NM Law Applies To Asbestos Case, Ariz. High Court Rules

August 27, 2013 – Media Coverage

Law360, New York (August 27, 2013, 4:06 PM EDT) -- Arizona's high court has ruled that New Mexico law applies to a wrongful death lawsuit brought on behalf of an Arizona man purportedly exposed to asbestos, even after overturning a lower court's holding that the alleged injury occurred in New Mexico.

The case centered on Dudley Pounders, a welder allegedly exposed to asbestos while working in New Mexico in the 1960s, 1970s and 1980s. Pounders and his wife, the plaintiff in the case, moved from New Mexico to Arizona in the late 1980s. He was diagnosed with mesothelioma in May 2008, launched a lawsuit against Enserch E&C Inc. and two other companies allegedly liable for the asbestos exposure in June 2008, and died in August 2008.

The Arizona Supreme Court held on Aug. 21 that because New Mexico has greater interest in the case than Arizona, New Mexico's substantive law applies. The decision affirms an appeals court's ruling on the choice of law in the case.

The choice of law is significant because a lower court determined that New Mexico's statute of repose barred the wrongful death claim, since the law prohibits personal injury claims brought more than 10 years after the completion of the construction at issue. By contrast, Arizona's statute of limitations bars personal injury claims brought more than two years after the allegation could have been discovered.

The location of the conduct that led to Pounders' injury — New Mexico — is the most relevant factor in determining the choice of law, according to the high court.

Unlike the appeals court, the Supreme Court found that the place of injury was Arizona, since the manifestation of Pounders' mesothelioma occurred in the state. The appeals court had held that New Mexico was the place of injury because the asbestos exposure first affected Pounders there.

However, the place of injury is of little relevance to the choice of law determination, since “the injury's occurrence in Arizona is fortuitous; the Pounders could have moved anywhere after leaving New Mexico,” the Supreme Court said.

The other factors in the analysis — the residence of the parties and the place where the parties' relationship is centered — are also of little relevance to the case, according to the court.

The three defendants are based out of states other than Arizona or New Mexico, and while the Pounders lived in Arizona, they could have moved anywhere after the asbestos exposure, the court said. The parties “did not have an ongoing relationship centered in a particular state,” it said.

Policy considerations also favor New Mexico over Arizona, according to the Supreme Court.

The Supreme Court did not review the appeals court's ruling that the New Mexico statute of repose bars the wrongful death claim. It only examined the choice-of-law analysis, saying it raises “issues of statewide importance” for “wrongful death actions involving long-latency diseases.”

Attorneys for the parties could not be immediately reached for comment on the ruling.

Besides Enserch, the successor to the architect and construction manager for three units at the plant where Pounders worked, the defendants are BW/IP Inc., the parent company to the manufacturer of pumps used at the plant, and Riley Power Inc., the manufacturer of industrial boilers used at the plant.

The case is Pounders v. Enserch E&C Inc. et al., case number cv-12-0173-pr, in the Arizona Supreme Court.