Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Hinkley v. A.O. Smith Corp.

Superior Court of Rhode Island

March 13, 2017

BRENDA HINKLEY, Personal Representative of the Estate of RUDOLPH ALLEN, Deceased and DOROTHY ALLEN, His Wife, in her own right, Plaintiffs,
v.
A.O. SMITH CORPORATION, et al., Defendants.

         Providence County Superior Court

          For Plaintiff: Vincent L. Greene, IV, Esq.

          For Defendant: Monica R. Nelson, Esq. Andy McConnell, Esq. Andrew R. McConville, Esq.

          DECISION

          GIBNEY, P.J.

         The Defendant New England Insulation Company (Defendant or NEI) seeks summary judgment in the above-entitled personal injury matter brought by Plaintiffs Brenda Hinkley, Personal Representative of the Estate of Rudolph Allen, and Dorothy Allen, the Decedent's wife (Plaintiffs). The present Defendant objects to the application of Maine law that was previously requested by co-defendants on October 15, 2015 and agreed to by the Plaintiffs on November 16, 2016. Additionally, the Defendant argues that under either Maine or Rhode Island law, the Plaintiffs have failed to provide sufficient product identification to overcome summary judgment. The Plaintiffs contend that the application of Maine law is proper and that sufficient product identification has been presented to survive summary judgment. This Court exercises jurisdiction pursuant to G.L. 1956 § 8-2-14.

         I

         Facts and Travel

         The Decedent, Rudolph Allen (Mr. Allen or the Decedent), and his wife, Dorothy Allen, filed this instant action on April 27, 2015 after the Decedent was diagnosed with mesothelioma on March 11, 2015. The Plaintiffs allege that Mr. Allen worked as a plumbing-heating tradesman from 1949 to 1959 and subsequently worked as a plumber-pipefitter from 1960 to the late 1970s. The Plaintiffs allege that Mr. Allen, while at work, inhaled, absorbed, and came into contact with asbestos and asbestos-containing products.

         Mr. Allen was born in Maine, where he lived the majority of his life, with the exception of the two and one-half years that he served in the Navy beginning in 1943 and the nine years that he lived on Long Island, New York. Following his time in the Navy, Mr. Allen worked in New York and Maine on various jobs which included plumbing, boiler and heating equipment installation, and finally as a union pipefitter from 1963 through retirement. Mr. Allen's exposure allegations in the present motion involve his employment in the fields of plumbing, heating, and pipefitting at multiple paper mills, the majority of which were located in Maine. In his deposition testimony, Mr. Allen specifically testified to his time working at International Paper Mill in Jay, Maine where he worked around outside contractors who installed asbestos-containing pipe covering.

         Mr. Allen died in Auburn, Maine on October 10, 2015. Subsequently, Mr. Richard R. Ouellette (Mr. Ouellette), a co-worker of the Decedent, was deposed on July 6, 2016. Mr. Ouellette worked with Mr. Allen at International Paper Mill in Jay, Maine, and he testified that the Decedent was his foreman. During this time, Mr. Ouellette worked with Mr. Allen assisting in the construction of a new power house. After this construction project was complete, Mr. Ouellette continued to work alongside the Decedent for approximately two months at the International Paper Mill on the digester and pulp mill areas. Mr. Ouellette stated that outside contractors installed and cut asbestos-containing pipe covering in the power house, the pulp mill, and the digester and that such cutting created dust which both he and the Decedent inhaled.

         Maurice Morin, a worker at International Paper Mill, testified in another suit that he worked on the paper machines at the mill from 1956 until 1972. Mr. Morin recalled NEI as the insulation contractor that performed the insulation work at International Paper Mill, since he remembers seeing its name on the trucks. He testified that NEI installed pipe covering and that this process created dust.

         On July 15, 2015, co-defendants Crane Co. and Kimberly-Clark Corporation filed a Notice to Apply the Foreign Law of Maine to the instant action. On July 21, 2015, the Plaintiffs opposed that Notice to Apply Foreign Law. On November 13, 2015, co-defendant S.D. Warren motioned to join Kimberly-Clark Corporation's notice. The Plaintiffs initially objected to the defendants' motions to apply foreign law on April 19, 2016. However, on or about November 16, 2016, the Plaintiffs filed a Notice of No Opposition and agreed to apply the substantive Maine law to the case. The Defendant on this present motion-NEI, which is a co-defendant of the corporations noted above-filed its objection to the Application of Foreign Law on January 18, 2017 and noted its objection during oral arguments on summary judgment.

         II

         Parties' Arguments

         The Defendant contends that the substantive law of Maine should not apply to the instant action, despite co-defendants' previous motions to apply foreign law and Plaintiffs' assent thereto. The Defendant argues that the Plaintiffs failed to comply with Super. R. Civ. P. 44.1, which states that "[a] party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice." The Defendant argues that since the Plaintiffs failed to provide notice, this Court should not entertain arguments on the application of Maine law and should not apply Maine law to the present Motion for Summary Judgment.

         The Defendant maintains that if Rhode Island substantive law applies, summary judgment should be granted because Plaintiffs have failed to provide product identification or evidence of a causal connection. Further, the Defendant contends that the Plaintiffs' claims are barred under Rhode Island's Statute of Repose because the Defendant, as an insulation contractor, clearly qualifies for protection under the statute's language. Alternatively, the Defendant argues that if this Court should determine that Maine substantive law applies, the Plaintiffs' claims similarly cannot survive summary judgment. The Defendant argues that the Plaintiffs have failed to provide evidence regarding product identification as required by Maine law in the recent Grant v. Foster Wheeler, LLC decision from the Supreme Judicial Court of Maine. 140 A.3d 1242 (Me. 2016).

         Alternatively, the Plaintiffs contend that Maine substantive law applies to the instant action because the Notice to Apply Foreign Law brought by co-defendants applies to the entire action, not just the motion between a particular co-defendant and a plaintiff. Plaintiffs additionally claim that their filed Objection to Apply Foreign Law constitutes Notice under Super. R. Civ. P. 44.1 and that their filed Objection to the Motion for Summary Judgment similarly provided sufficient notice of the application of Maine law. Under Maine law, the Plaintiffs maintain that they have offered sufficient evidence of product identification in relation to NEI. They contend that under Grant, they have provided evidence to show proper product nexus in order to survive summary ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.