Opinion
Aрpellants' decedent, Gary Smith, expired in April 1994, shortly after he was diagnosed with a terminal asbestos-related disease. This action was brought against respondent Ameron International Corporation (Ameron) by his estate, by and through the decedent’s surviving spouse and executor Ellen Ashdown (Ashdown) and his children Kristy Smith and Ian Smith, alleging wrongful death and survival rights of action for negligence, strict liability and loss of consortium caused by his exposure to asbestos during his employment as a pipe inspector for respondent’s predecessor company. The trial court granted summary judgment in favor of Ameron, finding that appellants’ action was barred by the Workers’ Compensation Act, none of the exceptions to the exclusivity of the workers’ compensation remedy applied to the facts of this case, and Ameron was entitled to judgment as a matter of law. We affirm.
Factual and Procedural Background
Gary Smith was employed as a pipe inspector by respondent Ameron’s predecessors in interest, Amercoat, Inc. (Amercoat) and American Pipe and Construction Co. (American Pipe) in Brea, California, from 1964 through 1966.
1
Appellant’s evidence indicates that during the period of his emрloyment with Amercoat and/or American Pipe as an inspector and tester of pipe, Smith was exposed to asbestos used in respondent’s manufacture of asbestos-containing pipes and other related products. Smith became disabled on
January 18, 1994. On February 21, 1994, he was diagnosed as having mesothelioma, an asbestos-related disease. Smith
Appellants filed their initial complaint on May 31, 1994. Although this complaint identified one of Ameron’s predecessor companies, American Pipe, as a location where the decedent “used, handled or was otherwise exposed to asbestos and asbestos-containing products” while employed as a “Pipe Inspector” between 1964 and 1966, the complaint did not name American Pipe, Amercoat or Ameron as defendants. On April 9, 1997, appellants filed a motion for leave to file a first amended complaint naming Ameron as a defendant, alleging they had failed to name Ameron as a defendant initially because they had only “recently learned of facts indicating liability of Ameron ... for the exposure of [decedent Smith] to asbestos materials resulting in his illness and death.” Aрpellants were granted leave to amend.
In its answer to the first amended complaint, respondent asserted as affirmative defenses the exclusivity of the remedy of the Workers’ Compensation Act, and appellants’ failure to commence their action against respondent within the applicable one-year limitations period. Respondent subsequently moved for summary judgment on these grounds, and noticed a hearing to be held on Friday, July 3, 1998.
On June 15, 1998, appellants’ counsel notified respondent’s attorney that the motion for summary judgment could not be heard on July 3, 1998, because it was a court holiday in observance of Independence Day. On June 17, 1998, appellants filed an ex parte application requesting an order shortening time setting the date for hearing the summary judgment motion on Thursday, July 2, 1998, or alternatively to allow the motion to be heard closer to the
Exclusiveness of Workers’ Compensation Remedy
The principal issue on this appeal is whether the trial court erred in granting summary judgment upon respondent’s motion, based on its finding that under the undisputed facts of this case, appellants’ claim does not come within any exception to the exclusivity of the workers’ compensation remedy. Appellants argue that their cause of action accrued, not as of the date of the decedent’s death or his asbestosis diagnosis, but at the time of his original exposure to asbestos during his employment with respondent’s predecessor corporation between 1964 and 1966. On this basis, they urge that the dual capacity exception to workers’ compensation exclusivity in effect prior to the 1982 amendment of Labor Code section 3602 2 was applicable to their claim. In the alternative, they argue that even if the decedent’s case accrued after thе effective date of the amended version of the pertinent statute, there are still triable issues of fact as to whether the fraudulent concealment exception to workers’ compensation exclusivity applies to this action. We conclude on the basis of the undisputed evidence that the trial court’s grant of summary judgment was correct, and therefore affirm.
Standard of Review
Any party may move for summary judgment in any action or proceeding by contending that the action has no merit, or there is no defense to the action. (Code Civ. Proc., § 437c, subd. (a).) Code of Civil Procеdure section 437c, subdivision (c),
requires
a trial court to grant summary judgment if all the papers and affidavits submitted, together with “all inferences reasonably deducible from the evidence” and uncontradicted by other inferences or evidence, show that “there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Ibid.; 6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 217, p. 629.) Where the defendant is the moving party, he or she may meet the burden of showing that a cause of action has no merit by proving either that (1) one or more elements of thе cause of action cannot be established, or (2) there is a complete defense to that cause of action. Once that burden is met, the burden
shifts
to the plaintiff to show the existence of a triable issue of one or more material facts with respect to that cause of action or defense. (Code Civ. Proc., § 437c, subd. (o)(2);
Sangster
v.
Paetkau
(1998)
“On appeal, we review the trial court’s decision to grant or deny the summary judgment motion de novo, on the basis of an examination of the evidence before the trial court and our independent determination of its effect аs a matter of law.”
(Sangster v. Paetkau, supra,
Dual Capacity Exception Not applicable
Appellants first argue that the trial court erred in concluding that their complaint was barred by a 1982 amendment to section 3602 limiting the so-called dual capacity exception upon which they rely to circumvent the exclusivity of the workers’ compensation remedy. They contend that because the decedent was allegedly exposed to asbestos during his employment with respondent’s predecessor between 1964 and 1966, the 1982 amendment is inapplicable to their case. Appellants are wrong.
Where the “conditions of compensation concur,” the California workers’ compensation law provides the
exclusive
remedy in this state for the recovery of compensation, from either the employer or any other employee of the employer acting within the scope of employment, for the injury or death of an employee “arising out of and in the course of the employment.” (§§ 3600, 3601, 3602;
Privette
v.
Superior Court
(1993)
Under the common law dual capacity doctrine, when an employee is injured in the course of a relationship with his or her employer that is conceptually distinct from that of employer and employee, or while the employer is acting in a legal capacity toward the employee distinct from that of employer, the employee may bring a civil action and recover damages at law for breach of the employer’s duties arising from that distinct relationship or legal capacity, notwithstanding the general exclusivity of the workers’ compensation remedy.
(Duprey v. Shane, supra,
39 Cal.2d at pp. 785, 793; see also
Bell v. Industrial Vangas, Inc.
(1981)
However, in 1982, the Legislature amended section 3602 to limit the former dual capacity exception to workers’ compensation exclusivity. Section 3602, as amended in 1982, now provides that an employee, or his or her dependents in the event of the employee’s death, may bring an action at law for damages against the employer, despite the existence of the workers’ compensation remedy, “[w]here the employee’s injury or death is proximately caused by a defective product manufactured by the employer and sold, leased, or otherwise transferred for valuable consideration to an independent third person, and that product is thereafter provided for the employee’s use by a third person.” (§ 3602, subd. (b)(3), added by Stats. 1982, ch. 922, § 6, p. 3367, italics added.)
Thus, since 1982, the dual capacity exception to the general exclusivity of the workers’ compensation remedy has been limited to the narrow factual circumstances presented where the employee’s injury was caused by the employer’s product, which itself was provided to the employee not by the employer, but by an independent third person who obtained the product from the employer for valuable consideration. Significantly, appellants do not contend that their case comes within this narrower scope of the dual capacity exception as it currently exists since the Legislature’s 1982 amendment to section 3602. Instead, they argue that the decedent’s action accrued at the time of his alleged exposure to asbestos during his employment with respondent’s predecessors between 1964 and 1966, and appellants’ lawsuit is therefore unaffected by the 1982 change in the law.
In analyzing appellants’ claim, we begin by accepting the premise that the 1982 amendment to section 3602 applies prospectively only, and does “not apply to an action in which the events giving rise to it occurred prior to the effective date of the amendment.”
(Perry
v.
Heavenly Valley
(1985)
Appellants’ position is contrary to the controlling law on this subject. In Buttram itself, the issue before the Supreme Court was the correct accrual date for determining the prospective application оf Proposition 51, which in 1986 changed the existing common law by limiting a tortfeasor’s liability for noneconomic damages to the proportion of such damages equal to the tortfeasor’s own percentage of fault. For this purpose, the Supreme Court held that a cause of action for damages arising from latent and progressive asbestos-related mesothelioma accrued, not when the plaintiff was first exposed to asbestos or first suffered some undiscovered and unmanifested disease but, instead, at the time the disease for which damages were sought was diagnosed or otherwise discovered. (Buttram, supra, 16 Cal.4th at pp. 525, 531, 540.)
Perhаps more relevant to the facts of this case are the statutory standards for determining when a workers’ compensation claim accrues. Under section 5400, no claim to recover compensation may be maintained unless the employer is served with written notice of injury or death within 30 days after “the occurrence of the
injury
which is claimed to have caused the disability or death,” except where the employer already has actual or constructive knowledge of an employee’s injury. (Italics added.) Although in most cases the date of the “injury” is that on which the alleged incident or exposure
occurred, “[t]he date of injury
Thus, like the Supreme Court in
Buttram,
the act of which section 3602 itself is a part defines “the date of injury” when a claim based on a latent disease such as asbestosis “accrues” as that date on which the employee first learned of or
discovered
his or her disability or disease. This is actually no different from the test for determining accrual of causes of action for latent injuries in сivil cases. These do not accrue “until the plaintiff discovers or reasonably should have discovered that he [or she] has suffered a compensable injury.”
(Buttram, supra,
The undisputed record, as demonstrated by appellants’ deposition testimony and responses to interrogatories, shows that decedent Smith first visited a doctor because of his asbestos-related illnеss in July 1993; he first “became disabled” on January 18, 1994; and he was actually diagnosed as suffering from an asbestos-related disease on February 21, 1994. In short, the
undisputed
evidence is that it was not until 1993
at the very earliest
that appellant first suffered the disability for which appellants make their claim. Clearly, these triggering events all occurred well
after
the effective date of the 1982 amendment to section 3602. There is thus no triable issue of fact as to the question whether section 3602, subdivision (b)(3), as amended in 1982, applies to appellants’ action. Because appellants have never asserted that any of their causes of action do comе within that provision, the workers’ compensation law is the appellants’ sole and exclusive remedy against respondent for the decedent’s injuries and death.
6
The trial court did not err in
Fraudulent Concealment Exception Not Applicable
In the alternative, appellants argue that the trial court erred in granting summary judgment because there is a triable issue of fact as to whether their case comes within the fraudulent concealment exception to the general rule of workers’ compensation remedy exclusivity, as set out in section 3602, subdivision (b)(2). Specifically, they contend there is evidence the decedent’s asbestos-relatеd injury was aggravated by respondent’s fraudulent concealment of the existence of that injury and its connection with the decedent’s previous employment at Ameran’s predecessor companies. On this basis, appellants urge the trial court should have permitted trial to go forward on this theory of liability. Appellants’ contention is meritless.
Under section 3602, subdivision (b)(2), an employee, or his or her dependents in the event of his or her death, may bring an action at law for damages against the employer as if the workers’ compensation remedy did not apply, “[wjhere the employee’s injury is aggravated by the employer’s fraudulent concealment of the existence of the injury and its connection with the employment, in which case the employer’s liability shall be limited to those damages proximately caused by the aggravation. The burden of proof respecting apportionment of damages between the injury and any subsequent aggravation thereof is upon the employer.” (Italics added.) This provision, enacted as part of the 1982 amendment to section 3602, codifies the common law fraudulent concealment exception to the exclusivity of the workers’ compensation remedy, as enunciated by the Supreme Court in Johns-Man-ville Products Corp. v. Superior Court, supra, 27 Cal.3d at pages 468-469.
An employer’s actual knowledge of the existence of an employee’s injury connected with the employment is a necessary prerequisite to establishing a claim against the employer for fraudulent concealment under section 3602, subdivision (b)(2). Clearly, an employer cannot be charged with concealing something of which it has no knowledge.
(Foster
v.
Xerox Corp.
(1985)
None of these essential elements of the fraudulent concealment exception can be found in this case. In support of the applicability of the exception, appellants cite evidence from respondent’s interrogatory responses that respondent first became positively aware that there was an association between asbestos exposure and disease in October 1975; as early as 1972, respondent had made available to its customers written warnings of the possible
In fact, the evidence in the record indicates the very opposite. Thus, as of the late 1970’s, decedent Smith was fully aware of hi's exposure to asbestos during his employment at respondent’s predecessor companies, and told his family about this. Appellant Ashdown specifically testified that she had been informed by the decedent “in the late ’70s” that he had previously worked with asbestos in one of Ameron’s predecessor companies manufacturing pipe between 1964 and 1966; during his employment “he could see asbestos in the air”; and “workers were given masks to wear, but they didn’t always wear them.” Ashdown also testified that after the decedent was diagnosed as having an asbestos-related disease in 1994, they again discussed his exposure to asbestos during his previous employment with respondent. Significantly, they never discussed any other possible source of exposure to asbestos aside from his employment with respondent’s predecessor.
Thus, appellants cannot reasonably claim respondent fraudulently concealed the existence of the decedent’s injury or its potential connection with his employment, much less that respondent hindered appellants in any way from obtaining treatment for the decedent, or bringing an action against respondent based upon his alleged exposure to asbestos during his employment. Indeed, there simply is no evidence respondent or its predecessor companies ever knew the decedent had an asbestos-related disease. On the basis of this record, the trial court correctly determined that appellants failed to offer any evidence creating a triable issue of fact as to whether respondent actually knew at any time of the existence of the decedent’s asbestos-related disease, fraudulently concealed the existence of that disease, prevented the decedent from receiving treatment, or by any conduct aggravated his disability. There was no error in granting summary judgment on this basis.
Timing of Hearing on Summary Judgment Motion *
Disposition-
The judgment is affirmed. Appellants shall pay respondent’s costs on appeal.
Corrigan, J., and Walker, J., concurred.
Notes
For purposes of clarity and simplicity in this opinion, where аppropriate Ameron and both its predecessors in interest, Amercoat and American Pipe, will be referred to collectively as respondent in the singular.
Unless otherwise indicated, all further statutory references are to the Labor Code.
The “conditions of compensation” are set out in section 3600. Among other things, these include the following pertinent circumstances: (a) at the time of the injury, the employee was “performing services growing out of and incidental to his or her employment and [was] acting within the course of his or her employment; (b) the injury was “proximately caused by the employment, either with or without negligence”; (c) the injury was not caused by intoxication, alcohol or the unlawful use of controlled substances on the part of the injured employee; (d) the injury or death was not “intentionally self-inflicted”; (e) the injury did not arise out of “an altercation in which the injured employee [was] the initial physical aggressor"; and (f) the injury was not caused by the injured employee’s commission of a crime for which he or she has been convicted. (§ 3600, subd. (a).)
“Analytically, one could posit a continuum of triggering events which, from a medical or legal standpoint, might be used to establish the date on which a cause of action for personal injuries arising from a latent disease has ‘accrued,’ beginning with initial exposure to the toxic substance and proceeding through the inception of undetected physical changes (i.e., ‘subclinical’ or ‘cellular’ changes), the first appearance of symptoms, medical diagnosis (which may come before or after the onset of symptomatology), and the occurrence of certain legally significant events (i.e., actual or constructive knowledge of the onset of disease). For purposes of resolving the issue in this case, however, it is important to note that such a cause of action may be viewed in the eyes of the law as ‘accruing’ for different purposes on different dates, depending on the purpose for which the accrual determination is being sought.”
(Buttram, supra,
Relying on the cited language from the Supreme Court’s opinion in Buttram, appellants argue that the date a cause of action “accrues” may vary, depending on the purpose for which the accrual date is used. Specifically distinguishing thе two purposes of determining (a) whether the 1982 amendment to section 3602 applies to this case, and (b) whether the statute of limitations on their action has run, appellants contend that, at least for the limited purposes of the statute of limitations, their cause of action did not accrue until the time of the decedent’s diagnosis or his death.
Even if appellants had so argued, the undisputed evidence establishes beyond question that appellants’ claims do not come within the statutory exception set out in section 3602, subdivision (b)(3), as amended in 1982. That provision requires that the employee’s injury or death have been proximately caused by a defective product manufactured by the employer, which product was sold, leased, or otherwise transferred for valuable consideration to an independent third party and thereafter provided for the employee’s use by a third person. Appellants’ own evidence shows that the decedent’s employment with respondent’s predecessor companies involved his inspection of pipes during the manufacturing process, before they were actually sold and delivered to consumers or any other third parties.
For much the same reason, even if appellants were able to establish that their causes of action accrued prior to the amendment of section 3602 in 1982, they still would not be able to establish that the facts of this case would have come within the dual capacity exception as it existed prior to 1982. The common law dual capacity doctrine was only applicable to situations where the injured employee was
using
a product manufactured by the employer for sale to the general public in a mаimer in which the general public could have been expected to use that product. It did not apply where the product in question was in an unfinished state or required further processing before becoming available for distribution to the public.
(Bell
v.
Industrial Vangas, Inc., supra,
30 Cal.3d at pp. 278-279;
Blew
v.
Homer
(1986)
course of his employer’s manufacturing of the asbestos-containing products, not while he was using them himself in the same manner in which a member of the general public would have used them. Because there is no evidence the decedent was injured by the same risk to which a consumer using these products would have been exposed, the common law dual capacity exception to the exclusivity of the workers’ compensation remedy simply does not apply to this case.
See footnote, ante, page 868