IN THE SUPERIOR COUR T OF THE STATE OF DE LAWARE IN AND FOR NEW CASTL E COUNTY

IN RE: ASBESTOS LITIGATION ) ) FRANK G. SCHULTZ and DELORIS ) SCHULTZ, his wife, ) ) Plaintiffs, ) ) v. ) C.A. No. N13C
- 04
- 015 ASB ) AMERICAN BILTRITE, INC., et al. , ) ) Defendants. )
Submitted: July 9, 2015 Decided: September 1, 2015
MEMORANDUM OPINION Upon Defendants ’ Motion for Summary Judgment , GRANTED.

A. Dale Bowers, Esquire, Kenneth L. Wan, Esquire, Irina N. Luzhatsky, Esquire, Law Office of A. Dale Bowers, P.A., Newport, Delaware, C hristopher A. Romanelli, Esquire ( pro hac vice ) ( argued ), Of Counsel, Weitz & Luxemberg, P.C., New York, New York, Attorneys for Plaintiffs. Loreto P. Rufo, Esquire, Rufo Associat es, P.A., Hockessin, Delaware, Donald E. Reid ( argued ), Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware, Attorneys for Defendants. WALLACE, J.- 2

- I. I NTRODUCTION Plaintiff Frank Schultz brings this asbestos action against numerous defendants allegin g wrongful exposure to the several Defendants’ asbestos

containing products. 1 His claims arise out of activity in Michigan. Mr. Schultz was diagnosed with lung cancer in June, 2010 . H e and his wife , Deloris, filed this
action in Delaware in April, 2013. All Defendants now move for summary judgment, asserting that Delaware’s statute of limitations , as applied through
10 Del. C. § 8121 (Delaware’s “Borrowing Statute”) , bars the Schultzes’ claims. Following a hearing i n July, 2015, the Court reserved its decision on Defendants’

m otions for summary judgment. Having reviewed the parties’ submissions , their representations at oral argument, and the record in this case, the Court hereby
GRANTS Defendants’ Motion for Summary Judgment for the reasons explained
below.
I. F ACTUAL AND P ROCEDURAL H ISTORY Mr. Schultz was diagnosed with what he alleges is asbestos

- related lung cancer. He attributes his disease to his work in Michigan with asbestos

- containing construction products. During his depositi on , he testified that he was diagnosed with lung cancer in June, 2010 , at a yearly physical. 2 The Schultz es instituted this

1 See generally Compl. (listing all Defendant entities and alleged asbestos exposures).

2 Deposition of Frank G. Schultz, June 25, 2013 (Ex. D to Defs.’ Mot. Summ. J.) at 205

- 06.- 3

- lawsuit in April, 2013, against various defendants alleging wrongful exposure to asbestos. The parties dispute neither the June, 2010 , diagnosis date nor that that is
when the statute of limitations began to run on the Schultzes’ claims

. 3 And t he parties have stipulated, with the Court ’s approval , that Delaware law governs the procedural issues , while Michigan law governs the subst antive issues in this case

. 4
II. S TANDARD OF R EVIEW Delaware Superior Court Rule 56 allows for the grant of summary judgment upon a showing that “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter o f law.” 5 Summary judgment will not be granted if there is a material fact in dispute or if “it seems desirable to inquire thoroughly into [the facts] to clarify the application of the law to the
circumstances.” 6 In considering the motion, “[a]ll facts an d reasonable inferences must be considered in a light most favorable to the non

- moving party.” 7 When a motion for summary judgment is based on a statute of limitations defense, the Court will grant the motion if upon the record no genuine issues of fact exist as to “the date on which the applicable statute of limitations began to run, the date to

3 See, e.g., Pl.’s Resp. Br. 1.

4 Stipulation & Order Regarding Applicable Law, Apr. 16, 2015 (D.I. 113).

5 Super. Ct. Civ. R. 56(c).

6 Ebersole v. Lowengrub , 180 A.2d 467, 469 (Del. 1962).

7 Nutt v. A.C. & S. Co., Inc. , 517 A.2d 690, 692 (Del. Super Ct. 1986).- 4

- which the statute of limitations may have been tolled, and the date on which the plaintiff filed [his or] her complaint with the court.” 8
III. D ISCUSSION The parties do not dispute that the statute of limitations began to run i n June,
2010

– Mr. Schultz’s diagnosis date. They agree that there is no tolling mechanism applicable here. And no one disputes that the complaint was filed in April of 2 013. The parties disagree, however, as to wh ich state’s st atute of
limitations applies

– Delaware’s or Michigan’s. In turn, t he sole i ssue for the Court to decide is: does the Delaware Borrowing Statute apply to bar the Schultz es ’ claims? S ection 8121 o f Title 10 of the Delaware Code provides , in pertinent part : Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time l imited by the law of this State, or the time limited by the law of the state

. . . where the cause of action arose, for bringing an action upon such cause of action.

. . . 9 The clear and unambiguous terms of the statute dictate that if a cause of
action arises outside of Delaware, the Court must compare “the time limited by the

8 Burrell v. Astrazeneca LP , 2010 WL 3706584, at *2 (Del. Super. Ct. Sept. 20, 2010).

9 D EL
. C ODE A NN
. tit. 10, § 8121 (2015).- 5

- law of this State ” with “the time limited by the law of the state . . . where the cause of action arose” and apply “ whichever is shorter .” 10 The applicable Delaware statute of limitations for personal injury actions is two years from the date of injury. 11 Michigan has a three

- year statu t e of limitations for personal injuries in product liability actions

. 12 Defendants contend the Court must apply the two

- year Delaware statute of limitations because the

cau se of action arose in Michigan and Delaware provides the shorter of the two limitations periods. They argue that because the Schultz e s filed their Complaint
more than two years after the statute began to run on their asbestos exposure claims, it is now time

- barred under 10 Del. C. § 8119.
The Schultz es , for their part, contend an application of the Borrowing
Statu t e on the facts of this case would subvert its underlying pu rpose. That
statute’s sole purpose, in their view, is to address forum shopping by prevent ing Delaware courts from adjudicating stale claims from elsewhere

. Because their

10 Id. (emphasis added).

11 D EL
. C ODE A NN
. tit 10, § 8119 (2015) (“No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained. . . .”).

12 M ICH

. C OMP

. L AWS A NN
. § 600.5805 (2015) (“The period of limitations is 3 years for a products liability action.”); Larson v. Johns

- Manville Sales Corp. , 399 N.W.2d 1, 9 (Mich. 1986) (plaintiffs alleging asbestosis “may bring a suit within three years of the tim e they discover or should have discovered their disease”).- 6

- filing was not borne of “fo rum shopping,” the Schultzes argue, the C ourt should

not apply the Borrowing Statute to “shorten” their limitations period. Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., Inc

. , 13 applies here, the Schultzes posit. In Saudi Basic our Supreme Court affirmed th is
C ourt’s refusal to apply the Delaware Borrowing S tatute to bar a defendant’s counterclaims, even though the counterclaims arose in a jurisdiction outside of
Delaware and that jurisdiction’s statute of limitations was longer than
Delaware’s. 14 The Court reasoned that “[t]he infirm ity in [plaintiff’s] argument is that its literal construction of the borrowing statute, if adopted, would subvert the statute’s underlying purpose.” 15 Delaware courts have subsequently held that Saudi Basic ’s situation

- specific holding is not as broad as the Schultz es suggest

. This Court, f or instance, has held
that Saudi Basic “did not create a broad rule banning the use of the borrowing statute in all situations except for the ‘typical’ scenario.” 16 Other courts have

13 866 A.2d 1 (Del. 2005).

14 Id. at *17

- 18.

15 Id. at * 16. The trial court found that the Saudi Basic plaintiffs had chosen Delaware in order to prevent the defendants from asserting timely cou nterclaims. Id. at *15 (citing to trial court transcript). It fou nd this was “somewhat of a twist . . . on the normal set of facts. . . [but that Delaware’s] legislature intended to prevent people out of state, foreign plaintiffs, from coming into this f orum and getting the benefit of a statute of limitations that really ought not to apply given the fact that the substantive law is interwoven with the procedural right.” Id.

16 Huffington v. T.C. Grp., LLC , 2012 WL 1415930, at *9 (Del. Super. Ct. Apr. 18, 2012). The “typical” scenario is one where a plaintiff with a stale claim arising outside of Delaware- 7

- agreed that Saudi Basic ’s narrow holding appli es only where a literal application of the statute would actually reward a forum

- shopping party

– a nonsensical result contrary to one of the statute’s primary purpose s
. 17
T he Court finds no reason that post

- Saudi Basic application of the Borrowing Statute in asbestos litigation should differ from these other contexts. Indeed, at its core an asbestos

- exposure action is a personal injury claim. Under
the Borrowing Statute’s clear and unambiguous terms , the Court must apply to such cla ims “the shorter of the Delaware statute of limitations or the statute of
limitations of the state where the cause of action arose

. . . . ” 18 S o , when a personal injury cause of action that arose outside of Delaware is time

- barred under the Delaware statute of limitations, the Court must apply the Delaware statute of
limitations. 19 Put another way, when a plaintiff alleg es person al injury, the
maximum lim itations period allowable to th at plaintiff is Delaware’s two

- year attempts to adjudicate it in Delaware, where it would not otherwise be time

- barred. See id. ; see also Saudi Basic Indus. Corp. v. Mobil Yanbu Petrotech nical Co., Inc. , 866 A.2d 1, * 16

- 17 (Del. 2005).

17 See TL of Florida, Inc. v. Terex Corp. , 54 F. Supp. 3d 320, 327 (D. Del. 2014); TrustCo Bank v. Mathews , 2015 WL 295373, at *8 (Del. Ch. Jan. 22, 2015) (“ [O] nly on a set of facts similar to Saudi Basic , where an absurd outcome or a result that subverts the Borrowing Statute’s fundamental purpose otherwise would occur, will a party be able to avoid the Borrowing Statute's unambiguous language”).

18 Elmer v. Tenneco Resins, Inc. , 698 F. Supp. 535, 539 (D. Del. 1988) (emphasis in original).

19 Burrell v. Astrazeneca LP , 2010 WL 3706584, at *4 (Del. Super. Ct. Sept. 20, 2010) (citing Elmer , 698 F. Supp. at 539); Plumb v. Cottle , 492 F. Supp. 1330, 1336 (D. Del. 1980); Amoroso v. Joy Mfg. Co. , 531 A.2d 619, 621 (Del. Super. Ct. 1987)).- 8

- statute of limitations

. 20 And i f the Court determines that Delaware ’s two

- year statute of limitations bars a plaintiff’s claims, it m ust then grant summary judgment
for the defen se
. 21
On t he facts of this case

– a cause of action arising in Michigan but brought
in Delaware

– Delaware’s Borrowing Statute applies. 22 There are no facts in the record indicating that applying the statute would result in an “absurd outcome” or “subvert the Borrowing Statute’s fundamental purpose

. ” 23 And so, the Court must apply i t here

. That , in turn, requires an application of Delaware’s shorter two

- year statute of limitations for personal injuries. 24 Viewing the record in the light most favorable to the no n
- moving party, here
the Schultz e s, the record reveals no genuine issue of fact exist s as to when the statute began to run, if it was ever tolled, or when the Complaint was filed.

20 Burrell , 2010 WL 3706584, at *3 (quoting Weber v. McDonald’s Sys. of Europe, Inc. , 660 F. Supp. 10, 14 (D. Del. 1985)).

21 Id. at *4

. 22 TrustCo Bank v. Mathews , 2015 WL 295373, at *8 (Del. Ch. Jan. 22, 2015) (“Presumptivel y. . . the Borrowing Statute does apply when a plaintiff ’ s cause of action arose out of state, irrespective of whether the plaintiff is forum shopping.”); see also D EL
. C ODE A NN
. tit 10, § 8121 (2015) (“Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state . . . where the cause of action arose , for bringing an action upon such cause of action. . . .”); Burrell , 2010 WL 3706584, at *4.

23 See TrustCo Bank , 2015 WL 295373, at *8.

24 See supra notes 11 & 12, quoting Delaware and Michigan’s statutory limitations periods.- 9

- Because Delaware’s statute of limitations expired before Mr. and Mrs. Schul tz brought their asbestos exposure claims here in Delaware, the Court must grant judgment as a matter of law to all Defendants.
IV. C ONCLUSION The Court finds that the Delaware Borrowing Statute applies here

. Because,
in contravention of 10 Del. C. §§ 8119 and 8121, the Schultz es filed file their Complaint after Delaware ’s two

- year statute of limitations ha d run , it is time

barred. The Court must therefore GRANT Defendants’ Motion for Summary Judgment. 25 The Complaint is hereby DISMISSED, with pre judice.
IT IS SO ORDERED.
/s/ Paul R. Wallace P aul R. Wallace, Judge Original to Prothonotary cc: All counsel via File & Serve

25 The Schultzes argue alte rnatively that should the Court grant the Defendants summary judgment, the Court should then also “permit” the Schultzes to file their claim s in Michigan. Pl.’s Resp. Br. 3 n.2. Yet they have failed to explain

– in either their briefing or at argument

– how this Court can do so. Th e viability of their asbestos claims in Michigan is a matter for the Michigan courts to decide

.