Kiser v. A.W. Chesterton Co., 736 S.E.2d 910

Orvin H. Kiser, Sr. worked at a DuPont plant in Virginia from 1957–1985 with asbestos exposure.
He was diagnosed with asbestosis and pleural thickening in 1988 and sued in 1990; action later dismissed in 2010.
In 2008, Kiser was diagnosed with mesothelioma and died in 2009; executrix filed a wrongful death action in 2010 against 21 defendants.
Defendants argued the action was time-barred under the indivisible cause of action rule and Code § 8.01-243/Aime; Executrix argued § 8.01-249(4) created a discovery accrual rule that triggered in 2008.
The Third Circuit certified a Virginia law question about accrual under § 8.01-249(4) and whether it abrogated the indivisible rule.
Virginia Supreme Court held that § 8.01-249(4) creates a discovery rule for accrual but does not abrogate the indivisible cause of action; accrual occurs at first physician communication of diagnosis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
When does asbestos-related action accrue under § 8.01-249(4)?	Kiser executrix contends § 8.01-249(4) governs accrual timing for latent mesothelioma.	Chesterton argues indivisible rule controls accrual; discovery rule changes accrual, not the right of action.	Accrual occurs when the diagnosis is first communicated.
Does § 8.01-249(4) abrogate the common-law indivisible rule for asbestos cases?	Executrix argues statute creates separate disease actions.	Defendants argue it only creates a discovery rule for accrual, not multiple actions.	Statute does not abrogate indivisible rule; creates discovery rule for accrual only.
Can two distinct asbestos-related diseases yield two separate causes of action?	Two diseases (asbestosis and mesothelioma) may give rise to separate rights and actions.	Single action for a single wrong; no separate disease rule.	Two separate causes of action may exist if diseases represent distinct harms.

Locke v. Johns-Manville Corp., 221 Va. 951 (1981) (accrual tied to time when injury first existed, not discovery)
Caudill v. Wise Rambler, Inc., 210 Va. 11 (1969) (accrual requires actual injury; right of action arises with harm)
Street v. Consumers Mining Corp., 185 Va. 561 (1946) (act and its consequences form one cause of action; limitations run from injury)
Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927) (one wrongful act yields one action unless distinct rights harmed)
Carter v. Hinkle, 189 Va. 1 (1949) (two actions may arise when separate rights invaded by one act)
Starnes v. Cayouette, 244 Va. 202 (1992) (later damages do not defer accrual if earlier harm exists)
McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455 (2012) (treats accrual and rights in complex medical contexts)
Andrews v. Commonwealth, 280 Va. 231 (2010) (statutory interpretation and accrual principles relevant to 8.01-249)
Jenkins v. Mehra, 281 Va. 37 (2011) (statutory context and interpretation of accrual provisions)
Shipman v. Kruck, 267 Va. 495 (2004) (policy concerns for discovery rules; legislature governs changes)
Sopha v. Owens-Corning Fiberglas Corp., 601 N.W.2d 627 (1999) (recognizes separate diseases may yield separate actions in some jurisdictions)