In Graver v. Foster Wheeler Corp., 2014 Pa. Super. 132, the Superior Court of Pennsylvania held that the statute of repose applicable to designers and constructors of improvements to real property applied to asbestos claims. The plaintiff’s decedent had worked at a Pennsylvania Power and Light Plant for more than 25 years beginning in the 1980s. He eventually died of mesothelioma. Among other defendants, the plaintiff sued Foster Wheeler, which had designed a boiler for the plant in the 1950s. The plaintiff contended that the deceased’s mesothelioma was caused by exposure to asbestos present in the boiler.
Foster Wheeler moved for judgment, arguing that the claim was barred by the 12-year statute of repose. The trial court agreed that the boiler constituted an improvement to real property but declined to apply the statute of repose based on a statement by the Pennsylvania Supreme Court in Abrams v. Pneumo Abex Corp., 981 A.2d 198 (Pa. 2009), that “no statutory right of repose exists with respect to asbestos cases.” In a subsequent trial, the jury returned a verdict in favor of the plaintiff.
The Superior Court reversed the judgment, holding that the language in Abrams did not preclude the application of the statute of repose. It found that the Abrams case had not addressed the statute of repose at issue because the case did not concern claims related to improvements to real property. It did not take the Supreme Court’s statement as a blanket prohibition of statutes of repose in asbestos cases, especially since such a declaration would conflict with a plain reading of the statute.
The Superior Court also rejected the plaintiff’s argument that the statute of repose conflicted with and was superseded by a later-enacted statute of limitations. The court found that both statutes could be given effect without conflict and that it was not the function of the judiciary to create an asbestos exception to the statute of repose.
Graver illustrates the peril of taking loose language from court opinions too seriously. The Abrams case did not even involve a statute of repose, much less the particular statute at issue. The Superior Court recognized that giving effect to the Supreme Court’s language outside the context in which it was written would create a conflict with the statutory provision.
The opinion is of great significance to design and construction professionals in Pennsylvania. Asbestos has not been used in building projects for decades. It is likely that the vast majority of asbestos-related claims against design and construction professionals will be precluded by the statute of repose.
(Sedgwick Dallas Partner Kiki Karos tried the case and argued the appeal for Foster Wheeler, and Special Counsel Vance Wittie helped with the briefing.)