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No. 87-146 IN THE SUPREME COURT OF THE STATE OF MONTANA 1987

DALE SCHAFFER, as the Personal Representative of the Estate of Charles A. Hansen, MICHAEL J. HANSEN, GARY A. HANSEN and MARY ELLEN CHEFFMORE , Plaintiffs and Appel.lants,

CHAMPION HOME BUILDERS COMPANY, Defendant and Respondent.

APPEAL FROM:

District Court of the Third Judicial District, In and for the County of Powell, The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD: For Appellants: Knight, Dahood, McLean Anaconda, Montana For Respondent : Poore, Roth
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Everett; Edward G. Beaudette,

Robinson; John P. Davis, Butte, Montana

Submitted on Briefs:
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Oct. 16, 1987

Decided: December 31, 1987
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Filed:

Mr. Chief Justice J. A. Turnage delivered the Opinion of the Court. Plaintiffs appeal the summary judgment of the Third Judicial District, Powell County. The judgment dismissed plaintiffs' wrongful death and survival complaint which was not filed until one day after the statute of limitations had expired. We affirm. The parties present three issues for our review: 1. Did the District Court abuse its discretion when it dismissed plaintiffs' wrongful death and survival actions? 2. Did the District Court abuse its discretion when it denied relief from judgment under Rule 60 (b)(I), M.R.Civ.P., for mistake, inadvertence, surprise or excusable neglect? 3. Did defendant Champion waive the affirmative defense of statute of limitations? Charles Hansen was a professional painter. He had a family history of emphysema and asthma, and a personal history of smoking. In May 1977, Hansen and his wife moved into a new mobile home they had purchased from Gold Star Homes. The mobile home was manufactured by Champion Home Builders Company (Champion). Throughout 1978, Hansen was treated for emphysema and chronic obstructive pulmonary disease, as shown by an increased chest diameter resulting from long-term obstruction of air flow. He also displayed marked bronchialreactions to paint fumes. During multiple visits to his treating physician in 1978, Hansen never mentioned the onset of any breathing problems in his mobile home. Chest X-rays taken on January 6, 1978, and again on August 1, 1978, revealed no significant changes in Hansen's lung condition. However, by 1979 Hansen's health had deteriorated. In June 1979, he was diagnosed as having congestive heart failure. He was also repeatedly treated for acute bronchial asthma. Hansen thought that formaldehyde gas in the mobile

home was causing his asthma. He moved out of the home in July 1979. By January 1980, Hansen was bedridden and on an oxygen breather. He died of acute bronchial spasm and respiratory failure on February 27, 1980, at age fifty-seven. His autopsy revealed scarred lungs, narrowed lumens of the bronchi, and moderate-to-severe arteriosclerosis. Plaintiff Schaffer is the personal representative of Hansen's estate. Plaintiffs Michael J. Hansen, Gary A. Hansen and Mary Ellen Cheffmore are Hansen's children and heirs. They sought a survival and wrongful death action against Gold Star and Champion. Plaintiffs claimed that Hansen's condition was caused by formaldehyde gas released from the particle board and plywood in the mobile home. Plaintiffs requested recovery under the theories of negligence, misrepresentation, breach of implied warranty and strict liability. Plaintiffs state that their complaint was mailed from Anaconda, Montana, to Deer Lodge, Montana, on February 23, 1983. However, the complaint was not filed until March 1, 1983. On November 19, 1986, Champion moved for sununary judgment on the grounds that plaintiffs' claims were barred by the three-year tort statute of limitations. The applicable statute of limitations for this action is

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Montana Law