AUSTIN v. A.J. ZINDA CO.

0105-04970; A120273.

101 P.3d 819 (2004)

196 Or. App. 262

Richard AUSTIN and Colleen Austin, Appellants, v. A.J. ZINDA COMPANY, an Oregon corporation; A.P. Green Services, Inc., a Michigan corporation, individually and as successor-in-interest to Bigelow-Liptak Corporation; Acands, Inc., a Delaware corporation, formerly known as Armstrong Contracting & Supply Corp., a wholly owned subsidiary of Armstrong Cork Co. (now known as Armstrong World Industries, Inc.); Aqua-Chem, Inc., a Delaware corporation; Asbestos Corporation Limited, a Canadian corporation; Atlas Turner, Inc., a Canadian corporation, formerly known as Atlas Asbestos; Bell Asbestos Mines, Ltd., a Canadian corporation; Bromley, Inc., an Oregon corporation; Cascade Acoustics, Inc., an Oregon corporation; C.H. Murphy/Clark-Ullman, Inc., an Oregon corporation, individually and as successor-in-interest to C.H. Murphy, Inc.; Congoleum Corporation, a Delaware corporation; Domco Products Texas, L.P., a Delaware corporation, formerly known as Azrock Industries, Inc., individually and as successor-in-interest to Domco U.S. Incorporated, Domco Inc. Floor Product (Texas) and Uvalde Rock Asphalt Company; Duro Dyne Corporation, a New York corporation; Fred Shearer & Sons, an Oregon corporation; Gatke Corporation, an Illinois corporation, individually and as successor-in-interest to Asbestos Textile Company, Inc.; Gensco, Inc., an Oregon corporation; Hamilton Materials, Inc., a California corporation; Honeywell International, Inc., a Delaware corporation, formerly known as AlliedSignal, Inc., and as Allied-Signal, Inc., individually and as successor-in-interest to The Bendix Corporation, Bendix Products Automotive Division, Bendix Products Division, Bendix Aviation Corp., Bendix Home Systems, Allied Corporation, Allied Chemical Corporation, and General Chemical Corporation; I & M Distributing Corp., an Oregon corporation; Johnson Acoustical & Supply Co., an Oregon corporation; Kaiser Gypsum Company, Inc., a Washington corporation, individually and as successor-in-interest to Permanente Cement Company, Henry J. Kaiser Company and Pacific Coast Cement Company; Kaiser Aluminum & Chemical Corporation, a Delaware corporation, individually and as successor-in-interest to Kaiser Refractories, National Refractories & Minerals Corporation, Hendy International Company, Maxxam Holdings, Inc., Maxxam, Inc., and Mexico Refractories; L & W Supply Corporation, a Delaware corporation, the assumed business name of Rose City Building Materials; L.H. Butcher Company, a California corporation, individually and as successor-in-interest to Central Solvents and Chemical Company, Inc., Chemcentral Corporation Company, Inc., Hooker Chemical Corporation, Udylite Corporation, Wibel, Inc., and Wilbur-Ellis Company; Mason Supply Company, an Oregon corporation; MacArthur Company, a Minnesota corporation, individually and as successor-in-interest to Western Asbestos Co.; McPherson Furnace and Equipment Company, a Washington corporation; Metalclad Insulation Corporation, a California corporation, individually and as successor-in-interest to Northern California Insulations, Inc., Sweetser Enterprises, Pacific Asbestos & Supply and Pacific Insulation Services, Inc.; Metropolitan Life Insurance Company, a New York corporation; North American Refractory Company, an Ohio corporation, formerly known as NARCO Investors, Inc., individually and as successor-in-interest to Didier-Taylor Refractories Corporation; Plant Insulation Company, a California corporation, formerly known as Asbestos Company of California and Plant Asbestos Company; Pumilite Building Products, Inc., an Oregon corporation; Quigley Company, Inc., a New York corporation, formerly known as Quigley, Inc.; Quimby Welding Supplies, Inc., an Oregon corporation; Quintec Industries, Inc., a Delaware corporation, individually and as successor-in-interest to Western Fiberglass Supply Company and Muldoon Insulation; T & N PLC, a British corporation, individually and as successor-in-interest to Atlas Asbestos Company, Ltd., Atlas Turner, Inc., Atlas-Turner Company, Ltd., Bell Asbestos Mines, Ltd., Cassiar Asbestos Company, Ltd., CertainTeed Products Corporation, Continental Products Corp., Cork Manufacturing Company, Flexitallic Gasket Company, Inc., Havelock Asbestos Mines (Swaziland), Ltd., J.W. Roberts Limited, Keasbey & Mattison Company, Keasbey & Mattison, Inc., Newalls Insulation Company Limited, Nuturn Corporation, Shabani & Mashaba Mines (Pvt), Ltd., Turner & Newall Holdings (Pty), Ltd., Turner & Newall Industries, Inc., Turner & Newall, Ltd., Turner & Newall, PLC., Turner & Newall International, Ltd., Turner Asbestos Fibers, Ltd., Turner Brothers Asbestos Company Limited, and Washington Chemical Company, Limited; Underwriters Laboratories, Inc., a Delaware corporation, formerly known as Underwriters' Laboratories, Inc.; Union Carbide Corporation, a New York corporation, formerly known as Union Carbide and Carbon Products, and as Union Carbide Chemicals and Plastics Company, Inc., individually and as successor-in-interest to Linde Air Products Company; United States Gypsum Company, a Delaware corporation with its principal place of business in Chicago, Illinois, individually and as successor-in-interest to Sprayon Research Corp., Smith and Kanzler Co., Inc., and Durabond; United States Mineral Products Company, a New Jersey corporation, individually and as successor-in-interest to Philip Carey, Smith and Kanzler Co., Inc., Smith and Kanzler Corporation, Sprayed Insulation, Inc., S.K. Insulroack Corporation, Sprayton Research Corporation, Sprayon Insulation, Inc., Dalen Corporation, Isolatek Corporation, New Venture Corporation, United States Mineral Wool Company, New York Steam Company, Columbia Mineral Wool Company, Columbia Acoustics and Fireproofing Company, Roof Membrane Service Corporation; W.R. Grace & Co. — Conn., a Connecticut corporation, individually and as successor-in-interest to W.R. Grace & Co., Handy Dan Home Improvement Centers, Inc., S & B Supply Co., Aeroline, Inc., Angels Home Improvement Center, Inc., Sandy K Co. Pomona, Daylin, Inc., Bonanza, and Thrift Builder Supply; Western Asbestos Co., a California corporation; Western MacArthur Company, a California corporation, individually and as successor-in-interest to Western Asbestos Co., MacArthur Company, and Bay Cities Asbestos Company, Defendants, and Albina Fuel Co., an Oregon corporation, Respondent.

Court of Appeals of Oregon.

Decided November 24, 2004.


Attorney(s) appearing for the Case

Lloyd Leroy argued the cause for appellants. On the briefs were Elaine J. Brown, Robyn L. Stein, Jon M. Egan, Gil Purcell, and Brayton Purcell.

Thomas C. Patton argued the cause for respondent. With him on the brief were Bruce M. White, Portland, and Mitchell, Lang & Smith.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.


HASELTON, P.J.

Plaintiffs appeal, challenging the allowance of summary judgment in favor of defendant Albina Fuel Company (Albina) on claims arising out of plaintiff Richard Austin's alleged exposure to asbestos-containing products that Albina distributed. Plaintiffs argue that the trial court erred because the summary judgment record presents genuine issues of material fact as to whether Austin was, in fact, injuriously exposed to asbestos tape, flex connectors,...

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