Appellant PAULINE WHITE, Individually and as Personal Representative of the Heirs and Estate of CHARLES NORMAN WHITE, Deceased, requests that the judgment of the trial court be reversed and that this cause be remanded for further proceedings in the trial court.

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This is an appeal from summary judgment dismissing Plaintiff’s claims based on Tex.Civ.Prac.& Rem.Code § 16.009(a), the statute of repose for actions arising out of the construction or repair of improvements to real property. Charles White, Plaintiff’s decedent, contracted and died from mesothelioma, a rare form of cancer caused by exposure to asbestos. In 1992, Charles and Pauline White filed suit against several manufacturers of asbestos and products that required the use of asbestos, including Westinghouse Electric Corporation (“Westinghouse”). C.R.:Vol.I:2-26. The complaint alleged that Westinghouse, despite its knowledge of the hazards posed by asbestos, specified that its industrial turbines be insulated with asbestos-containing products. As a result of Westinghouse’s conduct, Mr. White was exposed to asbestos which caused his disease and death. Following Mr. White’s death in 1993, Mrs. White filed a Suggestion of Death and requested that she be allowed to proceed individually and as Mr. White’s personal representative. S.R.:Vol.I:1-2.

In October of 1993, Westinghouse moved for partial summary judgment, arguing that the claims based on exposure in Texas were barred by Tex.Civ.Prac.& Rem.Code § 16.009(a). C.R.:Vol.I:42-105. On February 24, 1994, the trial court granted partial summary judgment. C.R.:Vol.I:238. Following this order, by agreement of the parties, the claims against Westinghouse were severed. C.R.:Vol.I:239-40. Westinghouse then moved again for summary judgment, arguing that all claims against Westinghouse should be dismissed. C.R.:Vol.I:241-359. On March 12, 1998, the trial court granted Westinghouse’s motion for summary judgment. C.R.:Vol.II:635. On June 29, 1998, the court dismissed Mrs. White’s claims with prejudice. S.R.:Vol.I:4. Mrs. White filed a timely Notice of Appeal on April 10, 1998.[1] C.R.:Vol.II:636.






Between 1952 and 1974, Charles Norman White worked at the Seaholm and Holly Street power plants in Austin, Texas. C.R.:Vol.I:106. While working at these plants, Mr. White helped with the installation of turbine-generators manufactured and supplied by Westinghouse. After the bottom half of the turbine had been put into place, Mr. White would use asbestos-containing products to insulate the turbine as the steam pipes were being installed. C.R.:Vol.I:174-75. Then, after the top half of the turbine was placed over the steam blades, Mr. White would insulate the rest of the turbine, again using products that contained asbestos. C.R.:Vol.I:175. Westinghouse prescribed the use of these asbestos products in its process specifications. C.R.:Vol.II:376-82; 457-60.

Decades later, Mr. White developed mesothelioma, a fatal cancer of the lung lining caused by asbestos exposure. Mr. White died from this disease in 1993. S.R.:Vol.I:2. After being diagnosed with mesothelioma, Mr. White and his wife, Pauline White, filed suit against Westinghouse and other defendants, seeking compensation for his asbestos-related injuries. The lawsuit alleged that Westinghouse was liable for negligence and gross negligence for causing Mr. White to be exposed to asbestos, despite Westinghouse’s knowledge of the grave health hazards posed by asbestos. C.R.:Vol.I:106.


Westinghouse did not establish as a matter of law that it is covered by the statute of repose. First, Westinghouse’s central contention — that the statute of repose protects manufacturers of defective products — has been unequivocally rejected by the Texas Supreme Court. Further, even assuming that the statute applies to Westinghouse, the statute specifically excludes claims based on willful misconduct and/or fraudulent concealment. Finally, there is no indication that the Legislature intended for the statute of repose to apply retroactively to asbestos exposure that occurred before the statute took effect.



A.The Summary Judgment Standard.

Summary judgment is a harsh remedy. “It is to be strictly construed against the movant, and summary judgment should be granted only if the record establishes that as a matter of law there is no genuine issue as to any material fact in the case.” Rosemont Enterprises, Inc. v. Lummis, 596 S.W.2d 916, 923 (Tex. Civ. App. — Houston [14th Dist.] 1980, no writ). The summary judgment movant must “establish this entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of [their] cause of action or defenses as a matter of law.” Id. at 678. The purpose of summary judgment is not to deprive litigants of a trial on genuinely contested issues but to “eliminate patently unmeritorious claims.” State v. Roberts, 882 S.W.2d 512, 514 (Tex. App. — Austin 1994, no writ). Where, as in this case, a summary judgment proceeding is based on an affirmative defense such as a statute of limitations or statute of repose, the movant must establish that defense as a matter of law. See Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex. 1996).

B.Westinghouse Did not Establish That It “Constructed” the Turbines Within the Meaning of § 16.009.

In its Motion for Partial Summary Judgment, Westinghouse asserted that Mrs. White’s claims against it as the manufacturer of unreasonably dangerous turbine-generators are barred by the statute of repose applicable to suits arising out of the construction or repair of improvements to real property. Tex.Civ.Prac.&Rem.Code § 16.009(a) provides protection for claims “against a person who constructs or repairs an improvement to real property.” Tex.Civ.Prac.&Rem.Code § 16.009. Westinghouse argued that its turbine-generators were improvements to real property, and thus, that “Plaintiff has no cause of action against the turbine-generator manufacturer and builder, Westinghouse.” C.R.:Vol.I:52. Plaintiff responded that although the turbines ultimately became improvements to real property, Westinghouse had not established as a matter of law that it was protected by the statute of repose. Plaintiff argued that Westinghouse was liable as “the designer, manufacturer and supplier of a defective product, rather than as a construction professional who constructs an unsafe improvement.” C.R.:Vol.I:112. Plaintiff contended that the statute of repose does not protect the manufacturer of a defective product simply because that product later becomes an improvement to real property.

After the trial court granted the motion for partial summary judgment, the Texas Supreme Court decided Sonnier v. Chisholm-Ryder Co., Inc., 909 S.W.2d 475 (Tex. 1995), squarely rejecting the interpretation of § 16.009 advanced by Westinghouse. Sonnier involved a product liability lawsuit against the manufacturer of a tomato chopper which was installed at a prison. A jury found that the tomato chopper was an improvement to real property, and the trial court entered judgment against the plaintiffs based on the statute of repose. Id. at 477. On appeal, the manufacturer maintained that because the tomato chopper was an improvement to real property, the statute of repose barred any product liability claims. The Court rejected this argument and held that § 16.009 does not protect the manufacturer of a product simply because the product subsequently becomes an improvement to real property. The Court explained:

From the history of the act, it is consistent to hold that the act was intended to protect those who actually alter the realty by constructing additions or annexing personalty to it, not to protect those who do no more than manufacture personalty that is later transformed by third parties into an improvement.

Id. at 482. See also Astec Industries, Inc. v. Suarez, 921 S.W.2d 794 (Tex.App. — Fort Worth 1996, n.w.h.) (statute of repose not applicable to manufacturer of material handling system); Petro Stopping Centers, Inc. v. Owens-Corning Fiberglas Corp., 906 S.W.2d 618, 620 (Tex.App. — El Paso 1995, no writ) (“The Legislature has not granted repose to materialmen, suppliers, manufacturers, or producers not involved with the construction, repair, or installation of an improvement to real property”).

It is not disputed that Westinghouse manufactured the turbines at issue in this lawsuit, and that those turbines later became improvements to real property. As Sonnier makes clear, however, that is not sufficient to bar the product liability claims against Westinghouse. See Sonnier, 909 S.W.2d at 481-82.

C.The Statute Does Not Apply Unless and Until an Improvement is Actually Annexed to the Real Property.

Even if Westinghouse is deemed to be the entity which annexed the turbines, § 16.009 does not apply in this case because the conduct giving rise to Mrs. White’s claims occurred before the turbines were actually annexed. As explained in Sonnier, “it is the annexation that transforms the personalty into an improvement.” Sonnier, 909 S.W.2d at 479. (emphasis in original). Later in the opinion the Court reiterated that “[t]here can be no such thing as an improvement until personalty is annexed to realty. Whatever it is that a manufacturer actually makes, it is not an improvement until it is annexed.” Id. at 481.

If a manufacturer’s product does not become an “improvement” until after it has been annexed to real property, it necessarily follows that § 16.009 cannot apply until after the product has been annexed. In this case, Mr. White was exposed to asbestos during the process of installing and insulating the turbines. C.R.:Vol.I:163-76. In other words, the exposure to asbestos — the crux of this lawsuit — occurred before the turbines were annexed to the real property and became “improvements” as defined in Sonnier.

The Fourth Circuit adopted this analysis in construing Virginia’s similar statute of repose in Willis v. Raymark Industries, Inc., 905 F.2d 793 (4th Cir. 1990). In Willis, insulation workers sued for injuries sustained while installing insulation products which contained asbestos. The Fourth Circuit held that although the insulation products were “improvements,” the statute did not apply because the “harmful exposure” that gave rise to the suit “occurred prior to the point at which the insulation products were incorporated into the realty.” Id. at 797-98. The fact that the insulation was intended to become an improvement “does not in and of itself activate the statute.” Id. at 798.

The Fourth Circuit’s analysis is consistent with the Texas Supreme Court’s focus on annexation as the essential element of transforming property into an improvement. See Sonnier, 909 S.W.2d at 481 (“We have found no authority that identifies a class of property as an improvement although not annexed to real estate”). Nor is there any indication that the Legislature intended to provide protection for injuries that occur during the process of installing a product on real property. The statute does not even become applicable until ten years after the “substantial completion of the improvement.” Tex.Civ.Prac.& Rem.Code § 16.009(a).

The Legislature’s intent was to protect contractors from liability for construction projects “over which they no longer have control.” Sowders v. M.W. Kellogg Co., 663 S.W.2d 644, 648 (Tex. App. — Houston 1983, writ ref’d n.r.e.). [2] The Legislature was apparently concerned that contractors, who exercise no control over the premises after their job is done, would be unfairly prejudiced by time’s toll on the maintenance and safety of their construction projects. See McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918, 924 (Tex. App. — Dallas 1985, writ ref’d n.r.e.). Those concerns simply do not apply when a product manufacturer’s wrongful conduct occurs prior to the annexation of the product to realty. At the time Westinghouse instructed Mr. White to use deadly materials in insulating its turbines, those turbines were products, not improvements to realty. Indeed, the passing years have not prejudiced Westinghouse in this matter in the slightest, but they have taken a devastating toll on Mrs. White and her deceased husband. The reasons underlying application of the statute of repose to protect contractors from liability for their construction projects simply do not support extending the statute to protect manufacturers whose products are dangerously defectively before they ever become annexed to real property.

Rather, injuries that are caused prior to and during the process of annexation — that is, during the time that the entity installing a product does have control over the project — fall outside the logical scope of § 16.009. By its own terms, the statute of repose cannot apply to bar claims caused by exposure that takes place before a product becomes an improvement. The statute therefore does not apply to Mrs. White’s claims, and Westinghouse was not entitled to judgment as a matter of law.


A.The Statute Specifically Excludes Claims Based on Willful Misconduct or Fraudulent Concealment.

Tex.Civ.Prac.& Rem.Code § 16.009(e)(3) provides that the statute of repose does not apply to an action “based on willful misconduct or fraudulent concealment in connection with the performance of the construction or repair.” Summary judgment is precluded if the evidence raises a genuine issue of fact with respect to either willful misconduct or fraudulent concealment. See Marshall Indep. Sch. Dist., 790 F.Supp. at 1300-01; Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996). In this case, Mrs. White offered abundant evidence of both on Westinghouse’s part.

B.There Is a Genuine Issue of Fact With Respect to Westinghouse’s Willful Misconduct and/or Fraudulent Concealment.

In this context, “willful misconduct” is defined in a manner akin to “gross negligence,” meaning “that entire want of care which would raise the belief that the act or omission was the result of a conscious indifference to the rights or welfare of the person or persons affected by it.” Marshall Indep. Sch. Dist. v. U.S. Gypsum Co., 790 F.Supp. 1291, 1301 (E.D.Tex. 1992) (quoting Burk Royalty Co. v. Walls, 616 S.W.2d 911, 917 (Tex. 1981)). The test for determining gross negligence is whether Westinghouse was aware of the serious danger created by its conduct. See Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994) (for an act or omission to constitute “gross negligence,” there must be an extreme degree of risk and “the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed in conscious indifference to the rights, safety, or welfare of others”).

Fraudulent concealment means (1) that a material misrepresentation or concealment was made; (2) that it was false; (3) that when the speaker made the misrepresentation or concealment, he knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) that he made it with the intention that it should be acted upon by the other party; (5) that the other party acted in reliance upon it; and (6) that the other party suffered injury. Marshall Indep. School Dist., 790 F. Supp. at 1296-97. Constructive fraud is the breach of some legal or equitable duty that the law declares to be fraudulent to deceive others, to violate confidence, or to injure public interests. Id. at 1297.

Evidence in the record indicates that Westinghouse knew about the risk of serious injury posed by asbestos before and during the time frame in which Mr. White was exposed but intentionally sought to conceal that knowledge. Early in 1946, E.C. Barnes, an industrial hygiene engineer for Westinghouse, wrote that using asbestos insulation on steam turbines “presents a potential health hazard due to the possibility that workers may breathe asbestos dust.” C.R.:Vol.II:580-81. In another letter written two years later, Mr. Barnes warned that “[a]sbestos dust, when breathed in excessive concentrations over a long period of time, can produce a chronic lung disease known as ‘asbestosis,’ and I feel that considerable care should be exercised to minimize any hazards of this type.” C.R.:Vol.II:592. In January of 1953, Westinghouse created a “Safe Practice Data Sheet,” stating that “[d]ust from asbestos materials may produce a chronic lung disease if it is breathed in sufficient concentrations over a period of years.” C.R.:Vol.II:594.

Further, one of Westinghouse’s own employees has admitted that Westinghouse failed to warn Mr. White or his employer of the dangers of asbestos following the installation of the turbines, even though Westinghouse maintained a continuing relationship with Mr. White’s employer. For example, Westinghouse possessed materials that warned of the dangers of asbestos since at least 1967 but did not provide these warnings to customers on a regular basis. C.R.:Vol.II:497-501; 525-531; 541. This was so even though Westinghouse routinely maintained a continuing relationship with its customers following installation of turbines. C.R.:Vol.II: 493-497. And the evidence demonstrated that Westinghouse maintained a relationship with Mr. White’s employer here. C.R.:Vol.II:564-574. Indeed, Westinghouse failed to provide warnings to Mr. White and his employer even as it was taking steps to protect its own employees from the dangers of asbestos. C.R.:Vol.II:594. In short, Westinghouse did nothing to protect workers like Mr. White, who were exposed to asbestos in the course of installing and insulating Westinghouse’s products according to Westinghouse’s specifications.

What Westinghouse did do, apparently, was to attempt actively to conceal the knowledge it did have. Among the documents submitted to the trial court was an internal memorandum describing the files of Westinghouse’s Industrial Hygiene Department as “potential ‘smoking gun’ documents” which might demonstrate the company’s knowledge of the hazards posed by substances used in its facilities. C.R.:Vol.II:614. According to the memorandum, the information contained in these files “details the various chemical substances used at Westinghouse sites over the years and often times the inadequacies in Westinghouse’s use and handling of the substances.” C.R.:Vol.II:615. In fact, the Memorandum specifically noted that if information — such as that contained in Westinghouse’s 1953 Safe Practices Sheet regarding asbestos — “is not or was not conveyed to customers, the public, etc., again the potential future problems are readily apparent.” C.R.:Vol.II:617. The memorandum concluded that all such documents should be destroyed to avert potential liability. C.R.:Vol.II:629. Westinghouse was clearly aware that its conduct exposed it to liability for knowingly exposing workers to dangerous products but chose to conceal that awareness.

Westinghouse’s knowledge of the grave dangers posed by asbestos raises a genuine issue as to whether Westinghouse is liable for willful misconduct. Awareness of the hazards created by asbestos has been held to constitute evidence of “willful misconduct” within the meaning of § 16.009(e)(3). In Marshall Independent School District v. U.S. Gypsum Co., 790 F.Supp. 1291 (E.D.Tex. 1992), a property damage case involving asbestos, the court denied summary judgment, holding that in light of “potential evidence” that the defendant, USG, had actual notice of the hazards of asbestos, “[t]he question of whether USG committed willful misconduct in connection with the work performed . . . is an issue for the jury to decide.” Id. at 1301-02. The evidence of willful misconduct in this case is considerably more direct and specific.

Despite its knowledge that exposure to asbestos causes serious, potentially fatal diseases, Westinghouse did nothing to protect Mr. White from exposure or to warn him of the dangers to his health. Westinghouse continued to specify the use of asbestos in insulating its turbines. This certainly constitutes evidence of “conscious indifference to the rights, safety, or welfare of others.” Cf. Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 924 (Tex. 1998) (evidence that company was aware of health hazards created by benzene exposure supported finding of gross negligence); Birchfield v. Texarkana Mem. Hosp., 747 S.W.2d 361, 365 (Tex. 1987) (evidence of defendant’s “subjective knowledge of the peril created by his conduct” is sufficient to support a finding of conscious indifference amounting to gross negligence).

The fact that Westinghouse sought to protect its own workers while ignoring the safety of workers such as Mr. White is further evidence of willful misconduct. See Mobil Oil Corp., supra, 968 S.W.2d at 924 (evidence that company took steps to protect its own employees from benzene exposure while doing nothing to protect contract workers was evidence of “conscious indifference toward the rights, safety or welfare of [the] contract workers”).

The evidence before the trial court in this case indicated that Westinghouse knew asbestos could cause grave illness and took steps to protect its own workers while leaving workers such as Mr. White in the dark. In doing so, Westinghouse demonstrated an utter disregard for Mr. White’s rights, safety and welfare. Having engaged in such willful misconduct and/or fraudulent concealment, Westinghouse cannot now claim protection from the statute of repose.


A.§ 16.009 Does Not Apply Retroactively.

1. Statutes Are Presumed Not to Apply Retroactively Unless That Was the Legislature’s Intent.

The law is well-settled in Texas that statutes are rarely applied retroactively. As the Texas Supreme Court explained in Ex Parte Abell, 613 S.W.2d 255 (Tex. 1981):

The general rule is that there exists a presumption that an act is intended to operate prospectively and not retroactively. If there is any doubt, the intention will be resolved against retrospective operation of a statute. An act will not be applied retrospectively unless it appears by fair implication from the language used that it was the intent of the Legislature to make it applicable to both past and future transactions.

Id. at 258. In light of this strong presumption, § 16.009 should not be applied to transactions that took place before its effective date unless that was clearly the Legislature’s intent.

2. The Legislature Did Not Intend for § 16.009 to Apply Retroactively.

In Dayton Independent School District v. U.S. Mineral Products Co., 789 F.Supp. 819 (E.D.Tex. 1992), aff’d, 52 F.3d 1067 (1995), a lawsuit against an asbestos manufacturer, the court directly addressed the question of whether § 16.009 was intended to apply retroactively. After reviewing the language and history of the section, and its companion statute, § 16.008, the court could not find “any indication that the legislature intended the Statutes of Repose to apply retroactively.”[3] Id. at 822.

B.The Asbestos Exposure Which Led to This Lawsuit Occurred Before

§ 16.009 Was Enacted.

Having found that the statute was not intended to apply retroactively, the court in Dayton held that the statute did not apply to the asbestos-related claims against U.S. Mineral Products Company because the asbestos was installed before the statute of repose went into effect. Id. In this case, the installation of the asbestos insulation and Mr. White’s exposure to asbestos began in 1952, more than twenty years before § 16.009 was enacted.

For good or ill, time flows in only one direction. Medical science could not retroactively undo the damage inflicted by Westinghouse on Mr. White’s lungs. Nor can the law be read to erase Westinghouse’s liability after the fact. Applying the statute of repose to asbestos exposure that took place before the statute was enacted presumes that the statute operates retroactively, contradicting well-established law. Consequently the trial court’s application of § 16.009 to this case was erroneous and should be reversed.


Appellant Pauline White requests that she be granted oral argument.


WHEREFORE, Appellant Pauline White requests that the judgment of the trial court be reversed, that the cause be remanded for further proceedings, and that she be granted such other and further relief to which she is justly entitled.

Respectfully submitted,

  1. This Court granted Mrs. White an extension of time to file her brief until thirty days after the filing of the supplemental record. The supplemental record was filed on July 16, 1998, making this brief due on August 17, 1998.
  2. In fact, the Legislature explicitly denied protection to any defendant who is “in actual possession or control of the real property at the time that the damage, injury, or death occurs.” Tex.Civ.Prac.& Rem.Code § 16.009(e)(2).
  3. In 1997, after the decision in Dayton was affirmed by the Fifth Circuit, the Legislature made substantive changes to § 16.008 but did not disturb the court’s holding on retroactivity. This is further evidence that the Legislature accepts the court’s interpretation of the statute. See Robinson v. Central Texas MHMR Ctr., 780 S.W.2d 169, 170 n.4 (Tex. 1989).