



Attorneys for Appellant/
Cross-Appellee

George E. Purdy
George T. Patton
Stephanie F. Holtzlander
J. Taggart Birge
Bose, McKinney, & Evans
Indianapolis, Indiana


Attorneys for Amicus Curiae,
Defense Trial Counsel of Indiana

Julie Blackwell Gelinas
Nelson D. Alexander
T. Joseph Alexander
Lock, Reynolds, Boyd, & Weisell
Indianapolis, Indiana

James D. Johnson
Mattingly, Rudolph, Fine, & Porter, LLP
Evansville, Indiana













Attorneys for Appellees/
Cross-Appellants

Nancy G. Endsley
Landman & Beatty
Indianapolis, Indiana

Linda George
W. Russell Sipes
Laudig, George, Rutherford, & Sipes

Allard A. Allston, III
Timothy Eble

Ness Motley Loadholt Richardson & Poole
Charleston, South Carolina

Attorneys for Amicus Curiae,
Indiana Trial Lawyers Association

James O. McDonald
Everett, Everett, & McDonald
Terre Haute, Indiana

Max E. Goodwin
Hansford C. Mann
Bruce D. Aukermann
Mann Law Firm
Terre Haute, Indiana

Attorney for Amicus Curiae,
Indiana State afl-cio

William R. Groth
Fillenwarth, Dennerline, Groth, & Towe
Indianapolis, Indiana



      IN THE
      INDIANA SUPREME COURT


OWENS CORNING FIBERGLASS CORP.,
      Appellant/Cross-Appellee  (Defendant below)




)
)           Supreme Court No.
)     49S04-0001-CV-00033


      v.

DAVID COBB and Melissa Hinds, As Personal Representatives of the Estate of
Kenneth Cobb, Deceased,
)     Court of Appeals No.
)     49A04-9801-CV-46

)
)
)
)
)



      APPEAL FROM THE MARION COUNTY SUPERIOR COURT, CIVIL, NO. 2
      The Honorable Kenneth H. Johnson, Judge
      Cause No. 49D02-9501-MI-1-47



                           ON PETITION TO TRANSFER




                             September 10, 2001

SULLIVAN, Justice.


      A jury awarded plaintiff Kenneth Cobb damages, finding  that  asbestos
manufactured by Owens Corning caused him  serious  illness.   We  find  that
there was sufficient evidence of exposure to  Owens  Corning's  asbestos  to
permit Cobb to present his case to the jury.  But we reverse the jury  award
because  the  trial  court  incorrectly  prohibited   Owens   Corning   from
presenting evidence that at least  one  other  "nonparty"  manufacturer  may
also have been at fault.



                                 Background



      Kenneth Cobb worked as a pipe fitter from 1955 until he had to  retire
in 1995 because he was diagnosed with  lung  cancer.   Prior  to  developing
lung cancer, Cobb was diagnosed with asbestosis in October 1989.


      Cobb specialized in working on  refrigeration,  air  conditioning  and
heating systems, and pneumatic control systems.  For 40 years,  Cobb’s  work
required that he remove and replace asbestos insulation and wallboard,  walk
on asbestos blankets, disrupt asbestos-containing insulation  as  he  worked
on various systems, and cut and  fit  asbestos  tubing,  pipe,  and  sheets.



        On July 24, 1996, Cobb filed a complaint against 33 manufacturers or
distributors of asbestos,  including  Owens  Corning  Fiberglas  Corporation
(“Owens Corning”).  Cobb claimed that the defendants:


      produced, sold and otherwise put into, or caused to be put  into,  the
      stream  of  interstate  commerce,  asbestos  and   asbestos-containing
      materials which Defendants … knew, or in the exercise of ordinary care
      should have known were deleterious, poisonous and  highly  harmful  to
      [Cobb’s] body, lungs, respiratory system, skin and health.  [Cobb] was
      exposed to and inhaled, ingested or otherwise absorbed  great  amounts
      of asbestos fibers  causing  him  to  develop  the  asbestos  disease,
      asbestosis, and lung cancer.


Cobb sought both compensatory and punitive damages under “product  liability
theories of negligence, strict liability and breach of warranty.”   In  July
1996, Cobb also sought and was granted an expedited jury trial  because  his
lung cancer had metastasized to his brain and he did not have  a  long  life
expectancy.


      Owens Corning filed its answer on  August  19,  1996.   Among  the  34
affirmative defenses Owens  Corning  asserted,  it  reserved  the  right  to
object to any settlement and subsequent dismissal of any  defendant.   Owens
Corning also asserted a reserved right to amend its answer to  “specifically
delineate those defendants as  settling  non-party  defendants,  to  request
that the court add those defendants to any verdict  form  submitted  to  the
jury, and to claim credit for any amounts received  by  the  plaintiff  from
those defendants.”


      On September 26,  1997,  Cobb  filed  a  motion  for  partial  summary
judgment against Owens Corning as to  its  affirmative  defenses,  asserting
that Owens Corning had not presented sufficient evidence  to  support  them.
On November 4, 1997, the trial  court  granted  Cobb’s  motion  for  partial
summary judgment with respect to all of the affirmative defenses set out  in
Owens Corning’s original answer  except  for  the  defense  of  contributory
fault.


      Also on September 26, 1997, Owens Corning filed a motion  for  summary
judgment based upon lack of product identification,  arguing  that,  in  his
deposition, Cobb had failed “to provide any evidence  proving  that  he  was
exposed to asbestos-containing  products  manufactured  or  distributed”  by
Owens Corning.  On October 28, 1997, the trial court denied without  comment
Owens Corning’s motion for summary  judgment  based  upon  lack  of  product
identification.  The trial court’s ruling  against  Owens  Corning  on  this
motion is one of the two issues in this appeal.


      On October 15, 1997, Owens Corning also filed a motion  for  leave  to
amend its answer by adding  as  identified  non-parties  the  names  of  the
defendants with whom Cobb had settled, the Johns-Manville Trust,  and  other
entities which caused or contributed to Cobb’s injuries  and  had  not  been
joined as defendants.  In its order  issued  November  4,  1997,  the  trial
court granted Owens Corning’s motion to amend its  answer  as  to  the  non-
party defense of one non-party, Rutland Fire Clay,  but  denied  it  in  all
other respects.  The trial court’s ruling  against  Owens  Corning  on  this
motion is the other of the two issues in this appeal.


      After an eight-day trial in November 1997, a jury rendered its verdict
in favor of Cobb.  The jury awarded Cobb $689,782 in  compensatory  damages,
(which was offset by $145,100 that had  previously  been  paid  to  Cobb  by
other defendants), $15,000,000  in  punitive  damages,  and  $100  in  court
costs.[1]  Owens Corning appealed the trial court’s rulings on  the  product
identification  and  non-party  defense  motions.   The  Court  of   Appeals
reversed the trial court’s judgment on  the  product  identification  issue,
directing the trial court to enter an order granting Owens Corning’s  motion
for summary judgment, and rendering the non-party defense issue  moot.   See
Owens Corning Fiberglas Corp. v. Cobb, 714  N.E.2d  295,  303-04  (Ind.  Ct.
App. 1999).  Having previously granted transfer, we  now  review  the  trial
court’s  rulings  on  the  parties’  product  identification  and  non-party
defense motions.


      Additional facts will be provided as necessary.




                                 Discussion


      Our  standard  of  review  for  summary  judgment  appeals   is   well
established.  An appellate court faces the same issues that were before  the
trial court and follows the same process.  See Winkler v. V.G. Reed &  Sons,
Inc., 638 N.E.2d 1228, 1231 (Ind. 1994)  (citing  Greathouse  v.  Armstrong,
616 N.E.2d 364, 367 (Ind.  1993)).   The  party  appealing  from  a  summary
judgment decision has the burden of persuading the court that the  grant  or
denial of summary judgment was erroneous.  See  Greathouse,  616  N.E.2d  at
365 (citing Dept. of Revenue v. Caylor-Nickel Clinic, 587 N.E.2d 1311,  1313
(Ind. 1992)).  When a trial court  grants  summary  judgment,  we  carefully
scrutinize that determination to ensure that  a  party  was  not  improperly
prevented from having its day in court.   Id.;  Estate  of  Shebel  ex  rel.
Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind. 1999).


      Summary judgment is appropriate only if  the  pleadings  and  evidence
sanctioned by the trial court show that “there is no  genuine  issue  as  to
any material fact and that the moving party is entitled  to  judgment  as  a
matter of law.”  Ind. Trial Rule 56(C); see also Shell  Oil  Co.  v.  Lovold
Co., 705 N.E.2d 981, 983-84 (Ind. 1998).  On a motion for summary  judgment,
all doubts as to the existence of material issues of fact must  be  resolved
against the moving party.  See T. R. 56(C);  see  also  Butler  v.  City  of
Peru, 733 N.E.2d 912, 1915 (Ind. 2000); Stapinski v. Walsh Const.  Co.,  395
N.E.2d 1251,1253  (Ind.  1979).   Additionally,  all  facts  and  reasonable
inferences from those facts are construed in favor of the  nonmoving  party.
Stapinski v. Walsh Const. Co., 395 N.E.2d at 1253.  If there  is  any  doubt
as to  what  conclusion  a  jury  could  reach,  then  summary  judgment  is
improper.  See Hall Bros. Const. Co.,  Inc.  v.  Mercantile  Nat’l  Bank  of
Indiana, 642 N.E.2d 285, 289 (Ind. Ct. App. 1994) (“If a jury could come  to
different conclusions from the undisputed facts, then  summary  judgment  is
inappropriate.”); see also Bochnowski v. Peoples Fed.  Sav.  &  Loan  Ass’n,
571 N.E.2d 282, 285 (Ind. 1991); Woodward Ins., v. White, 437 N.E.2d 59,  62
(Ind. 1982) (“Summary judgment should not be granted if the facts give  rise
to conflicting inferences which would alter the outcome.”).

                                      I

      Owens Corning argues that it was wrongfully  denied  summary  judgment
because Cobb had failed  “to  provide  any  evidence  proving  that  he  was
exposed to asbestos-containing  products  manufactured  or  distributed”  by
Owens-Corning.  We do not address whether Owens  Corning  demonstrated  “the
absence of any genuine issue of fact as to a  determinative  issue,”  Jarboe
v. Landmark Comm. Newspapers of Indiana, Inc., 644  N.E.2d  118,  123  (Ind.
1994), because  we  find  that  Cobb  did  present  sufficient  evidence  to
establish a genuine issue of material fact as to exposure.


      Owens Corning contends that the record at summary judgment showed that
“Cobb could not identify a single occasion at which he had been  exposed  to
Kaylo.”  (Br. of Appellant/Cross-Appellee in Opp’n  to  Pet.to  Transfer  at
5.)  Therefore, according to Owens Corning, one could only speculate  as  to
whether Cobb had been exposed to Owens  Corning’s  product,  and  “testimony
based on conjecture or speculation is  insufficient  to  support  a  claim.”
(Id. at 7.)

      Cobb presented evidence that he was exposed to Kaylo asbestos when  he
worked as a pipe fitter for the Indianapolis Public Schools  (IPS).[2]    In
his deposition, Cobb  stated  that  while  working  for  IPS  he  worked  at
multiple sites where Kaylo asbestos products were being used.  He  remembers
seeing the boxes of the Kaylo asbestos products at some of the  sites.   And
although Cobb did not install the asbestos products, he  worked  near  other
workers who did.  Cobb also testified that he removed pipe covering and  was
exposed to asbestos dust as a result.


      Owens Corning contends, based on Cobb’s deposition, that Cobb was  not
certain whether he was exposed to Kaylo.[3]   Owens  Corning  argues,  “Cobb
could not recall the identity of a single  specific  worksite  in  which  he
actually observed workers installing Kaylo.”  (Appellant/Cross-Appellee  Br.
at 5).  Owens Corning also  points  out  that  although  Cobb  removed  pipe
covering, he did not know whose product he was removing.


      Cobb’s evidence  was  sufficient  to  establish  a  genuine  issue  of
material fact as to whether Owens Corning’s asbestos  caused  his  injuries.
While Owens Corning succeeded in identifying areas  of  uncertainty  in  the
record, they did not show that Cobb would not be able  to  prove  causation.
The Court of Appeals stated,  “Cobb’s  testimony  place[d]  an  undetermined
number of boxes containing Kaylo at an undetermined number of job  sites  at
which he worked.”  Owens, 714 N.E.2d  at  303.   However,  Cobb’s  testimony
established that Cobb worked at multiple sites where asbestos products  were
used;  Cobb  worked  near  people  installing  pipe  insulation   containing
asbestos; and boxes of Kaylo pipe insulation products were  present  on  the
work sites.  We find it to be a  reasonable  inference,  not  conjecture  or
speculation, that the insulation from the Kaylo boxes  was  being  installed
at the worksites where it was present and not simply being stored there.


                                     II


      When we grant transfer in an appeal, we  have  jurisdiction  over  all
issues in the case as if the appeal was  originally  filed  in  this  court.
Ind. Appellate Rule 11(B)(3).[4]  Because the Court of Appeals reversed  the
trial  court  on  Owens  Corning’s  lack  of  product  identification  claim
discussed in Part I, it did not address Owens Corning’s other claim in  this
appeal  relating  to  non-party  defendants.   Because  we  have  reached  a
different result from the Court of  Appeals  on  the  issue  that  it  found
dispositive, we are required to address  this  additional  claim.   On  this
issue, the summary judgment principles discussed in  Part  I  cut  in  Owens
Corning’s favor.


                                      A


      The procedural posture of this issue is complicated and,  although  we
shall attempt to delineate it with some precision in a moment, it  is  worth
stating at the outset that what is at  stake  is  whether  the  trial  court
committed reversible error when it did not permit Owens  Corning  to  assert
certain “nonparty” defenses.


      Under Indiana's comparative  fault  statute,  a  named  defendant  may
assert a "nonparty" defense,  seeking  to  attribute  fault  to  a  nonparty
rather than to the defendant.  See Ind. Code § 34-4-33-10(c) (1993);[5]  see
also Mendenhall v. Skinner & Broadbent Co., Inc., 728 N.E.2d 140, 142  (Ind.
2000).   The  Comparative  Fault  Act  modifies  the  common  law  rule   of
contributory negligence which precluded a victim from recovering damages  if
the  victim  was  even  slightly  negligent.    See   Mendenhall   at   142;
Indianapolis Power & Light Co. v. Brad Snodgrass, Inc., 578 N.E.2d 669,  672
(Ind.1991).  The Act permits a jury to allocate fault  among  parties.   The
burden of proof of a nonparty  defense  is  upon  the  defendant,  who  must
affirmatively plead the defense.  See Ind. Code §  34-4-33-10(b)  (1993).[6]



      Cobb’s complaint named multiple parties as defendants.  In its answer,
Owens Corning included affirmative defenses that  indicated  its  intent  to
assert nonparty defenses with respect to  any  named  defendants  with  whom
Cobb settled prior to trial and to any entities  with  whom  Cobb  may  have
settled prior to filing his complaint.  The pleading was general  in  nature
and did not name any specific nonparties that Owens  Corning  would  include
in the action.[7]


      On September 26, 1997, Cobb made a motion for partial summary judgment
as to Owens Corning’s affirmative defenses.  Cobb argued that there  was  no
evidence in the record by which Owens  Corning  could  meet  its  burden  of
proof as to affirmative defenses, including those asserting that a  nonparty
was responsible  for  Cobb’s  injuries.   In  his  motion,  Cobb  designated
portions  of  Owens   Corning’s   response   to   an   interrogatory.    The
interrogatory requested that Owens Corning disclose the names of  any  third
parties that Owens Corning believed to be partially responsible  for  Cobb’s
injuries.  Owens Corning had  responded  that  this  was  “unknown,  pending
completion of discovery, Owens Corning will  supplement  this  interrogatory
answer, if necessary, at that time.” [8]


      In response to Cobb’s motion for summary judgment, Owens  Corning  did
two things.  First, it filed a motion for leave to amend  its  answer,  this
time specifically naming each nonparty that it intended to add.  Second,  it
filed a  response  to  Cobb’s  motion  for  summary  judgment  in  order  to
designate evidence of each nonparty’s fault.


      Owens Corning’s motion for leave to amend  its  answer  was  filed  on
October 15, 1997.  Its proposed amended answer sought to add  as  identified
nonparties the names of the defendants  with  whom  Cobb  had  settled,  the
Johns-Manville Trust, and other entities that it  contended  had  caused  or
contributed to Cobb’s injuries and had not been joined as defendants.


      Owens Corning filed  its  opposition  to  Cobb’s  motion  for  summary
judgment contemporaneous to its motion for leave to amend its  answer.   The
opposition  to  summary  judgment  cross-referenced  its  proposed   amended
answers and designated evidence as to each party that  it  included  in  the
answer.  Owens Corning argued that there was at least a  material  issue  of
fact as to whether it would have been able to meet its burden  of  proof  to
show that each proposed nonparty contributed to Cobb’s injuries.


      Cobb then replied to  Owens  Corning’s  response  to  his  motion  for
summary judgment and responded to Owens Corning’s motion for leave to  amend
its answer.[9]  Cobb argued two reasons the trial court should disallow  the
nonparties proffered by Owens Corning.  First, Cobb argued that some of  the
parties were not added in a timely manner according to Indiana Code §  34-4-
33-10(c) (1993).[10]  Second, Cobb argued that Owens Corning  did  not  have
sufficient  evidence  to  prove  that  a  nonparty  contributed  to   Cobb’s
injuries.


      The bottom line on this lengthy procedural  recitation  is  that  Cobb
sought summary judgment on two  grounds  with  respect  to  Owens  Corning’s
nonparty affirmative defenses:  (1) that  there  was  no  genuine  issue  of
material fact that the nonparties were not responsible for Cobb’s  injuries;
and (2) that as a matter of law  Owens  Corning  was  out  of  time  to  add
nonparty defendants.


      As might be expected, the trial court ruled on  both  Owens  Corning’s
motion to amend and Cobb’s motion for summary judgment  at  the  same  time.
The court’s order granted Cobb’s motion for partial summary judgment  as  to
the affirmative defenses and denied Owens Corning’s  amended  answer  as  to
all but one party, Rutland Fire Clay.[11]  The trial court’s order  did  not
explain its ruling and it is impossible to  know  whether  the  trial  court
could have excluded nonparties based  on  Cobb’s  timeliness  argument,  his
evidentiary argument, or for some other reason.


                                      B


      Two of the entities with respect to  which  Owens  Corning  sought  to
assert a nonparty affirmative defense were Sid Harvey Industries, Inc.,  and
Sid Harvey Midwest, Inc. (collectively, "Sid Harvey").  As noted, the  trial
court granted summary judgment to Cobb  with  respect  to  this  (and  Owens
Corning's other) affirmative defenses.


      To the extent that Cobb claimed that there was no evidence that he had
been exposed to asbestos for which Sid Harvey was responsible, Cobb's  claim
is the mirror  image  of  that  asserted  by  Owens  Corning  in  the  issue
discussed in Part I of this  opinion.   Had  the  trial  court  allowed  Sid
Harvey as a nonparty defendant at trial, Owens Corning would  have  had  the
burden of proving that it contributed to Cobb’s injuries.   But,  like  Part
I, we find that Owens Corning presented  evidence  of  a  genuine  issue  of
material fact as to Cobb’s exposure to Sid Harvey asbestos.


      There was designated material  in  the  record  that  Cobb  personally
ordered asbestos materials from Sid Harvey.  Cobb  testified  that  he  used
Sid Harvey Asbestos Retort and Furnace  Cement  (which  would  fracture  and
fall to the floor releasing asbestos dust into the air), that he  also  used
Sid Harvey Mica Back Fill (a loose material that  released  asbestos  fibers
into the air as he poured the material into combustion chambers);  and  that
he used Sid Harvey Sic-Tits and Sid  Harvey  asbestos  rope  packing  around
boiler and furnace doors as insulation which was dusty when he  scraped  it.
Cobb testified that he used these  asbestos-containing  products  on  almost
every job site from 1964 through 1977, a period of 13 years.   In  fact,  in
response to Owens Corning's designated evidence,  Cobb  said  in  his  reply
brief that Owens Corning "provide[d]  sufficient  evidence  of  exposure  to
avoid summary judgment as to [Sid Harvey]."


      Cobb also made a legal argument as to why he was entitled  to  summary
judgment as a matter of  law.   He  contended  that  many  of  the  nonparty
defendants that Owens Corning sought to add  were  not  added  in  a  timely
manner and were therefore barred by Ind. Code  §  34-4-33-10(c)  (1993).[12]



      The Products Liability Act limits a defendant’s liability according to
its proportion of fault.  Ind. Code § 34-20-7-1.  Because of this, there  is
an incentive for defendants to  include  nonparties  who  will  share  in  a
proportion of fault.


      To ensure fairness to  the  plaintiff,  the  burden  of  pleading  and
proving the specific name of the nonparty  is  on  the  defendant.   Cornell
Harbison Excavating, Inc.  v.  May,  546  N.E.2d  1186,  1187  (Ind.  1989).
Therefore,  a  defendant  who  intends  to  use  a  nonparty  defense   must
specifically name the nonparty.  Id.  Additionally, Indiana Code §  34-4-33-
10(c)  requires  that  a  defendant  disclose  the  identity   of   nonparty
defendants within a certain time frame, thus giving the plaintiff notice  of
any nonparty defendants that the defendant intends to add.


      The provision requiring notice of  nonparty  defendants  advances  the
Products  Liability  Act’s  policy  of  proportional  allocation  of  fault.
Giving notice to the plaintiff of nonparty defendants to be added gives  the
plaintiff the opportunity to add nonparties as  party  defendants.   Cornell
Harbison, 546 N.E.2d at 1187.


      The deadline for naming a nonparty defendant  depends  upon  when  the
defendant receives notice of the availability of a certain nonparty to  add.
 Indiana Code § 34-4-33-10(c) states:


           A nonparty defense that is known  by  the  defendant  when  [the
      defendant] files [the defendant’s] first answer shall be pleaded as  a
      part of the first answer.  A defendant who gains actual knowledge of a
      nonparty defense after the filing of an answer may plead  the  defense
      with reasonable promptness.  However, if the defendant was served with
      a complaint and summons more than one hundred fifty (150) days  before
      the  expiration  of  the  limitation  of  action  applicable  to   the
      claimant’s claim against the nonparty, the defendant shall  plead  any
      nonparty defense not  later  than  forty-five  (45)  days  before  the
      expiration of that limitation of action.  The trial  court  may  alter
      these time limitations or make other suitable time limitations in  any
      manner that is consistent with:  (1) giving the defendant a reasonable
      opportunity to discover the existence of a nonparty defense;  and  (2)
      giving the claimant a reasonable opportunity to add the nonparty as an
      additional defendant to the action before the expiration of the period
      of limitation applicable to the claim.


      Owens Corning knew of all the companies that it  intended  to  add  as
nonparties well before it named them.  On November 1,  1996,  Cobb  filed  a
verified disclosure statement that listed the  name  or  type  of  asbestos-
containing product or item to which Cobb was exposed,  as  well  as  all  of
Cobb’s former employers that he worked for at the  time  of  each  exposure.
The list contained all  of  the  parties  that  Owens  Corning  subsequently
sought to add as nonparty defendants.   It  appears  therefore,  that  Owens
Corning had notice of all these entities  as  early  as  November  1,  1996,
nearly a year prior to naming them in  its  October  15,  1997,  motion  for
leave to amend its answer.


      Although Owens Corning knew of all the entities early on, many of them
(including Sid Harvey) were named  defendants  from  the  outset.   We  will
return to this category of  entities  in  a  moment.   The  balance  of  the
entities, however,  were  never  named  as  defendants  and  were  therefore
available for Owens Corning to add  as  nonparties  at  least  as  early  as
November 1, 1996.  According to § 34-4-33-10(c), these parties  should  have
been added with “reasonable promptness”  after  November  1,  1996.[13]   It
therefore appears – although we do not  decide  –  that  the  trial  court’s
grant of summary judgment is sustainable on this legal theory  with  respect
to nonparty affirmative defenses relating to these entities.  See  Intelogic
Trace Texcom Group, Inc. v. Merchants Nat’l Bank, 626 N.E.2d 839, 846  (Ind.
App. Ct. 1993) (a trial court's grant of summary judgment will  be  affirmed
on any legal theory the evidence of record supports).


      The other parties that Owens Corning attempted to  add  as  nonparties
had  been  named  as  defendants  at  the  outset  of  the  litigation   and
subsequently settled with Cobb or were otherwise dismissed from the  action.
 There were two obvious consequences of the fact  that  these  parties  were
named defendants.  First, since they were named defendants, they  could  not
be added as nonparties.  Second, they were known to the plaintiff.


      The language of Indiana Code § 34-4-33-10(c) (now Indiana Code § 34-51-
2-16) states that, “[a] defendant who gains actual knowledge of  a  nonparty
defense after the filing of an answer may plead the defense with  reasonable
promptness.”  (emphasis added).  Because the former  party  defendants  that
Owens Corning sought to add as nonparties could  only  have  been  added  as
nonparties after they were dismissed as parties, we hold that  for  purposes
of the statute, Owens  Corning  acquired  actual  knowledge  of  a  nonparty
affirmative defense relating to a particular entity only  when  it  received
notice that the  entity  had  been  dismissed  from  the  action.   To  hold
otherwise would be tantamount  either  to  requiring  Owens  Corning  to  do
something impossible—assert a nonparty affirmative defense with  respect  to
a named defendant—or to preclude Owens Corning  from  asserting  a  nonparty
affirmative defense at all with respect to a  former  named  defendant.   We
find no support in the statute or its  underlying  purposes  for  either  of
these alternatives.  Rather, it is clear to us that  the  notice  provisions
with respect to  nonparty  affirmative  defenses  are  designed,  first  and
foremost, to advise plaintiffs of  potential  named  defendants  from  which
they may be able to obtain recovery and, secondarily, to put  plaintiffs  on
notice generally of the contours of  the  defendant's  case  at  trial.   No
violence is done to either of those objectives by permitting a defendant  to
assert a nonparty affirmative defense reasonably  promptly  after  receiving
notice  that  a  named  party  defendant  has  been   dismissed   from   the
lawsuit.[14]


      It appears from the record that Owens Corning did not have notice that
certain defendants settled until just prior  to  the  start  of  the  trial.
This appears to have been the case with respect  to  Sid  Harvey.   We  find
that Owens Corning therefore named Sid Harvey within a  reasonable  time  of
receiving notice.  As to the other entities in this category,  it  therefore
appears – although we do not decide  –  that  the  trial  court’s  grant  of
summary judgment was not sustainable under this legal theory.

                                      C


      We conclude that the trial court committed reversible  error  when  it
granted summary judgment to Cobb with respect to  Owens  Corning's  nonparty
affirmative defense relating to Sid Harvey.  Because Owens Corning  did  not
have the opportunity to present to the jury its  claim  that  a  portion  of
Cobb's injuries should be allocated to  Sid  Harvey,  the  judgment  of  the
trial court must  be  reversed.   Because  we  find  that  the  trial  court
committed  reversible  error  with  respect  to  this  nonparty  affirmative
defense, it is not necessary for us to decide whether the  trial  court  was
correct or not when it granted summary judgment  to  Cobb  with  respect  to
Owens Corning's other proposed nonparty affirmative  defenses.   We  believe
this opinion provides the trial court with sufficient guidance to make  such
determinations to the extent requested and necessary on remand.[15]


                                     III


      In a cross-appeal, Cobb contends that Indiana Code §  34-4-34-5,  [16]
which imposes limitations on the award of punitive damages in civil  actions
is unconstitutional.  Because we have set aside the judgment  of  the  trial
court in its entirety, we do not address  this  issue  at  this  time.   See
Citizens Nat’l Bank of Evansville v. Foster, 668 N.E.2d  1236,  1241   (Ind.
1996)  (“‘[C]ourts will not pass upon a constitutional question, and  decide
a statute to be invalid, unless a decision  upon  that  very  point  becomes
necessary to the determination of the  cause.   This  court  has  repeatedly
held that questions of this  character  will  not  be  decided  unless  such
decision is absolutely necessary to  a  disposition  of  the  cause  on  its
merits.’”) (quoting State v. Darlington, 153 Ind. 1, 4,  53  N.E.  925,  926
(1899)).

                                 Conclusion

      Having granted transfer, thereby vacating the opinion of the Court  of
Appeals, we now affirm the trial court's denial of  Owens  Corning's  motion
for summary judgment, reverse the trial court's grant of Cobb's  motion  for
summary judgment  with  respect  to  Owens  Corning's  nonparty  affirmative
defense relating to Sid Harvey, and reverse the trial  court's  judgment  in
favor of Cobb.   We  remand  this  case  to  the  trial  court  for  further
proceedings consistent with this opinion.  The court has been  advised  that
Owens Corning has filed for bankruptcy with  the  United  States  Bankruptcy
Court for the District of Delaware, case No. BK 00-3837.  This  decision  is
subject to applicable rules of bankruptcy law.


      SHEPARD, C.J., and DICKSON, BOEHM, and RUCKER, JJ., concur.
-----------------------
      [1] Both parties filed motions to correct errors with respect  to  the
damage awards.   Cobb  now  appeals  the  trial  court’s  reduction  of  his
punitive damage award to $1,634,046,  pursuant  to  limits  enacted  by  the
legislature in 1995 (the “Punitive Damage Limitations”).  Ind. Code §§ 34-4-
6, 34-4-34-3, and 34-4-34-5 (1993), recodified in 1998 as  Indiana  Code  §§
34-51-3-5, 34-51-31-3, and 34-51-3-6, outlined in Indiana’s Tort Claims  Act
and identified by Owens Corning in one of its  motions  to  correct  errors.
Cobb claims that the Punitive Damage  Limitations  unconstitutionally  limit
his right to punitive damages  and  argues  that  his  compensatory  damages
should not have been offset by amounts received from settlements with  other
defendants.  In light of our decision on the non-party defense  issue  infra
and remand for  new  trial,  we  decline  to  address  Cobb’s  punitive  and
compensatory damages claims.
      [2] Cobb’s deposition contains the following colloquy:
Q:  Sir, have you ever, to your knowledge, been on a job  site  where  Kaylo
was being installed?
      A:  Yes.
      Q:  And do you believe that on those job sites  you  were  exposed  to
any airborne asbestos particles?
      A:  If the insulators are installing pipe covering and I’m working  in
the same area as they are, yes, I would have been exposed to  some  airborne
particles.
      * * *
Q:  …Was OCF Kaylo present somewhere where you worked?
A:  Yes, if I was in the school and there  were  insulators  working  around
me, they were using some  of  that,  and  they  were  also  at  times  using
Armstrong.
* * *
Q:  Tell me how you know OFC Kaylo was used?
A:  As I would be around the job site, I would see the boxes.

      [3]Cobb’s deposition also contains the following colloquy:
Q:  Have you personally ever installed Kaylo?
A: No.
Q:  Have you personally ever removed Kaylo, to your knowledge?
A:  Well, I have removed pipe covering that has not  been  identified….   So
when I remove[d] it, I have no idea who manufactured it.
      * * *
Q:  When do you recall first being on an IPS school site where  you  believe
Kaylo was being installed?
A:   It would have been 1963 or 1964.
Q:  Which school do you recall, if at all?
A:  I don’t.
Q:  You don’t?
A:  No.
(R. at 1151-1153; Deposition of Kenneth Cobb)

      [4]  Ind. Appellate Rule 56(A), effective January 1, 2001.


      [5]  Recodified in 1998 as Indiana Code § 34-51-2-14.

      [6]  Recodified in 1998 as Indiana Code § 34-51-2-15.

      [7]  Owens Corning’s 34th Affirmative Defense:
      To the extent plaintiff has entered into a settlement  agreement  with
      any party prior to  the  filing  of  this  Complaint,  or  the  extent
      plaintiff enters  into  a  settlement  agreement  with  any  defendant
      subsequent to the filing of this Complaint, [Owens  Corning]  reserves
      the right to object to that settlement and dismissal of any defendant.
       [Owens Corning] further reserves the right to amend  this  Answer  in
      the future to specifically delineate those defendants as settling non-
      party defendants, to request that the court add  those  defendants  to
      any verdict form submitted to the jury, and to claim  credit  for  any
      amounts received by the plaintiff from those defendants.
(R. at 114-15.)
      [8]  Interrogatory No. 47 K inquired:
Do you contend that [plaintiff’s]  illness  was  due  to  friable  or  loose
asbestos from the asbestos products of any other company?  If so:
(1)  The identity of each such  company  and  the  name  and  type  of  that
company’s product which you contend caused plaintiff’s illness;
(2)  The alleged dates of installation;
(R. at 890.)
Owens Corning responded:  “Owens Corning may so contend, depending upon  the
evidence  developed  in  the  course  of  discovery.   Owens  Corning   will
supplement this interrogatory answer at that time, if necessary.”
(R. at 900.)


      [9]  In Cobb’s reply to Owens Corning’s response  to  his  motion  for
summary judgment, he noted that Owens  Corning  relied  on  its  motion  for
leave to amend its answer and that he would respond as if  that  motion  had
been granted.
      [10]  Recodified in 1998 as Indiana Code §34-51-2-16.


      [11] The trial court’s grant of summary judgment with respect  to  all
nonparty affirmative defenses while permitting Owens Corning  to  amend  its
complaint to add nonparty Rutland Fire Clay seems contradictory.  At  trial,
Rutland was dismissed as a nonparty defendant  on  Owens  Corning’s  motion.
Cobb argues on appeal that by so moving, Owens Corning has waived any  claim
of error with respect to Rutland.  Owens Corning responds  that  its  motion
simply recognized that the trial court had granted summary judgment  against
on all nonparty  affirmative  defenses.   Our  ultimate  resolution  of  the
nonparty issue makes it unnecessary for us to untangle this knot.
[12] Recodified in 1998 as Indiana Code § 34-51-2-16.
      [13] Two sections of the statute appear  to  modify  this  "reasonable
promptness" requirement.  On the one  hand,  Indiana  Code  §  34-4-33-10(c)
(recodified in 1998 as Indiana Code §  34-51-2-16)  provides  that  where  a
defendant is served with a complaint and summons more than 150  days  before
the expiration of the limitation of action  applicable  to  the  plaintiff's
claim against a nonparty, the defendant may not plead any  nonparty  defense
later than 45 days before the expiration of that limitation of  action.   On
the other hand, Indiana Code §§  34-4-33-10(c)(1)  and  (2)  (recodified  in
1998 as Indiana Code §§ 34-51-2-16(1) and (2)) permit  the  trial  court  to
alter the time limitations of the notice requirement.

      [14] We would find it to be within the discretion of the trial  court,
as a matter of case management, to establish an  orderly  procedure  in  any
given case for  the  potential  dismissal  of  named  party  defendants  and
assertion of nonparty affirmative defenses with respect to those entities.
      [15] In arguing against the  exclusion  of  its  nonparty  affirmative
defenses, Owens Corning contends that one of the  nonparties,  the  Manville
Trust, presents a special case to which  the  time  limitations  of  Indiana
Code § 34-51-2-16 should not apply.  The Manville Trust was  established  as
the sole source  of  compensation  for  claimants  injured  by  exposure  to
Manville’s asbestos products.  As of the  spring  of  1990,  the  Trust  was
effectively insolvent.  See  In  re  Joint  Eastern  and  Southern  District
Asbestos Litigation, 120 B.R. 648 (E. &  S.D.N.Y.,  Bankr.  S.D.N.Y.  1990).
Subsequently, a class action settlement was  approved  by  the  Eastern  and
Southern District of New York courts in  1991.   In  re  Joint  Eastern  and
Southern District Asbestos Litigation, 129 B.R. 710 (E.  &  S.D.N.Y.  1991).
The settlement included a  Trust  Distribution  Process  to  distribute  the
limited  trust  assets  among  its   beneficiaries   and   rules   for   the
apportionment of fault among parties and nonparties in state  tort  actions.
The trial court is free on  remand  to  reconsider  its  determination  that
Owens Corning not be permitted to  assert  a  nonparty  affirmative  defense
with respect to the Manville Trust.
      [16] Recodified as Indiana Code 34-51-3-5 (1998).

