A frequently relied upon defense in insurance defense cases such as product liability and toxic tort cases in Indiana has been the statute of repose. Plaintiffs had two years from the date they knew or should have known they suffered harm to file a lawsuit based upon the state’s statute of limitations. The statute of repose placed a 10-year limit on how long a plaintiff had to actually discover the harm before the claim would be barred.
Change to Indiana’s statute of repose
Insurance defense counsel relied upon the statute of repose as an effective defense until this past March when the Indiana Supreme Court changed the application of the law. The court found that Section 2 of the Indiana Product Liability Act, and specifically its 10 year statute of repose, did not apply to cases involving protracted exposure to an inherently dangerous foreign substance, such as asbestos. Myers v. Crouse-Hinds div. of Cooper Indus., Inc. et al, No. 49S00-1502-MI-119 (Ind. 2016). Rehearing was denied on April 28, 2016.
Court finds that creating two classes of plaintiffs is unconstitutional
Prior to the decision in Myers, the court found that Section 2 applied only to defendants that mined and sold raw asbestos. Manufacturers of products containing asbestos received protection of the 10-year statute of repose because of its earlier decision in Allied Signal v. Ott, 785 N.E.2d 1068 (Ind. 2003). The Ott decision had essentially provided a defense for the majority of asbestos cases being filed in Indiana in the Marion Superior Court in Indianapolis.
The Myers court found that limiting the application of the statute of repose defense violated the Equal Privileges and Immunities Clause of the Indiana Constitution, in that it created two classes of victims who were similarly situated but applied the statute of repose to only one of those classes. The Meyers decision restored the court’s ruling in Covalt v. Carey Canada, Inc., 543 N.E. 2d 382 (Ind. 1989) which held that the Indiana statute of repose did not apply to cases involving protracted exposure to inherently dangerous foreign substances.
Court cases are destined to rise
A recent review of filings in the Marion Superior Court reflects a new rise of claims for asbestos-related injuries. Since the Myers decision, at least seven new asbestos exposure cases alleging mesothelioma have been filed. In addition, another six asbestos cases alleging some form of lung cancer have also been filed. All of these cases have included product manufacturing defendants.
Learn more from an insurance defense attorney
It would stand to reason that this is only the beginning of a renewed interest in case filings for asbestos matters in Indiana. Insurance carriers and manufacturers with questions about the change in the law or the application of the statute of repose defense to their case should contact Paul S. Steinhofer at McKenna Storer at 312-558-3900.