Metropolitan News-Enterprise


Monday, March 3, 2008


Page 1


C.A. Rejects Application of Sister State Statute of Repose




A trial judge erred in applying another state’s statute of repose to dismiss a tort claim by a longtime California resident against a defendant based in a third state, the Court of Appeal for this district has ruled.

Div. Eight Thursday reinstated a suit by Terry McCann and his wife against manufacturer Foster Wheeler. McCann, a California resident since 1975, contends that his asbestos-related cancer, or mesothelioma, is a result of exposure during the installation of a boiler in Oklahoma 50 years ago.

Foster Wheeler, a New York company, allegedly designed and manufactured the boiler, which was installed at the Oklahoma refinery where McCann worked in the late 1950s. McCann’s condition was diagnosed in 2005.

Los Angeles Superior Court Judge Jon Mayeda—now retired—granted summary judgment in favor of Foster Wheeler based on the Oklahoma statute of repose. The law bars tort claims for injury arising from “the design...of an improvement to real property” more than 10 years after substantial completion of the improvement.

In doing so, Mayeda rejected the plaintiffs’ contentions that California choice-of-law rules, as well as the California borrowing statute, preclude application of Oklahoma law to the case, and that the Oklahoma statute was inapplicable in any event because Foster Wheeler was not the designer of a real property improvement.

But Presiding Justice Candace Cooper, writing for the Court of Appeal, agreed with the plaintiffs that California’s interest in protecting state residents who are tort victims and whose claims are filed within the period of the statute of limitations outweighs any interest of Oklahoma’s, particularly since Foster Wheeler does business worldwide and has no particular ties to Oklahoma.

Cooper elaborated:

“California’s interest is reflected in its statute of limitations governing civil actions based on exposure to asbestos.  The statute protects persons injured by exposure to asbestos by permitting them to bring an action within a year after suffering a disability from the exposure....No matter how long ago the person was exposed, the statute provides that the person will have a remedy when the injury manifests itself.  In addition, by virtue of its borrowing statute, California has expressly indicated that, even if a cause of action arose in another state, a citizen of California should not necessarily be subjected to the time limitations of the other state.”

The Oklahoma Supreme Court, Cooper noted, has held that the statute of repose serves that state’s interests by establishing “a balance between the rights of claimants and those of the architects and builders”  and “providing for a measure of security for building professionals whose liability could otherwise extend indefinitely.”

Foster Wheeler, the presiding justice explained, merely supplied the boiler to an Oklahoma purchaser and supervised its installation. “Foster Wheeler is not a citizen of Oklahoma, and is therefore not among the defendants in whose favor Oklahoma’s statute of repose is primarily directed,” Cooper wrote.

The jurist also rejected the defendant’s argument that California had no interest in applying its laws to “wholly foreign conduct.”

Cooper wrote:

“Foster Wheeler’s ‘wholly foreign conduct,’ which did not occur in Oklahoma, resulted in an injury to a California resident, which manifested itself in this state.  California’s remedial statute is expressly designed to preserve asbestos claims during the latency of asbestos-related injuries.  California’s interest in adjudicating a resident plaintiff’s claim outweighs Oklahoma’s interest in cutting off the liability of a non-resident defendant.”

Attorneys on appeal were Paul C. Cook and Michael B. Gurien of Waters & Kraus for the plaintiffs and Frederick D. Baker of Sedgwick, Detert, Moran & Arnold and James G. Scadden of Gordon & Rees for the defendants.

The case is McCann v. Foster Wheeler, 08 S.O.S. 1321.


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