McCann v. Foster Wheeler 2/28/08 CA2/8

State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B189898

Case Date: 05/21/2008

Preview:Filed 2/28/08

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

TERRY McCANN et al., Plaintiffs and Appellants, v. FOSTER WHEELER, Defendant and Respondent.

B189898 (Los Angeles County Super. Ct. No. BC 336869)

APPEAL from a judgment of the Superior Court for the County of Los Angeles. Jon M. Mayeda, Judge. Reversed.

Waters & Kraus, Paul C. Cook and Michael B. Gurien for Plaintiffs and Appellants.

Sedgwick, Detert, Moran & Arnold and Frederick D. Baker; Gordon & Rees and James G. Scadden for Defendant and Respondent.

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SUMMARY A plaintiff who has resided in California for 30 years was exposed to asbestos during the installation of a boiler in Oklahoma 50 years ago. The boiler was designed and sold by a New York company to a purchaser in Oklahoma. Following his diagnosis with an asbestos-related medical condition several years ago, the California resident brought suit in California against the New York company. The trial court determined that Oklahoma's statute of repose barred the suit. Contrary to that determination, we conclude that choice of law principles dictate the application of California law, which does not bar the suit. FACTUAL AND PROCEDURAL BACKGROUND In the late 1950's, Terry McCann was employed by a construction company at an oil refinery in Oklahoma. While working at the refinery, he was exposed to asbestos during the installation of a boiler designed and manufactured by Foster Wheeler, a New York company. Terry McCann and his wife moved to California in 1975. In April 2005, he was diagnosed with mesothelioma allegedly caused by his exposure to asbestos while working at the refinery in Oklahoma. The McCanns (collectively, McCann) filed a personal injury action against Foster Wheeler and others. Foster Wheeler moved for summary judgment on the ground that Oklahoma's statute of repose applied and barred the lawsuit. Under the Oklahoma statute of repose, a tort action for an injury arising from "the design . . . of an improvement to real property" is barred if brought more than 10 years after substantial completion of the improvement.
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The Oklahoma statute of repose provides: "No action in tort to recover damages [

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