansville Sheet Metal Works, Inc. (ESMW), on May 4, 2007. ESMW allegedly provided services to Alcoa at the same work site where Gale Gill had all or part of his asbestos exposure. The exact time and location of ESMW’s alleged work remains undetermined, although all parties agree that any work that might have caused asbestos exposure occurred prior to 1989. The lawsuit went into the Mass Tort Asbestos Litigation Docket in Marion County, where it became subject to a stay.

ESMW moved for initial summary judgment under Marion County’s local rules, which allows limited summary judgment motions prior to discovery. It argued that both of Gill’s claims were barred by statutes of repose, which are similar to statutes of limitation. The court granted summary judgment on the products liability claim, but denied it on the contractor negligence claim. After a second summary judgment attempt, the court dismissed Gill’s contractor negligence claim, holding that installation or removal of asbestos-containing products constitutes an “improvement to real property” as defined in the construction statute of repose (CSoR). This meant that the claim was barred by a requirement to bring suit within ten years of “substantial completion of the improvement,” which was agreed to be 1989 at the latest.

The Indiana Supreme Court took up the definition of “improvement to real property” in the CSoR as a matter of first impression. After reviewing other states’ attempts to define “improvements to real property,” the court adopted a “commonsense approach” with four key factors:

1. Permanent addition or improvement to real property;
2. Enhancement of capital value;
3. Requires use of labor or money; and 4. Intent to improve the use or value of the property, more so than with regular repairs.

Based on this definition, the court concluded that ESMW had not made a prima facie case that its work was an “improvement to real property” at the Alcoa plant, and that a genuine issue of material fact therefore existed. It reversed the earlier judgments and remanded the case.

The attorneys at Parr Richey Obremskey Frandsen & Patterson represent the interests of Indiana work-related accident victims and their families, helping them to obtain compensation for their damages. To schedule a free and confidential consultation with one of our lawyers, contact us today online or call (888) 532-7766.

More Blog Posts:

Indiana Court Allows Son’s Suit Against Father for Auto Accident Injuries to Proceed, Indiana Injury Lawyer Blog, July 19, 2012
Photo credit: ‘TVA phosphate smelting furnace’ by Alfred T. Palmer [Public domain], via Wikimedia Commons.