Commonwealth Of Kentucky Court of Appeals

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1 RENDERED: July 28, 2006; 2:00 P.M. NOT TO BE PUBLISHED Commonwealth Of Kentucky Court of Appeals NO CA MR JAMES FULTON and LENNA FULTON APPELLANTS APPEAL FROM MCCRACKEN CIRCUIT COURT v. HONORABLE ROBERT J. HINES, JUDGE CIVIL ACTION NO. 98-CI NATIONAL SERVICES INDUSTRIES, INC.; GENERAL ELECTRIC COMPANY; and GARLOCK SEALING TECHNOLOGIES, LLC APPELLEES OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING ** ** ** ** ** BEFORE: BARBER AND MINTON, 1 JUDGES; HUDDLESTON, 2 SENIOR JUDGE. HUDDLESTON, SENIOR JUDGE: James Fulton began working as a carpenter in 1965 and retired in During his long career, Fulton was employed by numerous contractors in western Kentucky and primarily worked at industrial job sites such as power 1 Judge John D. Minton concurred in this opinion prior to his resignation to accept appointment to the Kentucky Supreme Court. Release of the opinion was delayed by administrative handling. 2 Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS

2 plants and large chemical plants. According to Fulton, he spent most of his time either building scaffolds for pipe workers, boilermakers and insulators or building forms in which to pour concrete. In 1998, Fulton was diagnosed with asbestosis. In that same year, Fulton filed a products liability lawsuit 3 in McCracken Circuit Court against numerous companies claiming he had been exposed to insulation, as well as other building materials, that contained asbestos that caused him to develop asbestosis. NATIONAL SERVICES INDUSTRIES, INC. One of the several companies named in Fulton s suit was National Services Industries, Inc. (NSI), a contractor which both installed and removed insulation. On January 14, 2005, NSI moved for summary judgment arguing that Fulton had failed to produce evidence that he had been exposed to any product supplied by, installed by or removed by NSI that substantially contributed to his developing asbestosis. On February 3, 2005, McCracken Circuit Court granted summary judgment in favor of NSI. Fulton s appeal quickly followed. In his brief, Fulton contends that NSI exposed him to insulation that contained asbestos. Fulton attached to his brief documents from the Tennessee Valley Authority (TVA) regarding extensive construction work performed at TVA s 3 Fulton s wife, Lenna, joined in his lawsuit seeking damages for loss of consortium. -2-

3 Paradise power plant in Drakesboro, Kentucky (hereinafter referred to as TVA Paradise ). The documents reveal that, beginning in 1962, NSI installed insulation at TVA Paradise which, according to Fulton, contained asbestos. Fulton also relies upon the testimony of Bobby Gibson, who began working at TVA Paradise in 1962 and retired in Gibson has testified in a number of asbestos-related lawsuits over the past several years. According to Gibson s prior testimony, in the 1960 s, NSI installed insulation which contained asbestos virtually everywhere, including the turbines, at TVA Paradise. Fulton testified and reiterates on appeal that he worked at TVA Paradise in the early 1980s building scaffolding around turbines so other workers could remove the insulation that covered them. This produced vast quantities of dust, and Fulton contends that he was exposed to the dust for many months. Fulton admits that he has no evidence that the insulation installed by NSI during the 1960s was the same insulation removed by workers in the 1980s; however, he points out that NSI has produced no evidence that the insulation it installed in the 1960s had been removed prior to the time that he worked at TVA Paradise. In addition, Fulton argues that in the early 1980s he had worked at a chemical plant located in Calvert City, Kentucky, and owned by Air Products & Chemicals, Inc. While he -3-

4 was working at Air Products, he saw employees from NSI perform insulation abatement. Fulton testified that he knew that NSI was the company performing the abatement because he saw trailers displaying NSI s logo at the site. According to Fulton, NSI negligently performed the abatement. Because the insulation contained asbestos, NSI built containment units around the areas where it was removing insulation to keep asbestos from contaminating the plant. However, Fulton testified that he was told that NSI had left a containment unit open on one side. In addition, he testified that some of the units had holes in them. As a result, he says, he was exposed to asbestos. Furthermore, after the abatement process was finished, NSI failed to disassemble and remove the containment units. According to Fulton, he and his fellow carpenters had to tear down and remove the units, and, in doing so, he was exposed to asbestos since NSI failed to clean up the units leaving them contaminated with asbestos-laden insulation. Fulton testified by deposition that this abatement project took place sometime in the 1980s, but he was unsure when. When pressed about the timeframe, he estimated that the abatement may have taken place between 1985 and Now, in his brief, Fulton is adamant that NSI performed insulation abatement at Air Products from 1985 until

5 NSI produced documents that had been submitted by Air Products to the Kentucky Department of Environmental Protection, Division of Air Quality which revealed that United Thermal Industries, another insulation contractor, engaged in insulation abatement at Air Products Calvert City plant from the beginning of 1987 until the end of In addition, NSI produced an affidavit from Boyce D. Helms, Air Products environmental manager from 1979 to 2000, who stated that he remembered United Thermal Industries performing insulation abatement but had no recollection of NSI. NSI also produced an affidavit from Lewis C. Toney, an environmental engineer with Air Products from 1978 to Toney swore that he worked with contractors who performed abatement at Air Products and signed the reports that were sent to the Department of Environmental Protection. He also said that United Thermal Industries performed essentially all of the insulation abatement at Air Products; moreover, he had no recollection that NSI had been involved in the abatement. Based on these documents and affidavits, NSI argued that it was not the contractor that performed insulation abatement at Air Products in the 1980s. On appeal, Fulton argues that neither the documents from the Department of Environmental Protection nor the affidavits from Boyce and Toney refute his testimony that from 1985 to 1987 NSI negligently engaged in insulation abatement at -5-

6 Air Products. Fulton argues that just because the documents show that United Thermal Industries engaged in abatement from 1987 to 1989 does not mean that NSI did not engage in abatement at Air Products as well. According to Fulton, neither the documents nor the affidavits resolve the factual issue whether NSI engaged in insulation abatement at Air Products. Thus, Fulton reasons that the circuit court erred in granting summary judgment in NSI s favor. When considering a motion for summary judgment, the circuit court must view the record in a light most favorable to the party opposing the motion, in this case, Fulton, and must resolve all doubts in his favor. 4 However, the party opposing the motion must present, at the very least, some affirmative evidence demonstrating the existence of a genuine issue of material fact that requires a trial. 5 The circuit court should not grant summary judgment if any issue of material fact exists. 6 We, on the other hand, must determine whether the circuit court correctly found that no genuine issue of material fact exists and that, as a matter of law, the moving party was entitled to 4 Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). 5 6 Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992). Steelvest, Inc. v. Scansteel Service Center, Inc., supra, note

7 judgment in its favor. 7 Since findings of fact are not in issue, we review the circuit court s decision de novo. 8 Regarding Fulton s alleged exposure to asbestos at TVA Paradise, Bobby Gibson testified in a prior asbestos-related lawsuit that the turbines at TVA Paradise were periodically dismantled for routine maintenance. This maintenance required workers to remove the old insulation so others could have access to the turbines. According to Gibson, once the maintenance was completed, workers would install new insulation. Based on this testimony, all or at least part of the insulation covering the turbines at TVA Paradise would have been removed and replaced with new insulation several times prior to the 1980s when Fulton worked there. And, while the record contains evidence that NSI installed insulation at TVA Paradise in the 1960s, it contains no evidence that NSI installed insulation at TVA Paradise after the 1960s. The record contains no evidence, and Fulton points to none, that the insulation removed from the turbines in the 1980s was the same insulation that was installed by NSI in the 1960s. Thus, the circuit court properly granted summary judgment in NSI s favor regarding Fulton s exposure to asbestos at TVA Paradise. 7 8 Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Id. -7-

8 Fulton testified unequivocally that he saw NSI perform insulation abatement on pipes that were labeled asbestos at Air Products between 1985 and 1987, and he testified that he was exposed to dust from the insulation that had been removed. Although there is evidence that United Thermal Industries performed abatement at Air Products from 1987 to 1989, this evidence does not compel the conclusion that NSI never performed abatement at Air Products. Resolving all doubts in Fulton s favor, his testimony was sufficient to raise genuine issues of material fact as to (1) whether NSI performed abatement at Air Products prior to United Thermal Industries and (2) whether Fulton was exposed to dust from the insulation that NSI allegedly removed. Accordingly, the circuit court erred when it granted summary judgment in NSI s favor regarding Fulton s alleged exposure to asbestos at Air Products. GENERAL ELECTRIC COMPANY Another defendant named in Fulton s complaint is the General Electric Company (GE). On November 29, 2004, GE filed a motion for summary judgment claiming that no genuine issue of material fact existed regarding proximate cause. In other words, GE argued that Fulton had produced no evidence that his exposure to any GE product was a substantial factor in causing him to develop asbestosis. The circuit court granted summary -8-

9 judgment in GE s favor on February 3, Fulton seeks reversal of that judgment. Fulton testified that he worked at TVA Paradise for approximately six months in 1983 and for another six months in While at TVA Paradise, he spent twenty-five percent of his time in a room that contained two turbines. He testified that at one point he built a scaffold around one turbine so other workers could remove insulation from the turbine. He claims that he was in the room when the insulation was removed and that the removal created vast amounts of dust. Again, Fulton relies on the testimony of Bobby Gibson given in a prior asbestos-related lawsuit. He claims, based on Gibson s testimony and documents from TVA, that the turbines at TVA Paradise were manufactured by GE. Relying on this testimony and these documents, Fulton argues that he has produced enough evidence from which a jury could reasonably conclude that he was exposed to products manufactured by GE that contained, at GE s insistence, asbestos. Thus, he reasons, the circuit court erred in granting summary judgment in GE s favor. Bobby Gibson testified in a previous asbestos-related case that at least two of the turbines at TVA Paradise had been manufactured by GE. And, while there is no evidence that the turbines manufactured by GE contained asbestos, Gibson testified that the insulation installed around the turbines contained -9-

10 asbestos and that such insulation was put in place because GE specified its use. Moreover, Fulton testified that he was exposed to dust from insulation that was removed from the turbines. Gibson s and Fulton s testimony was sufficient to raise genuine issues of material fact regarding Fulton s exposure to insulation dust at TVA Paradise: (1) did the insulation that was removed contain asbestos, and (2) if so, did GE specify its use on the turbines at TVA Paradise. Therefore, the circuit court erred when it granted summary judgment in GE s favor. GARLOCK SEALING TECHNOLOGIES, LLC One of the companies named in Fulton s complaint was Garlock Sealing Technologies, LLC, a limited liability company that manufactured industrial sealant products including gaskets. On January 10, 2005, Garlock filed a motion for summary judgment arguing that the record contains no evidence that Fulton was exposed to any of its products which contained asbestos. On February 3, 2005, the circuit court granted judgment in Garlock s favor. On appeal, Fulton points out that he testified that he worked with gaskets which contained asbestos and that some of the gaskets were manufactured by Garlock. Fulton also points to the testimony of Leon Barrett, who worked with Fulton for a number of years. Barrett testified that not only were both he -10-

11 and Fulton exposed to gasket material manufactured by Garlock, it contained asbestos. He swore that he and Fulton cut and used such gasket material in their carpentry work. In addition, Fulton contends that Garlock presented no evidence to contradict his and Barrett s testimony. Therefore, Fulton reasons, summary judgment was inappropriate. We agree with Fulton that his and Barrett s testimony raised genuine issues of material fact sufficient to withstand a motion for summary judgment. The circuit court erred when it granted summary judgment in Garlock s favor. CONCLUSION We affirm that part of the summary judgment in favor of NSI relating to Fulton s exposure at TVA Paradise. We reverse that part of the summary judgment in NSI s favor relating to Fulton s alleged exposure at Air Products and remand for further proceedings. We also reverse the summary judgments in favor of GE and Garlock and remand for further proceedings. MINTON, JUDGE, CONCURS. BARBER, JUDGE, CONCURS IN PART AND DISSENTS IN PART AND FILES SEPARATE OPINION. BARBER, JUDGE, CONCURRING IN PART AND DISSENTING IN PART: I concur with reversal of the summary judgment as it pertains to Appellees GE, NSI, and Garlock, but I respectfully dissent from the portion of the opinion that affirms the summary -11-

12 judgment granted to the NSI for work at the TVA as I believe there are issues of fact that should be resolved by a jury. BRIEF AND ORAL ARGUMENT FOR APPELLANTS: Kenneth L. Sales SALES, TILLMAN, WALLBAUM, CATLETT & SATTERLEY Louisville, Kentucky ON BRIEF: Joseph D. Satterley Paul J. Kelley BRIEF AND ORAL ARGUMENT FOR APPELLEE, NATIONAL SERVICES INDUSTRIES: John B. Moore PHILLIPS PARKER ORBERSON & MOORE, PLC Louisville, Kentucky ON BRIEF: William P. Swain Ben T. White BRIEF FOR APPELLEE, GENERAL ELECTRIC COMPANY: Scott T. Dickens TACHAU MADDOX HOVIOUS & DICKENS PLC Louisville, Kentucky ORAL ARGUMENT FOR APPELLEE, GENERAL ELECTRIC COMPANY: Gregory Scott Gowen BRIEF AND ORAL ARGUMENT FOR APPELLEE, GARLOCK SEALING TECHNOLOGIES, LLC: John K. Gordinier PEDLEY ZIELKE GORDINIER & PENCE, PLLC Louisville, Kentucky -12-

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