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Lee v. Certainteed Corporation

United States District Court, E.D. North Carolina, Western Division

April 11, 2014

LARRY WINSLOWE LEE and SUSAN PROVOST LEE, Plaintiffs,
v.
CERTAINTEED CORPORATION; DANA COMPANIES LLC, sued individually and as successor-in-interest to Victor Gasket Manufacturing Company; DEERE & COMPANY, d/b/a John Deere; FORD MOTOR COMPANY; FORMOSA PLASTICS CORPORATION U.S.A., sued individually and as parent, alter ego and successor-in-interest to J-M Manufacturing Company and to J-M A/C Pipe Corporation; GENUINE PARTS COMPANY, d/b/a National Automotive Parts Association (a.k.a. NAPA); GRINNEL LLC, d/b/a Grinnell Corporation; HAJOCA CORPORATION, sued individually and as successor-in-interest to Hughes Supply; HONEYWELL INTERNATIONAL, INC., sued individually and as successor-in-interest to Bendix Corporation f/k/a Allied-Signal, Inc.; J-M MANUFACTURING COMPANY, INC., sued individually and as parent and alter ego to J-M A/C Pipe Corporation; KAWASAKI MOTORS CORP., U.S.A.; METROPOLITAN LIFE INSURANCE COMPANY; PFIZER INC.; PNEUMO ABEX LLC, sued individually and as successor-in-interest to Abex Corporation and as succesor-in-interest to American Brakeblok; UNION CARBIDE CORPORATION; and YAMAHA MOTOR CORPORATION, U.S.A.; Defendants.

ORDER

LOUISE W. FLANAGAN, District Judge.

This matter comes before the court on motions to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), filed by defendants Ford Motor Company ("Ford") (DE 84) and Kawasaki Motors Corp., U.S.A. ("Kawasaki") (DE 86).[1] Plaintiffs have not responded within the deadline set by the court, and issues raised are ripe for ruling. For reasons that follow, the court grants the motions to dismiss.

STATEMENT OF THE CASE

Plaintiffs, residents of Wake County, North Carolina, bring this action alleging a number of claims related to personal injury and loss of consortium. Plaintiff Larry Winslowe Lee ("Larry Lee") was diagnosed with mesothelioma on September 13, 2013. Plaintiffs allege that his condition resulted from exposure to asbestos during his employment as mechanics' helper, maintenance laborer, inspector, construction worker, and salesman, in addition to automotive maintenance work performed on his own personal vehicles and those of his family.

In complaint filed December 2, 2013, plaintiffs assert claims against a multitude of defendants: 1) AK Steel Corp. ("AK Steel"); 2) Briggs & Stratton Corporation ("Briggs & Stratton"); 3) Certainteed Corporation; 4) Clow Valve Company ("Clow Valve"); 5) Dana Companies LLC; 6) Deere & Company; 7) Eckler's Corvette; 8) Ford; 9) Formosa Plastics Corporation U.S.A. ("Formosa"); 10) Genuine Parts Company; 11) Grinnell LLC; 12) Hajoca Corporation; 13) Hammer & Steel, Inc. ("Hammer & Steel"); 14) Honeywell International, Inc.; 15) J-M Manufacturing Company, Inc. ("J-M Manufacturing"); 16) Kawasaki 17) McWane Inc. ("McWane"); 18) Metropolitan Life Insurance Company ("MetLife"); 19) Pfizer Inc.; 20) Pneumo Abex LLC; 21) Special Electric Company, Inc. ("Special Electric Company"); 22) Union Carbide Corporation; and 23) Yamaha Motor Corporation, U.S.A.

All defendants are alleged to have acted negligently in putting asbestos or asbestos-containing products into interstate commerce (First Cause), to have breached implied warranties that asbestos materials were of good and merchantable quality and fit for their intended use (Second Cause), to have acted willfully and wantonly in exposing plaintiff Larry Lee to asbestos (Third Cause), to have committed false representation and fraud regarding the dangers of asbestos exposure to plaintiff Larry Lee (Fourth Cause), and to have failed to warn plaintiff Larry Lee of the dangers associated with asbestos exposure (Fifth Cause). Defendant MetLife is alleged to have engaged in a conspiracy and to be liable for punitive damages, where it is asserted that Metlife aided and abetted the negligence and marketing of asbestos-containing products (Sixth Cause). Conspiracy and punitive damages liability are also alleged against defendants Formosa and J-M Manufacturing for the manufacture and sale of asbestos-containing products (Seventh Cause).

Defendants AK Steel, Briggs & Stratton, Clow Valve, Eckler's Corvette, Hammer & Steel, McWane, and Special Electric Company have been dismissed from the action. All sixteen (16) remaining defendants have filed answers, generally denying plaintiff's allegations and raising a myriad of defenses, including, without limitation, failure to state a claim; superseding, intervening and contributory negligence; assumption of risk; compliance with state of the art; industry practice; statutes of limitations and repose; res judicata; and failure to join necessary parties.

On March 28, 2014, the court issued its initial order on planning and scheduling, giving the parties twenty-one (21) days to hold a conference pursuant to Rule 26(f) of the Federal Rules of Civil Procedure, and setting other deadlines.

Defendants Ford and Kawasaki filed the instant motions to dismiss on March 11, 2014 seeking to dismiss plaintiffs' claims against them arising out of false representation/fraud (Fourth Cause). Deadlines to respond expired April 4, 2014, without plaintiffs filing response to either motion. These are the only two motions to dismiss currently pending in this case.

STATEMENT OF FACTS

The facts as alleged by plaintiffs generally are as follows. From 1963 through the present, plaintiff Larry Lee held the following positions:

POSITION EMPLOYER/WORK APPROXIMATE DATES SITE Mechanics' Helper Standard Oil Gas 1963-1964 Station (Vero Beach, (Compl. ¶ 26(a)) FL) Part-time Mechanics' Pure Oil Co. Gas 1963-1964 Helper (Id.) Station (Vero Beach, FL) Laborer/Helper State of Florida, Approximately 1964-(unspecified date) (Compl. ¶ 26(b)) Entomology Research Laboratory Inspector/Surveyor Florida Department Approximately 1968-1970 (Compl. ¶ 26(c)) of Transportation (Indian River County, FL) Bridge Construction Perini Corporation Approximately 1971-1972 Superintendent (Id.) (Indian River (Id.) County, FL) Head of Layout Gorham Construction Approximately 1973-1976 Design (Compl. (unspecified 26(d)) location) Pipe Salesman Davis Water & Approximately 1976-1981, 1985-present (Compl. 26(e)) Waste Supply n/k/a HD Supply (unspecified location) Pipe Salesman (Id.) Underground Supply Approximately 1982-1985 (unspecified location)

In addition, plaintiff Larry Lee performed automotive maintenance work on his personal vehicles and on the vehicles of family members from approximately the ...


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