IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2005 Term
No. 31751

JAMES TOLLEY and NANCY TOLLEY,
his wife, Plaintiffs Below, Appellants,

V.

CARBOLINE COMPANY, a Delaware Corporation,
E.I. DUPONT DE NEMOURS AND COMPANY,
a Delaware corporation, and FINA OIL AND CHEMICAL
COMPANY, a Delaware Corporation, Defendants Below, Appellees.

Submitted: February 8, 2005
Filed: March 18, 2005

On March 17, 1997, the Tolleys filed this action against the Appellees as well as ACF Industries, Inc. (hereinafter referred to as “ACF”). The Tolleys assert that the Appellees and ACF were responsible for Mr. Tolley's breathing ailments, some of which included aggravation of preexisting asthma and hypersensitivity pneumonitis. The Tolleys contended that Mr. Tolley's breathing ailments were caused by his exposure to chemical substances known as isocyanates and phthalic anhydrides. The Tolleys further alleged that the chemicals isocyanates and phthalic anhydrides derived from paints used by ACF. Those paints were manufactured by the Appellees.

The claim against ACF was filed as a deliberate intent cause of action pursuant to W. Va. Code § 23-4-2(c)(2)(ii) (1983). The claim filed against the Appellees was premised upon the theories of negligence, failure to warn, breach of warranty, and strict liability. After a period of discovery, both the Appellees and ACF moved for summary judgment. The Appellees contended that summary judgment was appropriate because the evidence proved only that Mr. Tolley had a mere possibility of exposure to the chemicals isocyanates and phthalic anhydrides. Similarly, ACF argued that summary judgment was appropriate as there was no actual evidence that Mr. Tolley was exposed to isocyanates and phthalic anhydrides. The circuit court granted ACF's motion for summary judgment. However, the circuit court denied the summary judgment motion filed by the Appellees.

The Tolleys appealed the dismissal of their cause of action against ACF. This Court heard the appeal and affirmed the summary judgment ruling in Tolley v. ACF Industries, Inc., 212 W. Va. 548, 575 S.E.2d 158 (2002) (per curiam) (hereinafter referred to as “Tolley I”). Subsequent to this Court's decision in Tolley I, the Appellees filed a renewed motion for summary judgment before the circuit court. The Tolleys responded to the renewed summary judgment motion by filing supplemental affidavits from experts. The trial court reconsidered the motion and concluded that rulings made in Tolley I were dispositive of the claims against the Appellees. The circuit court therefore granted the Appellees' renewed motion for summary judgment. From this second ruling, the Tolleys now appeal.

Click here to review the full text of these proceedings: Tolley v. Carboline Co.
http://www.state.wv.us/wvsca/docs/Spring05/31751.htm