Insulation Found to be Integral to Turbine as Court Grants Renewed Motion for Summary Judgment Based on Statute of Repose U.S. District Court for the Northern District of Illinois, Eastern Division, July 21, 2016

The plaintiff brought this action against defendants, including Westinghouse, for Earl Norberg, her decedent’s, alleged development of lung cancer as a result of his work around asbestos containing products while working at the Joliet and Romeoville Power stations.

The plaintiff’s fact witness was Mr. Norberg’s brother, Howard, who recalled that he and the plaintiff worked at Joliet Power Station from 1963-65 and again in the mid-1970s. Specifically, he testified that workers were insulating a turbine at Unit 9 while Units 7 and 8 were being installed. The turbines were specially designed by Westinghouse for Joliet Power Station. As for the Romeoville site, the plaintiff was alleged to have worked there for approximately 8-12 months in the 1950s while installing handrail and rebar. Westinghouse supplied the Unit 1 turbine at Romeoville.

Westinghouse moved for summary judgment as to the statute of repose after the case had been transferred to the Multi-District Litigation. The court denied the motion and Westinghouse moved to renew its motion for summary judgment. Westinghouse argued that it was entitled to judgment as a matter of law based on the statute of repose. The statute bars claims arising from personal injury against a person “in the design, planning, supervision, observation or management of construction of an improvement to real property after 10 years have lapsed from the time of such act or omission. The court honed in on the two prong standard for the statute of repose. First, was the construction an improvement to real property and the second was whether the activity falls within the purview of section 13-214 (b) or the (ICSR). Here, the parties did not dispute that the activities undertaken by Westinghouse were improvements to real property. However, the plaintiff took the position that Westinghouse “as a supplier of asbestos insulation products is not protected under the ICSR, because the activity of selling or supplying construction products is not enumerated as one of the protected activities under the statute of repose.” The court did not agree with the plaintiff and stated that the plaintiff failed to argue that Westinghouse supplied the insulation separate from the sale of its turbine. In fact, the record illustrated that the insulation was already installed and was “integral” to the turbines. Relying on Illinois Masonic Med. Ctr. v. AC & S and Krueger v. A.P. Green Refractories Co., the court found that insulation was a part of the construction process and not a separate sale activity of Westinghouse to the power station.

The plaintiff also argued that summary judgment should be denied because Mr. Norberg was exposed to asbestos from maintenance and repairs during overhauls at the Romeoville Power Station in the late 1950s or early 1960s. The court agreed that overhaul work would not fall within the ambit of the statute of repose. However, the factual record showed that Westinghouse did not perform the overhaul work. Consequently, summary judgment was granted in favor of Westinghouse as to the statute of repose.

Read the full decision here.


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