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ATTORNEYS FOR APPELLANT Linda George W. Russell Sipes Todd Barnes Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Ross E. Rudolph James B. Godbold Joseph H. Langerak IV Evansville, Indiana

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Indiana Supreme Court
_________________________________ No. 49S05-1111-CV-672 SHARON GILL, ON HER OWN BEHALF AND ON BEHALF OF THE ESTATE OF GALE GILL,

In the

FILED
Jun 25 2012, 11:01 am
of the supreme court, court of appeals and tax court

CLERK

Appellant (Plaintiff below), v. EVANSVILLE SHEET METAL WORKS, INC., Appellee (Defendant below). _________________________________ Appeal from the Marion Superior Court, No. 49D02-9801-MI-0001-357 The Honorable Theodore M. Sosin, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 49A05-0912-CV-699 _________________________________ June 25, 2012 Sullivan, Justice. The plaintiff claims that her husband's death was caused by the defendant's negligence in installing or removing asbestos-containing materials. The trial court ruled for the defendant because the claim had not been brought within the time Indiana law requires for a claim arising from the construction of an "improvement to real property." We reverse the trial court because

there is a genuine issue of material fact as to whether the defendant's work constituted an "improvement to real property," as that phrase is commonly understood. Background

Gale Gill was employed from at least 1963 until 1986 by Aluminum Company of America ("Alcoa") in Newburgh, Indiana, where he was a "pot room worker" responsible for operating, repairing, and maintaining smelting pots. Over the course of his employment, Gale allegedly was exposed to and inhaled asbestos fibers while asbestos-containing products were being handled and used by others. He was diagnosed with an asbestos-related disease in 2004 and died of lung cancer on May 4, 2005. Evansville Sheet Metal Works, Inc. ("ESMW"), allegedly worked as a contractor for Alcoa at "a common work site with [Gale] Gill where materials containing asbestos were present and/or used." Appellant's App. 95. It is unclear exactly when this alleged work occurred, but it is undisputed that any ESMW project through which Gale might have been exposed to asbestos was substantially completed by 1989.

On May 4, 2007, Sharon Gill filed a complaint in Marion Superior Court against ESMW and eighteen other defendants, asserting wrongful-death claims based on several legal theories. As to ESMW, Gill sought damages on theories of products liability and contractor negligence.

The complaint was placed on the Marion County Mass Tort Asbestos Litigation Docket, thereby triggering specific local rules applicable in asbestos cases. See LR49-TR01-ASB Rule 700. The case was stayed under the local rules because it was neither exigent nor set for trial. LR49-TR40 Rule 711(H). Hardly any activity occurs when a case is stayed. But an exception to this principle is an "initial summary judgment motion" under Local Rule 714, which gives a party in a stayed case a limited opportunity to seek summary judgment prior to engaging in any discovery. LR49-TR56 Rule 714.

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ESMW sought initial summary judgment on grounds that Gill's product-liability and contractor-negligence claims were barred by the product-liability statute of repose1 and the construction statute of repose ("CSoR"),2 respectively. The trial court granted ESMW's motion as to the product-liability claim, but it denied the motion as to the contractor-negligence claim because there was a genuine issue of material fact as to whether the CSoR applied.

A few months later, ESMW filed a renewed initial summary judgment motion, again arguing that the contractor-negligence claim was barred by the CSoR.3 Gill responded that ESMW had failed to demonstrate that it had been involved in the construction of an "improvement to real property," as required by the statute. In turn, ESMW maintained that the complaint established this requirement because Gill had alleged that ESMW had "applied or removed asbestos containing products which caused injury to [Gale] Gill." Appellant's App. 25. The trial court agreed with ESMW and held that the application or removal of asbestos-containing products or asbestos-insulated equipment by a contractor is an improvement to real property. Gill appealed the trial court's ruling that the CSoR barred her contractor-negligence claim, and the Court of Appeals affirmed. Gill v. Evansville Sheet Metal Works, Inc., 940 N.E.2d 328, 330 (Ind. Ct. App. 2010). But, unlike the trial court, the panel declined to resolve whether ESMW's work constituted an improvement to real property and held that, "regardless whether there was an improvement to real estate, [Gill] brought her claim outside the ten year period stipulated in the [CSoR] and therefore, her claim is barred." Id. at 334.

Gill sought, and we granted, transfer, Gill v. Evansville Sheet Metal Works, Inc., ___ N.E.2d ___ (Ind. 2011) (table), thereby vacating the opinion of the Court of Appeals, Ind. Appellate Rule 58(A).

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Ind. Code

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