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Fleming v. International Paper Co.

Court of Workers Compensation of Montana

July 8, 2005

ELDON FLEMING Petitioner
v.
INTERNATIONAL PAPER COMPANY, as successor-in-interest to CHAMPION INTERNATIONAL COMPANY, and LIBERTY NORTHWEST INSURANCE CORPORATION Respondents.

          Submitted: June 6, 2005

          DECISION AND ORDER GRANTING INTERNATIONAL PAPER COMPANY'S MOTION TO DISMISS

          MIKE MCCARTER JUDGE.

         Summary: The claimant alleges he suffers from asbestos-related lung disease as a result of his employment at a Libby, Montana, lumber mill from 1960 to May 28, 1998. The mill was owned by Champion International Company until November 1, 1993. It was thereafter owned by Stimson Lumber Company, which is insured by Liberty Northwest Insurance Corporation. International Paper Company, which later merged with or acquired Champion, moves to dismiss the petition, alleging that it is barred by the statute of limitations found in section 39-72-403, MCA, and also moves for summary judgment respecting the claimant's request for indemnity benefits.

         Held: Statutes of limitation are procedural, thus the limitations period in effect at the time the petition is filed applies. The period for filing a written occupational disease claim in this case is therefore governed by 2003 law. The 2003 version of section 39-72-403, MCA, required the claimant to file his occupational disease claim within one year of learning that he was suffering from an occupational disease. Since his petition shows that he filed his claim against International Paper Company more than one year after learning of his alleged disease, his claim is barred.

         Topics:

Procedure: Motion to Dismiss. Motions to dismiss are viewed with disfavor and will be granted only where the allegations of the petition or complaint either shows that the petitioner is not entitled to relief of any sort or discloses an "insuperable bar" to recovery, such as the running of the applicable statute of limitations.
Procedure: Motion to Dismiss. For purposes of the motion, all well-pleaded allegations of the petition are deemed true.
Limitations Periods: Claim Filing: Occupational Disease. The limitations period in effect on the date the claim is filed governs the timeliness of the claim.
Limitations Periods: Claim Filing: Occupational Disease. Where an occupational disease claim is filed in March 2004, section 39-72-403, MCA (2003), which was in effect on the date of filing, applies in determining the timeliness of the claim.
Limitations Periods: Retroactivity. A statute of limitations is procedural. Therefore, the statute in effect at the time an action or a claim is filed governs its timeliness.
Statutes: Retroactivity. The rule that statutes are not retroactive unless the legislature expressly provides for retroactivity is inapplicable to statutes of limitation since such statutes are procedural and their application to claims and actions brought after their effective dates do not constitute retroactive applications.

         ¶1 The petitioner (claimant) has been diagnosed with asbestos-related lung disease. In his petition he attributes his disease to exposure to asbestos at a lumber mill in Libby, Montana, where he worked from 1960 to May 1998. From 1960 to November 1993, the mill was owned by Champion International Company (Champion), which was self-insured. In November 1993, the mill was sold to Stimson Lumber Company (Stimson), which operated it thereafter. Sometime after the sale, Champion merged with or was acquired by International Paper Company (International Paper).

         ¶2 The claimant names both International Paper and Stimson's insurer - Liberty Northwest Insurance Corporation (Liberty) - as respondents to his occupational disease claim. International Paper moves to dismiss and in the alternative for summary judgment.

         Decision

         I. Moti ...


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