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Carolyn Robinson et al v. Ssw

September 21, 2012


(San Francisco County Super. Ct. No. CGC-06-457534)

The opinion of the court was delivered by: Jenkins, J.


This is an appeal from final judgment after the trial court granted the motion for summary judgment filed by defendant and respondent SSW, Inc. The decedent in this wrongful death action, a California resident, died of mesothelioma, an asbestos-related cancer. The trial court granted summary judgment to SSW, Inc., a Nebraska company, on two distinct grounds. First, the trial court found that, pursuant to the Nebraska corporate survival statute, the decedent's heirs are barred from suing SSW, Inc. because the company was dissolved in 2002, over five years before it was brought into this lawsuit. Second, the trial court found no triable issue of fact with respect to whether decedent had been exposed to an asbestos-containing product manufactured, distributed or sold by SSW, Inc. On appeal, plaintiffs challenge both findings by the trial court and ask this court to reverse the judgment against them. For reasons discussed below, we affirm.


Douglas G. Robinson (decedent) died on November 10, 2005, at the age of 64 from mesothelioma, a cancer linked to asbestos exposure. On November 1, 2006, decedent's wife, Carolyn Robinson, and their three children, Donna, Aaron and Paul Robinson (collectively, plaintiffs) filed a complaint for wrongful death and survival, alleging that decedent's death was caused by his occupational exposure to asbestos. The complaint, which was later amended, alleged in particular that decedent was harmed by asbestos-containing boilers or boiler components manufactured, distributed or sold by Nebraska Boiler Company, Inc. (Nebraska Boiler). Nebraska Boiler, in turn, was a division of National Dynamics Corporation, which later became known as SSW, Inc. (defendant or SSW).

Decedent worked as a boiler tender and boiler repairman, first, in the United States Navy from 1958 to 1969 and, second, at a fruit cannery in Modesto owned by the Signature Fruit Company, formerly known as Tri-Valley Growers (Tri-Valley) from 1969 to 1971 and again from approximately 1973 to 2000. At Tri-Valley, the relevant work site for our purposes, decedent was in charge of maintenance, including all aspects of cleaning and repair, for all boilers housed at Plant No. 7 ("Plant No. 7").*fn1

Plant No. 7 was just one of several plants located on the premises of Tri-Valley in Modesto. Plant No. 7 was constructed in 1969 with two brand new boilers. In 1974, a third boiler was added and, by the early 1980's, there were four to five boilers housed within the plant. Plant No. 7 used these boilers to generate steam to, among other things, operate the fruit canning machinery.

In the early 1970s, Tri-Valley purchased two boilers from Nebraska Boiler that were shipped to its Modesto facility, one in 1973 and the other in 1974. An SSW corporate representative acknowledged that, during this time period, some Nebraska boilers may have been equipped with asbestos-containing manway gaskets manufactured by third parties.*fn2 Purchase orders and shipping invoices reflect that at least some of the components on the two Nebraska boilers shipped to Tri-Valley in 1973 and 1974 contained asbestos. The boilers did not contain warning labels advising of the health risks associated with asbestos.

On June 1, 2002, SSW, of which Nebraska Boiler was a division, dissolved as a corporation, publishing the requisite notice of dissolution in a Nebraska newspaper. Over four years later, on November 1, 2006, this lawsuit was filed in California court naming several defendants, but not SSW, as well as several "Doe" defendants. SSW was then added as a defendant in a "Doe" amendment filed February 18, 2009.*fn3

On August 27, 2010, SSW moved for summary judgment on two grounds. First, SSW asserted that, as a dissolved Nebraska company subject to Nebraska's five-year corporate survival statute (Neb. Rev. Stat. § 21-20,157), it was immune from suit. Second, SSW argued there was no evidence decedent had any contact with an asbestos-containing product placed into the stream of commerce by Nebraska Boiler and, thus, no evidence that SSW caused his injuries.

Plaintiffs responded that SSW was subject to California's corporate survival statute rather than Nebraska's statute, and thus was not immune from suit. In addition, plaintiffs offered the deposition testimony of one of decedent's former co-workers at Tri-Valley, Lindon Brumley. According to Brumley's testimony, decedent did a variety of repair and maintenance work on the Nebraska boilers at Plant No. 7 from "1973, I think" until the 2000s, which work included dust-producing tasks such as removing and replacing gaskets and removing insulation. Plaintiffs also relied upon purchase orders and shipping invoices produced in this case by Tri-Valley to show that Nebraska Boiler shipped asbestos-containing products to Tri-Valley Modesto in 1973 and 1974. Finally, plaintiffs presented the declaration of expert William Longo, who opined that decedent would have been exposed to asbestos while performing tasks on the Nebraska boilers such as removing old refractory cement from inside the boilers and removing and replacing gaskets on the manholes of the boilers.

After a contested hearing on SSW's summary judgment motion, the trial court found that plaintiffs' lawsuit was barred by Nebraska's five-year corporate survival statute for dissolved corporations. (Neb. Rev. Stat. § 21-20,157.) In so ruling, the trial court rejected plaintiffs' argument that California's corporate survival statute, Corporations Code section 2010, controlled in this case. Rather, the trial court ruled that the Nebraska corporate survival statute controlled, reasoning that Corporations Code section 2010 applies only to domestic corporations, not to foreign corporations like SSW. Further, the trial court found that even if Corporations Code section 2010 applied, SSW would nonetheless be entitled to summary judgment because there was no triable issue of fact regarding decedent's exposure to asbestos-containing products attributable to SSW. As such, the trial court granted the motion and entered judgment in favor of SSW, prompting this timely appeal.


On appeal, plaintiffs raise the same arguments they raised before the trial court with respect to corporate survivorship and asbestos exposure. For reasons set forth below, we conclude the trial court properly granted summary judgment on the ground that SSW is immune from suit under the applicable corporate survival statute - to wit, Nebraska Revised Statutes section 21-20,157. As such, we need not reach the asbestos exposure issue. In explaining our ...

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