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Joseph M. Vicknair; Anthony Whitaker; Theresa Zefiretto, As Personal v. Phelps Dodge Industries

February 18, 2011

JOSEPH M. VICKNAIR; ANTHONY WHITAKER; THERESA ZEFIRETTO, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF LIBORIO ZEFIRETTO; ROBERT ULSHAFER; JOHN SEHR; RAY BRUNET, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF EUGENE P. BRUNET, DECEASED; VIOLET COOPER, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF WILLIAM H. COOPER, DECEASED; JANICE HILBORN, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF AUGUST FREEMAN, DECEASED; MILDRED PASTVA, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF JOHN G. PASTVA, DECEASED; CHERYL PERNELL, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF EDDIE PERNELL, SR., DECEASED; LISA SANGERMAN, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF RICHARD A. CHRISTOFRETTI, DECEASED; MARGARET SWYGERT, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF CROMWELL SWYGERT, DECEASED; RUBY TODD, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF DAVID D. TODD, DECEASED; RONA POURIER, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF HOBERT ECOFFEY, DECEASED; AND PATRICK BLANDO, INDIVIDUALLY, AND AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF WENDELL BLANDO, DECEASED;
PLAINTIFFS AND APPELLANTS
v.
PHELPS DODGE INDUSTRIES, INC.; A.H. BENNETT COMPANY; A.W. KUETTEL & SONS, INC.; BORDER STATES INDUSTRIES, INC.; COLUMBIA BOILER CO.; CRANE CO,; CLEAVER-BROOKS, DIVISION OF AQUA-CHEM, INC.; DOSSERT CORPORATION; DUCTSOX CORPORATION F/K/A FROMMELT SAFETY PRODUCTS; SUPERIOR ESSEX GROUP (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ESSEX INTERNATIONAL, INC.); ELECTRIC SUPPLY CORP.; EXCELSIOR, INC.; FOSTER WHEELER, LLC; GREENE, TWEED & COMPANY; HOUSTON SPECIALTY WIRE & CABLE CORP.; OAKFABCO F/K/A KEWANEE BOILER CORPORATION; ROCKBESTOS-SURPRENANT CABLE CORP. (F/K/A THE ROCKBESTOS COMPANY); RILEY STOKER CORPORATION; ROBERTSON CECO CORPORATION, F/K/A H. H. ROBERSON COMPANY; SPRINKMAN SONS CORPORATION; WEIL MCLAIN COMPANY; ZURN INDUSTRIES, INC.; UNITED CONVEYOR CORPORATION; S.O.S. PRODUCTS COMPANY, INC.; FOSECO, INC.; FUEL ECONOMY ENGINEERING, CO.; BURNHAM LLC, F/K/A BURNHAM CORPORATION; BRYAN STEAM CORPORATION; CERTAIN-TEED CORPORATION; FOSTER PRODUCTS CORPORATION (AS SUCCESSOR-IN-INTEREST TO FOSTER PRODUCTS DIVISION OF H.P. FULLER COMPANY AND TO THE BENJAMIN FOSTER DIVISION OF AMCHEM PRODUCTS, INC.); GRAYBAR ELECTRIC; H.P. FULLER COMPANY; HOBART BROTHERS CO.; INDUCTOTHERM INDUSTRIES, INC.; THE JAMAR COMPANY (INDIVIDUALLY AND AS SUCESSOR-IN-INTEREST AND LIABILITY TO THE WALKER-JAMAR COMPANY); JOHN CRANE, INC. (SUCCESSOR-IN-INTEREST TO JOHN CRANE-HOUDAILLE, INC. AND CRANE PACKING COMPANY); KELSEY-HAYES GROUP (A DIVISION OF VARITY CORPORATION); LINDE, INC., F/K/A BOC GROUP AND/OR AIRCO, INC.; LINCOLN ELECTRIC CO.; PRAXAIR DISTRIBUTION, INC.; RCH NEWCO II; RHONE-POULENC, INC. (AS SUCCESSOR-IN-INTEREST TO BENJAMIN FOSTER, A DIVISION OF AMCHEM PRODUCTS COMPANY); STEMMERICH SUPPLY CO.; THERMO ELECTRIC CO. (N/K/A EXTECO, INC.); AND UNION CARBIDE CORPORATION, DEFENDANTS AND APPELLEES AND 999 QUEBEC, INC. (A/K/A INTERNATIONAL BOILER WORKS COMPANY); ACANDS, INC. (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO ARMSTRONG CONTRACTING & SUPPLY, INC. AND KEASBY & MATTISON COMPANY); A.L. CRUMP AND COMPANY, INC.; AMERICAN STANDARD, INC.; A.P.I., INC. (A/K/A A.P.I. COMPANY OF MINNESOTA); A.W. CHESTERTON COMPANY; ANCHOR PACKING COMPANY; APOLLO PIPING & SUPPLY; ASBESTOS CORPORATION, LTD.; ATLAS TURNER, INC.; AUSTRALIAN BLUE ASBESTOS, PTY.; BELL & GOSSET; BELL ASBESTOS MINES, LTD.; BUILDING SPRINKLER COMPANY, INC.; CBS CORPORATION (F/K/A WESTINGHOUSE ELECTRIC CORPORATION); CHROMALOX (A DIVISION OF EMERSON ELECTRIC COMPANY); COMBUSTION ENGINEERING, INC. (SUCCESSOR-IN-INTEREST TO M.H. DETRICK COMPANY, WALSH REFRACTORY CORPORATION AND REFRACTORY AND INSULATION CORPORATION); CROWN CORK & SEAL COMPANY, INC. (SUCCESSOR-IN-INTEREST TO MUNDET CORK CORPORATION); CSR, LTD. (A/K/A COLONIAL SUGAR REFINING COMPANY, LTD.) INDIVIDUALLY AND AS AN ALTER-EGO OF AUSTRALIAN BLUE ASBESTOS, PTY.; DAKOTA WELDING SUPPLY; DELTAK, L.L.C. (A UNIT OF JASON INC.); DETROIT STOKER; DRAXTON SALES; DRESSER INDUSTRIES, INC.; DURABLA MANUFACTURING COMPANY; E.J. LAVINO AND COMPANY, INC.; ELECTRIC SUPPLY CORP.; EMERSON ELECTRIC CO.; ERICSSON, INC. (F/K/A CABLEC CORP.) (AS SUCCESSOR-IN-INTEREST TO ANACONDA WIRE & CABLE COMPANY); F.R.P. PRODUCTS, LTD.; F & C SUPPLY, INC.; FARGO-MOORHEAD INSULATION COMPANY; FIREBRICK SUPPLY CO.; FISHER GOVERNOR CO.; FLINTKOTE COMPANY (INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO FLINTKOTE MINES, LTD.); FLINTKOTE MINES, LTD.; GARLOCK, INC.; GENERAL ELECTRIC COMPANY; GEORGE T. WALKER & CO., INC.; GEORGIA-PACIFIC CORP.; HENRY VOGT MACHINE COMPANY; HERCULES CHEMICAL COMPANY, INC.; HICKORY INSULATION CO.; HONEYWELL, INC.; HOPEMAN BROTHERS, INC.; ILLINOIS INSULATION CONTRACTING COMPANY, INC. (F/K/A ILLINOIS ROOFING & INSULATION COMPANY); INGERSOLL-RAND COMPANY; INSULATION SERVICES, INC.; INTERNATIONAL VERMICULITE CO.; JERGUSON GAGE & VALVE; J.H. FRANCE REFRACTORIES COMPANY; JOHNSTON BOILER CO.; LAC D'AMIANTE DU QUEBEC, LTEE. (F/K/A LAKE ASBESTOS OF QUEBEC); LOCHINVAR; M.W. KELLOGG COMPANY; MACARTHUR COMPANY; MANDAN ELECTRIC SUPPLY; MARMON CORPORATION; MCMASTER CARR SUPPLY COMPANY; MCNEIL REFACTORIES, INC.; MELLEMA COMPANY; METROPOLITAN LIFE INSURANCE COMPANY; MINE SAFETY APPLIANCE COMPANY; MINNESOTA MINING & MANUFACTURING; NORTHERN PLUMBING SUPPLY, INC.; THE OKONITE COMPANY, INC.; OWENS-ILLINOIS, INC.; PARKER BOILER CO.; PAUL A. DOUDEN; PFIZER, INC.; PIPE, VALVE & FITTINGS COMPANY; POWER PROCESS EQUIPMENT, INC.; QUIGLEY CO., INC.; QUIN-T CORPORATION; RAPID-AMERICAN CORPORATION; RESEARCH COTTRELL, INC.; ROCKWELL INTERNATIONAL CORPORATION; ROME CABLE CORP.(A SUBSIDIARY OF ROME GROUP INC.); ROUGHRIDER SUPPLY; RYALL ELECTRIC SUPPLY CO.; SAMUEL MOORE & CO.; SMITH-SHARPE COMPANY; SEPCO CORPORATION; SUPERIOR BOILER WORKS, INC.; SUSSMAN ELECTRIC BOILERS; THE TRANE COMPANY (A DIVISION OF AMERICAN STANDARD INC.); U.S. FILTER CO.; UNION BOILER CO.; UNIROYAL, INC.; AND VICTOR H. LEEBY COMPANY, DEFENDANTS



Appeal from the District Court of Morton County, South Central Judicial District, the Honorable Robert O. Wefald, Judge. AFFIRMED.

The opinion of the court was delivered by: VandeWalle, Chief Justice.

N.D. Supreme Court

Vicknair v. Phelps Dodge Industries, Inc.,

2011 ND 39

This opinion is subject to petition for rehearing. [Go to Documents] [Download as WordPerfect]I

Opinion of the Court by VandeWalle, Chief Justice.

Vicknair v. Phelps Dodge Industries, Inc.

No.20100029

[¶1] Joseph Vicknair and twelve other plaintiffs appealed from a district court summary judgment dismissing their asbestos-related product liability actions against Phelps Dodge Industries, Inc., and numerous other companies on the grounds that the applicable statutes of limitations had run on their claims. We affirm, concluding the district court did not err in ruling North Dakota's six-year statute of limitations for personal injury actions did not apply to the plaintiffs' claims and in refusing to allow additional time for discovery before ruling on the summary judgment motion.

I [¶2] In December 2002, the plaintiffs were part of a group of individuals who brought actions in district court against manufacturers, sellers, and distributors of asbestos-containing products, claiming they were injured by exposure to those products. All of the plaintiffs involved in this appeal are residents of states other than North Dakota and do not claim that their exposure to asbestos-containing products occurred in North Dakota. The numerous corporate defendants are residents of various states, including North Dakota.

[¶3] The defendants moved to dismiss the plaintiffs' claims, arguing North Dakota was an inconvenient forum to conduct the litigation. The district court granted the motions and dismissed the claims without prejudice. The plaintiffs appealed, arguing the court erred in dismissing the claims based upon forum non conveniens because the statutes of limitations had run in all other jurisdictions except North Dakota. This Court reversed the judgment dismissing the plaintiffs' claims and remanded for further proceedings, concluding the availability of an alternate forum is a prerequisite to application of forum non conveniens and "an adequate alternative forum does not exist if the statute of limitations has expired in the proposed alternative forum." Vicknair v. Phelps Dodge Indus., Inc., 2009 ND 113, ¶ 13, 767 N.W.2d 171. We expressly cautioned, however, that our decision "does not necessarily mean North Dakota's applicable statute of limitations will govern in this case." Id.

[¶4] On remand following the first appeal the defendants again moved for summary judgment, arguing that the applicable statutes of limitations had run on all of the plaintiffs' claims. The plaintiffs conceded that the applicable statutes of limitations in all other potential jurisdictions, which ranged from one to four years, had run on their claims. They argued, however, that the district court should apply the "escape clause" of the Uniform Conflict of Laws--Limitations Act, N.D.C.C. § 28-01.2-04, and apply North Dakota's longer six-year statute of limitations to their claims. Alternatively, the plaintiffs requested that the court permit additional time for discovery before ruling on the motion for summary judgment. The district court concluded the escape clause did not apply and the plaintiffs' claims were barred by the statutes of limitations. Judgment was entered dismissing the plaintiffs' claims with prejudice.

II

[¶5] The plaintiffs contend the district court erred in concluding that the escape clause in N.D.C.C. § 28-01.2-04 did not apply and that North Dakota's six-year personal injury statute of ...


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