DiCenzo v. A-Best Prods. Co., Inc.

897 N.E.2d 132

120 Ohio St.3d 149

2008-Ohio-5327

DiCENZO et al., Appellees, v. A-BEST PRODUCTS COMPANY, INC. et al., Appellants.

No. 2007-1628.

Supreme Court of Ohio.

Submitted June 4, 2008.

Decided October 22, 2008.

Goldberg, Persky & White, P.C., Joseph J. Cirilano, Mark C. Meyer, David B. Rodes, Diana Nickerson Jacobs, and Jason T. Shipp, for appellees.

Willman & Arnold, L.L.P., and Ruth A. Antinone, for appellant George V. Hamilton, Inc.

Shook, Hardy, & Bacon, L.L.P., Victor E. Schwartz, Cary Silverman, and Mark A. Behrens, urging reversal for amici curiae Coalition for Litigation Justice Inc.; National Federation of Independent Business Legal Foundation; National Association of Wholesaler-Distributors; Chamber of Commerce of the United States of America; American Insurance Association; National Association of Mutual Insurance Companies; Property Casualty Insurers Association of America; and American Chemistry Council in support of appellant.

Ulmer & Berne, L.L.P., Bruce P. Mandel, Marvin L. Karp, and Max W. Thomas, Cleveland, urging reversal for amici curiae, Ceecorp, Inc.; Cleveland Oak, Inc.; Fisher Scientific Co., L.L.C.; The Edward Hart Co.; McMaster-Carr Supply Co.; P.C. Campana, Inc.; and Standard Glove & Safety Equipment Co.

Bonezzi, Switzer, Murphy, Polito & Hupp Co., L.P.A., William D. Bonezzi, Kevin O. Kadlec, Joseph T. Ostrowski, and Keith Hansbrough, Cleveland, urging reversal for amici curiae Donald McKay Smith, Inc.; F.B. Wright Co. of Cincinnati; Hersh Center Packing Co.; M.F. Murdock Co.; MVS Co., Inc.; and Yohe Supply Co.

Kelley, Jasons, McGowan, Spinelli & Hanna, L.L.P., and John A. Kristan Jr., Cleveland, urging reversal for amicus curiae Red Seal Electric Co.

Weston Hurd L.L.P. and Jennifer Riester, Cleveland, urging reversal for amici curiae Akron Gasket & Packing Enterprise, Inc.; Fidelity Builders Supply; and Graybar Electric Co., Inc.

Mansour, Gavin, Gerlack, & Manos Co., L.P.A., Samuel R. Martillotta, and Edward O. Patton, Cleveland, urging reversal for amicus curiae F.B. Wright Co.

Gallagher Sharp and Daniel J. Michalec, Cleveland, urging reversal for amicus curiae Glidden Co.

McMahon DeGulis, L.L.P., and Stephen H. Daniels, Cleveland, urging reversal for amici curiae Advance Auto Parts, Inc. and Sears Roebuck and Co.

Dickie, McCamey & Chilcote, P.C., Richard C. Polley, and Piero P. Cozza, Steubenville, urging reversal for amicus curiae Frank W. Schaefer, Inc.

Zimmer Kunz, P.L.L.C., Jeffery A. Ramaley, and Joni Mangino, urging reversal for amicus curiae Nitro Industrial Coverings, Inc.

Davis & Young, C. Richard McDonald, and Jennifer Sardina Carlozzi, Cleveland, urging reversal for amici curiae Asbeka

Industries of Ohio; Hill Building Supply, Inc.; and Nock Refractories Co., Inc.

Squire, Sanders & Dempsey, L.L.P., and Laura Kingsley Hong, Cleveland, urging reversal for amicus curiae Applied Industrial Technologies, Inc.

Reminger & Reminger Co., L.P.A., and Thomas R. Wolf, Cleveland, urging reversal for amicus curiae Ohio Pipe & Supply Inc.

Wayman, Irvin & McAuley, L.L.C., and Dale K. Forsythe, urging reversal for amicus curiae Gateway Industrial Supply.

Oldham & Dowling and Reginald S. Kramer, Akron, urging reversal for amicus curiae Fairmont Supply Co.

Roetzel & Andress, Susan Squire Box, and Brad A. Rimmel, Akron, urging reversal for amicus curiae C.P. Hall Co.

Swartz Campbell, L.L.C., and Kenneth F. Krawczak, Cleveland, urging reversal for amicus curiae Mau-Sherwood Supply Co.

Grogan Graffam, P.C., and Leo Gerard Daly, urging reversal for amicus curiae F.B. Wright Co. of Pittsburgh.

McLaughlin & McCaffery, L.L.P., and Dennis P. Zapka, Cleveland, urging reversal for amicus curiae R.E. Kramig & Co., Inc.

Baker & Hostettler, L.L.P., and Wade A. Mitchell, Cleveland, urging reversal for amicus curiae McGraw Construction Co, Inc.

Bricker & Eckler, L.L.P., Kurtis A. Tunnell, and Anne Marie Sferra, Columbus, urging reversal for amicus curiae Ohio Alliance for Civil Justice.

Karen R. Harned and Elizabeth A. Gaudio, urging reversal for amicus curiae National Federation of Independent Business Legal Foundation.

Keeley, Kuenn and Reid and George W. Keeley, urging reversal for amicus curiae National Association of Wholesale-Distributors.

Robin S. Conrad and Amar D. Sarwal, urging reversal for amicus curiae National Chamber Litigation Center, Inc.

Lynda S. Mounts and Kenneth A. Stoller, urging reversal for amicus curiae American Insurance Association.

Ann W. Spragans and Sean McMurrough, urging reversal for amicus curiae Property Casualty Insurers Association of America.

Greg Dykstra, urging reversal for amicus curiae National Association of Mutual Insurance Companies.

Donald D. Evans, urging reversal for amicus curiae American Chemistry Council.

LUNDBERG STRATTON, J.

I. Introduction

{¶ 1} In this case, we must determine whether our decision in Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, which imposed strict liability on nonmanufacturing sellers of defective products, applies retroactively to products sold before Temple was announced in 1977. Applying the three-part test in Chevron Oil Co. v. Huson (1971), 404 U.S. 97, 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296, we hold that Temple applies prospectively only. Accordingly, we reverse the judgment of the court of appeals.

II. Facts

{¶ 2} From the 1950s until 1993, Joseph DiCenzo was employed at the Wheeling-Pittsburgh Steel Corporation. DiCenzo held various positions during his employment at the mill, including tin-line laborer, tractor operator, piler, welding-machine operator, and tin-line operator. During this employment, DiCenzo was exposed to products that contained asbestos. Appellant George V. Hamilton, Inc. ("Hamilton") supplied insulation products that contained asbestos to the mill during DiCenzo's employment there. Hamilton did not manufacture these products. In 1999, DiCenzo experienced pleural effusion, and in the fall, doctors diagnosed DiCenzo with mesothelioma. Approximately three months later, he died.

{¶ 3} DiCenzo's wife, Genevieve DiCenzo, along with other plaintiffs, filed suit against approximately 90 defendants, including Hamilton, alleging strict liability, defective design, and failure to warn; negligent failure to warn; breach of warranty; conspiracy, concert of action, and common enterprise; alternative liability; and market-share liability.

{¶ 4} Hamilton filed a motion for summary judgment alleging that it was not strictly liable for supplying asbestos products prior to 1977 because Temple v. Wean, 50 Ohio St.2d 317, 4 O.O.3d 466, 364 N.E.2d 267, which in 1977 held nonmanufacturing suppliers liable for defective products, does not apply retroactively. The three-judge panel unanimously granted summary judgment to Hamilton on the strict-liability claim.

{¶ 5} The court of appeals applied the test in Chevron Oil, 404 U.S. at 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296, but held that Temple did not satisfy the criteria that support prospective-only application on the strict-liability claim. DiCenzo v. A-Best Prods. Co., Inc., Cuyahoga App. No. 88583, 2007-Ohio-3270, 2007 WL 1976735, ¶ 30. Therefore, the court of appeals held, Temple applied retrospectively. Id. The court of appeals remanded the cause for further proceedings on DiCenzo's strict-liability claims against Hamilton. Id. at ¶ 31.

{¶ 6} This cause is now before us pursuant to our acceptance of Hamilton's discretionary appeal. DiCenzo v. A-Best Prods. Co., Inc., 116 Ohio St.3d 1455, 2007-Ohio-6803, 878 N.E.2d 33.

{¶ 7} Hamilton argues that under Chevron Oil, Temple should receive prospective-only application. DiCenzo makes three arguments in response: (1) the general rule is that judicial decisions are applied retrospectively absent language indicating otherwise, and because Temple did not specify that it applies only prospectively, it applies retrospectively; (2) Harper v. Virginia Dept. of Taxation (1993), 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74, overruled Chevron Oil, and Harper requires retrospective application of all civil decisions; and (3) notwithstanding the test in Chevron Oil, Temple should be applied retrospectively.

III. Analysis

A. Chevron Oil Co. v. Huson

{¶ 8} Because Chevron Oil is central to the dispute before this court, we begin our analysis by examining its holding. In Chevron Oil, Huson filed a lawsuit in January 1968 against Chevron for injuries that he received while working on its drilling rig in December 1965. Chevron Oil Co. v. Huson, 404 U.S. at 98, 92 S.Ct. 349, 30 L.Ed.2d 296. When Huson filed his lawsuit, it was thought that admiralty law, not state law, applied and that the admiralty doctrine of laches determined the statute of limitations. Id. at 99, 92 S.Ct. 349, 30 L.Ed.2d 296. Chevron did not question the timeliness of Huson's complaint. Id.

{¶ 9} While respondent's case was pending, however, the court decided Rodrigue v. Aetna Cas. & Sur. Co. (1969), 395 U.S. 352, 366, 89 S.Ct. 1835, 23 L.Ed.2d 360, which held that state law applied to claims for personal injury on oil rigs. Relying on Rodrigue, the District Court in Chevron Oil held that the respondent's claim was barred by Louisiana's one-year statute of limitations. The court of appeals reversed. Huson v. Chevron Oil Co. (C.A.5, 1970), 430 F.2d 27.

{¶ 10} On appeal to the Supreme Court, Huson argued that Rodrigue should apply only prospectively. The court held that the answers to three questions determine whether a decision should apply prospectively only: (1) does the decision establish a new principle of law that was not clearly foreshadowed? (2) does retroactive application of the decision promote or hinder the purpose behind the decision? and (3) does retroactive application of the decision cause an inequitable result? Chevron Oil, 404 U.S. at 106-107, 92 S.Ct. 349, 30 L.Ed.2d 296. After examining these questions, the court concluded that (1) applying the Louisiana statute of...