Braswell v. AC & S, Inc.Braswell v. AC & S, Inc.
OPINION
delivered the opinion of the court,
The Trial Court allowed plaintiff to add seller as party to products liability action more than one year after injury and denied seller summary judgment on defense of the statute of limitations. We affirm.
In this products liability action the plaintiff sued the manufacturer, alleging that he was injured by exposure to asbestos. Subsequent to bringing the action, the manufacturer was judicially declared insolvеnt, after one year had expired for bringing the action. Pursuant to
These three cases were consolidated for рurposes of appeal, to determine whether the plaintiffs may maintain a cause of action in strict tort against a seller who was not sued within the original statute of limitations time period. It is not disputed that the original complaints against the manufacturers were filed within one year of each plaintiffs’ discovery of a medical condition allegedly caused by exposure to аsbestos.
Defendant Owens-Corning Fiberglass, the manufacturer, filed a voluntary petition in bankruptcy on October 5, 2000, which plaintiffs relied on in adding the seller as a party defendant. In denying defendant’s Motion for summary Judgment, the Trial Court ruled that the limitation period against the seller did not begin to run until the manufacturer was adjudicated bankrupt.
The applicable statutes are as follows:
T.C.A. 29-28-103. Limitation of actions.—Exception.—(a) Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, ...
T.C.A. 28-3-104. Personal tort actions.—(a) The fоllowing actions shall be commenced within one (1) year after the cause of action accrued:
(1) Actions for ... injuries to the person ...
[[Image here]]
(b) For the purpose of this section, in products liability cases:
(1) The cause of aсtion for injury to the person shall accrue on the date of the personal injury, not the date of the negligence or the sale of a product;
(2) No person shall be deprived of the right to maintain a cause of action until one (1) year from the date of the injury; and
(3) Under no circumstances shall the cause of action be barred before the person sustains an injury.
T.C.A. 29-28-106. Seller’s liability.
(b) No “product liability action,” as defined in § 29-28-102(6), when based on the doctrine of strict liability in tort, shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user or consumer unless the seller is also the manufacturer of the product or the manufacturer of the part thereof clаimed to be defective, or unless the manufacturer of the product or part in question shall not be subject to service of process in the state of Tennessee or service cannot be secured by the long-arm statutes of Tennessee or unless such manufacturer has been judicially declared insolvent.
The issue before us involves a question of law which is reviewed as de novo with no presumрtion of correctness of the lower court’s conclusions of law. Union Carbide Corp. v. Huddleston,
The legislative history of the Tennessee Products Liability Act of 1978,
The Court said:
[What this amendment is saying is] you don’t get to sue the seller if the manufacturer’s got money, but if the manufacturer doesn’t have money then you sue the seller .... basically what we’re doing here is kinda like saying you can sue so and so if the other fellow doesn’t have the money.... I don’t think that this particular amendment makes much sense or much logic because really all you’re saying is, folks if you can’t get the mоney off one, we’re gonna let you have a shot at the other {* *7} one....
... A proponent of the amendment, Senator White, indicated that it was designed to protect consumers ...:
All you’re saying is if thе child in Tennessee or the citizen of Tennessee is injured by a product manufactured by somebody, no matter where they are, well ... no matter where the manufacturer is, if he’s insolvent, and manufacturers go out of business every day, people go in business and they don’t make it, if Sears & Roebuck buys a product from a manufacturer that is bankrupt, why should you tell the person injured in Tennessee that you cаn’t recover, you can’t recover because that manufacturer is no longer solvent. Why shouldn’t Sears & Roebuck in a case like that be liable, strictly liable for putting that defective produсt on the market[?]. I think it’s a very reasonable amendment.
The opinion goes on to state that the next day a similar, but not identical in form, amendment passed by the Tennessee Senate and then beсame law.
At the time the General Assembly enacted
Except in topsy-turvy land, you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantiаlly similar reasons, it has always heretofore been accepted, as a sort of legal “axiom,” that a statute of limitations does not begin to run against a cause of action before that cause of action exists,i.e., before a judicial remedy is available to the plaintiff.
It is a cardinal rule of statutory construction that the intent of the legislature must prevail. Tidwell v. Collins,
On the issue before us, MeCroskey is instructive and the analogous case of Gibson v. Swanson Plating and Machine of Kentucky, Inc.,
The precise issue before us is whether the one-year statute of limitations on the plaintiffs claim against the Second Injury Fund began to run on the date of the second injury, or on the date of adjudication of the permanent partial disability award from the plaintiffs first injury. We conclude that the better-reasoned approach is to hold that the statute begins to run when recovery of an award for a prior injury actually materializes, and not, as the Fund advocates, when an employee has knowledge of a potential claim.
[[Image here]]
Indeed, logic would seem to dictate that an employee cannot be held to have knowledge of a claim against the Second Injury Fund until that claim actuahy arises-which in this case was not until the first permanent disability was adjudicated. Moreover, this logiсal proposition is consistent with our prior rulings on the accrual of ,a right of action. Tennessee law recognizes that, ordinarily, a statute of limitations begins to run when a plaintiff has cause of action and can bring suit. (Citations omitted). Likewise, federal courts construing Tennessee law have held that a cause of action does not accrue until a suit can be maintained. (Citations omitted). Additionally, there must be someone capable of suing before the statute of limitations can run.
The Court went on to hold that the Judgment of the Kentucky court awarding permanent disability triggered the stаtute of limitations as to the Second Injury Fund’s liability.
In this case, the statute prohibits the plaintiff from bringing the action against the seller until one of the conditions set forth in the statute has been satisfied. From the foregoing analyses, we conclude that the General Assembly intended the limitation period against the seller would begin to run at the time the manufacturer was adjudicated bankrupt.
For the foregoing reasons, we affirm the Trial Court’s denial of defendant’s Motion for Summary Judgment and remand these cases for proceedings consistent with this opinion.