      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE 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, Christopher 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 Associates, P.A., Hockessin, Delaware, Donald E.
Reid (argued), Morris, Nichols, Arsht & Tunnell LLP, Wilmington, Delaware,
Attorneys for Defendants.

WALLACE, J.
      I.      INTRODUCTION

           Plaintiff Frank Schultz brings this asbestos action against numerous

defendants alleging 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. He 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 in July, 2015, the Court reserved its decision on Defendants’

motions 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.      FACTUAL AND PROCEDURAL HISTORY

           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 deposition, he testified that he was diagnosed

with lung cancer in June, 2010, at a yearly physical. 2 The Schultzes 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.
                                                  -2-
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 the

parties have stipulated, with the Court’s approval, that Delaware law governs the

procedural issues, while Michigan law governs the substantive issues in this case.4

    II.       STANDARD OF REVIEW

          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 of 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 and 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).

                                                 -3-
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.   DISCUSSION

       The parties do not dispute that the statute of limitations began to run in 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 2013.      The parties disagree, however, as to which state’s statute of

limitations applies – Delaware’s or Michigan’s.

       In turn, the sole issue for the Court to decide is: does the Delaware

Borrowing Statute apply to bar the Schultzes’ claims? Section 8121 of 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 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. . . . 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
       DEL. CODE ANN. tit. 10, § 8121 (2015).

                                                -4-
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 statute 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

cause of action arose in Michigan and Delaware provides the shorter of the two

limitations periods. They argue that because the Schultzes 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 Schultzes, for their part, contend an application of the Borrowing

Statute on the facts of this case would subvert its underlying purpose.                     That

statute’s sole purpose, in their view, is to address forum shopping by preventing

Delaware courts from adjudicating stale claims from elsewhere. Because their
10
       Id. (emphasis added).
11
       DEL. CODE ANN. 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
         MICH. COMP. LAWS ANN. § 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 time they discover or
should have discovered their disease”).




                                               -5-
filing was not borne of “forum shopping,” the Schultzes argue, the Court 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 this

Court’s refusal to apply the Delaware Borrowing Statute 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 infirmity 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 Schultzes suggest. This Court, for 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 counterclaims. Id. at *15 (citing to trial
court transcript). It found 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 forum 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
                                                -6-
agreed that Saudi Basic’s narrow holding applies 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 purposes. 17

       The 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 claims “the shorter of the Delaware statute of limitations or the statute of

limitations of the state where the cause of action arose. . . .”18 So, 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 alleges personal injury, the

maximum limitations period allowable to that 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 Petrotechnical 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)).

                                              -7-
statute of limitations. 20 And if the Court determines that Delaware’s two-year

statute of limitations bars a plaintiff’s claims, it must then grant summary judgment

for the defense. 21

       On the 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 it 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 non-moving party, here

the Schultzes, the record reveals no genuine issue of fact exists 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)
(“Presumptively. . . 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 DEL. CODE ANN. 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.

                                                  -8-
Because Delaware’s statute of limitations expired before Mr. and Mrs. Schultz

brought their asbestos exposure claims here in Delaware, the Court must grant

judgment as a matter of law to all Defendants.

     IV.   CONCLUSION

       The Court finds that the Delaware Borrowing Statute applies here. Because,

in contravention of 10 Del. C. §§ 8119 and 8121, the Schultzes filed file their

Complaint after Delaware’s two-year statute of limitations had run, it is time-

barred. The Court must therefore GRANT Defendants’ Motion for Summary

Judgment. 25 The Complaint is hereby DISMISSED, with prejudice.

       IT IS SO ORDERED.

                                             /s/ Paul R. Wallace
                                             Paul R. Wallace, Judge

Original to Prothonotary
cc: All counsel via File & Serve




25
       The Schultzes argue alternatively that should the Court grant the Defendants summary
judgment, the Court should then also “permit” the Schultzes to file their claims 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. The viability of their asbestos claims in Michigan is a matter for the
Michigan courts to decide.

                                               -9-
