FILED: July 15, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

MARLENE PURCELL, Personal
Representative of the Estate of
John Purcell, Deceased,

Respondent - Cross-Appellant,

v.

ASBESTOS CORPORATION, LTD., a
Canadian corporation; ARMSTRONG
WORLD INDUSTRIES, INC., a
Pennsylvania corporation, in its
individual capacity and as
successor-in-interest to Armstrong
Cork Company, Inc., a Delaware
corporation; A. P. GREEN
REFRACTORIES CO., individually
and as successor-in-interest to E. J.
Bartells, a Delaware corporation;
FIBREBOARD CORPORATION,
a Delaware corporation; GAF
CORPORATION, a Delaware
corporation; UNITED STATES
GYPSUM COMPANY, a Delaware
corporation, individually and as
successor-in-interest to A. P. Green
and E. J. Bartells; NATIONAL
GYPSUM COMPANY, a California
corporation; TURNER & NEWALL PLC,
a British corporation and its subsidiary
J. W. Roberts Limited; UNION CARBIDE
CHEMICALS AND PLASTICS
COMPANY, INC., a New York corporation,
successor-in-interest to Union Carbide
corporation; FLEXITALLIC, INC., a
Delaware corporation; UNITED PIPE &
SUPPLY CO., INC., an Oregon corporation;
PARAMOUNT SUPPLY CO., an Oregon
corporation; MAR-DUSTRIAL SALES,
INC., an Oregon corporation; QUIMBY
WELDING SUPPLIES, INC., an Oregon
corporation, ACANDS, INC.; and
PITTSBURG-CORNING CORPORATION,

Defendants,

and

OWENS-CORNING FIBERGLAS
CORPORATION, a Delaware
Corporation and E. J. BARTELLS
COMPANY, a Washington corporation,

Appellants - Cross-Respondents,

and

DEPARTMENT OF JUSTICE,
State of Oregon,

Cross-Respondent.

(9311-07674; CA A85339)

Appeal from Circuit Court, Multnomah County.

Anna J. Brown, Judge.

Appellant Owens-Corning Fiberglas Corporation's petition for reconsideration filed May 6, 1998. Opinion filed April 22, 1998. 153 Or App 415, ___ P2d ___ (1998).

Thomas G. Hungar and Gibson, Dunn & Crutcher, and Jay W. Beattie and

Lindsay, Hart, Neil & Weigler, for petition.

Before Deits, Chief Judge, and Riggs and Landau, Judges.

Reconsideration allowed; opinion modified and adhered to as modified.

DEITS, C. J.

DEITS, C. J.

Defendant Owens-Corning Fiberglas Corporation (Owens) petitions for reconsideration of our opinion. Purcell v. Asbestos Corp., Ltd., 153 Or App 415, ___ P2d ___ (1998). Owens contends that our "decision overlooks and/or misperceives certain facts" and that our conclusions and holding consequently were affected. Assuming arguendo that all of the factual assertions in Owens' petition are correct, neither our analysis nor our holding would be altered.

We nevertheless allow reconsideration to correct certain statements in our opinion that could have unintended consequences on matters beyond this case. In 1958, Owens purchased the division that produced the asbestos-containing material Kaylo from the Owens-Illinois Corporation. For purposes of the analysis in our opinion and for purposes of this case, that is the critical fact about the relationship between Owens and Owens-Illinois. Although our opinion correctly states that fact, it also contains statements to the effect that Owens-Illinois was a subsidiary of Owens and that, in 1958, Owens acquired Owens-Illinois, as distinct from purchasing only the latter's Kaylo Division.

Owens argues that it is incorrect that there was ever a parent-subsidiary relationship between the two corporations or that Owens acquired Owens-Illinois in its entirety. Noting that the contrary indications in our opinion could have repercussions in other lawsuits, Owens asks us to withdraw our statements that there now is or ever was a relationship by which Owens controlled or owned Owens-Illinois.

Nothing in this case turns on the presence or absence of a structural relationship between the two entities, and our opinion was not intended to and does not decide anything about that matter. Any statements in our opinion that suggest otherwise were inadvertent.

Reconsideration allowed; opinion modified and adhered to as modified.


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