OPINION
In this аppeal from summary judgment in a legal malpractice case, Joseph and Gail Haussecker allege a fact question as to whether the Hausseckers’ underlying silicosis claims were barred by statute of limitations before the Hausseckers sought advice from attorney Jerry Childs. Finding a fact question exists as to whether the discovery exception to limitations applied, we reverse and remand.
FACTS
Joseph Haussecker was hired by AMF Tuboscоpe, Inc. in 1961. He worked there as a sandblaster until 1963 when he was transferred to Tuboseope’s pipe pickling 1 operation after he complained of spitting up blood. He worked in the pickling operations until 1968 when he was advised by his physician not to return to that job.
Haussecker first noticed respiratory problems in September 1967. He sought medical treatment for his condition in November 1967, May 1968, and June 1968. In May 1968, Haussecker was coughing up blood and pus. At his employer’s request, he saw one doctor who took x-rays, told him there was nothing wrong, and sent him back to work. He next consulted a lung specialist who performed a bronchoscopy on Haussecker’s lung in June 1968 and diagnosed Haussecker as having a granuloma of the right lung. The doctor did not suggest any cause for his condition, but prescribed bed rest. His personal doctor, on the other hand, told him he had “Hodgson or lymphoma.” In a deposition taken as part of the worker’s compensa *932 tion suit in 1969 (where, we note, this testimony was an admission against interest), Mr. Haussecker testified:
Q: Now none of the doctors that you have been to, either Dr. Morales or Dr. McCullough, have told you what has caused this, have they?
A: No, they never did.
Q: Have they said that it was a work related disease or occupational hazard, have they said anything like that?
A: No, he didn’t say anything like that.
Q: Did you ask them about that?
A: Yeah.
Q: Did they say that they didn’t think it was caused by that?
A: Well, he didn’t — Dr. Morales said that it didn’t come frоm the job.
Q: What about Dr. McCullough, did he say the same thing?
A: He didn’t really say, all he told me was that I had something in my chest here, he said it didn’t come from sand blasting. So that’s all I know from him.
Haussecker was bed-ridden from June 1968 to January 1969. In August 1968, he sent notice to his employer that his illness was a work-related disease and filed a worker’s compensation claim. The claim described his health problems as:
Diseased Right Lung. Worked as Sandblaster continuously for 2 years. Occasionally worked as sandblaster for past 4½ yeаrs. Also worked around oven 800° burning pipe out, also open 1,000 gal. acid vat, regularly exposed to dust and smoke and various fumes.
He believed he had silicosis because during the six and a half years he worked for Tubo-scope, eight co-workers had lung trouble, and one died of lung disease.
Haussecker’s compensation claim was denied by the Industrial Accident Board, which found that “the evidence submitted fails to establish that the claimant suffered a com-pensable injury and/or occupational disease in the course of employment_” On November 6,1968, Haussecker filed suit against the worker’s compensation carrier, Liberty Mutual Insurance Company. In his suit, Haussecker alleged that the sandblasting and pipe pickling work he performed for AMF Tuboseope had “caused severe and permanent damage to [his] lungs and chest and the glands and soft tissues of the chest, neck, and face, and ha[d] caused [him] to have the disease of silicosis_” Hausseeker was never able to obtain a diagnosis of silicosis to sustain his compensation claim. Two physicians consulted by Haussecker’s attorney, then Jerry Childs, stated that they would not be able to assist in the case if it came to litigation, meaning they could not establish causation between his lung problems and exposure at his workplace. After three successive attorneys withdrew from his сase, including Childs, Haussecker’s worker’s compensation case was dismissed for want of prosecution in 1972.
In response to questions about why he withdrew from Haussecker’s compensation case, Childs testified:
Q: In fact, were you aware of any medical evidence at the time you were having the worker’s compensation case that said that Mr. Haussecker had any kind of disease that was any way related to sandblasting or his employment at AFM [sic] Tuboseope?
A: No, sir.
Q: And for that reason, you could not in good faith continue to pursue a worker’s compensation claim on his behalf, could you?
A: That’s right.
Q: Part of our obligations as a lawyer is, if we get to a situation where there’s simply — we don’t have sufficient evidence — there’s not evidence to support our client’s claim, our obligation is to step forward and tell our client. Look, at this point in time there is no evidence, there is no medical evidence that you have this disease, and therefore I cannot continue to pursue your claim for you.
A: That’s what we did.
After 1968, Haussecker did not return to his job at AMF Tuboseope, but instead accepted a light duty job with the City of *933 Midland Parks Department as zookeeper, which he held from 1969 until 1978. Haus-secker’s physical condition continued to deteriorate over the next twenty years. By July 1978, Haussecker’s health had become so bad, he was forced to stop working. At this time, he applied for and received social security disability.
In May 1988, while in the hospital for a hand infection, Haussecker was examined by Dr. McKenna, a lung specialist. Dr. McKen-na told Haussecker that, based on his symptoms and Dr. McKenna’s experience with other AMF Tuboscope employees, he believed Haussecker had silicosis. Dr. McKen-na performed a lung biopsy in February 1990 and sent it to a lab for testing. In April 1990, Dr. McKenna diagnosed Haussеcker with silicosis.
Having finally secured a diagnosis of silicosis, the Hausseckers contacted Childs, recalling that he had represented them in the unsuccessful compensation case in 1969. On April 26, 1990, the Hausseckers met with Childs to see what action they could pursue. After reviewing their file and researching the law, Childs advised the Hausseckers that “too much time had run for him to be able to do anything about a claim that he had made 20 years ago.” Discouraged, thе Hausseck-ers took no further action for two years.
In August 1992, the Hausseckers contacted Mike Martin, a Houston attorney who had represented a number of clients in silicosis cases. 2 Martin met with the Hausseckers on August 12, 1992. Although he agreed to represent them in a products liability suit, Martin informed the Hausseckers they had a limitations problem, as more than two years had elapsed since Mr. Haussecker’s silicosis diagnosis in April 1990. Indeed, the Haus-seeker’s product liability suit was dismissed on summary judgment in March 1994 based on the two-year statute of limitations defense.
The Hausseckers then filed this legal malpractice action against Childs and his firm asserting claims for breach of fiduciary duty, negligence, gross negligence, and DTPA violations. Childs moved for summary judgment contending that Haussecker’s underlying silicosis claims were barred by the statute of limitations before the Hausseckers contacted Childs in 1990. The trial court granted the motion and rendered a take-nothing judgment. In a single point of error, the Hausseckers seek reversal.
STANDARD OF REVIEW
In reviewing the trial court’s grant of summary judgment, we are governed by the following well-established principles: (1) The movant for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) evidence favorable to the non-movant will be taken as true; and (3) reasonable inferences must be indulged in favor of the non-movant.
Nixon v. Mr. Property Management Co., Inc.,
Where, as here, defendants are movants, our review is limited to whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiffs cause of action.
Vida,
When defendants as movants rely on the affirmative defense of the running of limitations, they must conclusively establish when the cause or causes of action accrued and must negate every applicable exception to their limitations defense. Here, they must negate the discovery exception by proving as a matter of law that there is no genuine issue of faсt about when Mr. Haussecker discover
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ed or, in the exercise of reasonable diligence, should have discovered the nature of his injury.
Bums v. Thomas,
Legal Malpractice
An attorney malpractice action in Texas is based in negligence.
Cosgrove v. Grimes,
The Discovery Rule in Latent Onset Disease Cases
Section 16.003 of the Texas Civil Practice and Remedies Code provides that “a person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues.” Tex.Civ.PRAC.
&
Rem.Code Ann. § 16.003(a)(Vernon 1986 and Supp.1996). Negligence claims normally accrue when the duty of ordinary care is breached, and strict liability claims generally accrue on the date of the injury.
Bell v. Showa Denko K.K.,
Application of the discovery rule standard is complicated in cases of latent onset diseases, such as silicosis, because the disease or symptoms may not begin to manifest until months or even years after exposure. Almost fifty years ago, the United States Su
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preme Court considered this question in
Urie v. Thompson,
Thus, it has long been held that a party cannot be charged with knowledge of a latent-onset occupational disease at least until the disease begins to manifest itself. A second complicating factor must be addressed here, as well. Some occupational diseases, including silicosis, are progressive. That is, the diseasе does not cause permanent disability at first, but progressively deteriorates the patient’s health. Onset of the first symptoms may clearly indicate the start of permanent occupational disease if viewed in hindsight, but does not necessarily equate the same knowledge when viewed from the perspective of when symptoms began to appear. The progressive nature of occupational diseases thus suggests another important question: How long after symptoms first manifest can a party remain “blamelessly ignorant” of his or her affliction with a permanently disabling occupational disease as opposed to affliction with a mere temporary condition? In this case, the question is whether “blameless ignorance” may continue, despite the afflicted worker’s own subjective belief that he has contracted an occupational disease, where his physicians will not diagnose that condition for many years despite repeated inquiries by the patient.
Texas courts apply the discovery rule in terms of when the plaintiff discovered or should have discovered the
nature
of the injury.
Bums v. Thomas,
Our discovery rule analysis in an occupational disease case is therefore two-fold. First, when did the disease begin to manifest itself through recognizable symptoms? Second, when did those symptoms become such that a reasonable person, in the exercise of reasonable diligence, would have understood what disease is causing the symptoms, and that it is permanent?
See Srite v. Owens-Illinois, Inc.,
Undoubtedly, a firm diagnosis from a physician will start the limitations period running. We do not necessarily agree with Haussecker’s premise, however, that nothing short of a positive diagnosis by a physician will have that effect. This formulation of the discovery rule ignores that requirement that a plaintiff show due diligence in seeking a diagnosis once symptoms have manifested. On the other hand, we do not find that mere onset of symptoms will necessarily end a party’s “blameless ignorance” of a permanent occupational condition. Whether any given plaintiff acted reasonably and promptly in seeking a diagnosis of any health problem which is later confirmed medically as a permanent occupational disease is a function of the particular facts and circumstances of each case. The issue may prove to be a factual one, often involving credibility of the plaintiff’s explanation for any delay best left to the jury.
The Discovery Rule Applied in this Case
The Hausseckers allege that a fact question exists on whether their siliсosis claim was time-barred in 1990, and the trial court therefore erred in granting summary judgment on the basis of limitations. We agree. Although the evidence before the court showed that Haussecker had experienced chronic lung ailments since 1967, that he filed a claim for workman’s compensation alleging a work-related illness, and that he had retained counsel and filed suit specifically alleging the disease of silicosis, it also shows that he was never able to obtain a medical diagnosis of that disease in support of his compensation claim. Indeed, several doctors affirmatively told Haussecker that he had some condition other than silicosis, and that his problems were not work-related. It appears (at least for summary judgment purposes) that Haussecker diligently sought to ascertain the nature of his disease and link it to his work at AMF Tuboscope, but was not able to do so until years after his symptoms began.
That Haussecker suspected he had silicosis, and even that he filed a worker’s compensation claim based upon that belief, is therefore not sufficient to conclusively defeat the discovery rule here. No matter how
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accurate Ms suspicion turned out to be in hindsight, he could not prevail on Ms claim ■without medical testimony confirming the nature and cause of his disease. The record here is clear that Haussecker, despite consultations, physical examinations, x-rays, and bronchoscopic tests, could not obtain a diagnosis substantiating Ms suspicions. TMs failure ultimately led to the dismissal of his case without recovery. We believe that Haus-secker is entitled to have a fact finder determine when he had sufficient knowledge, or through the exercise of reasonable care and diligence should have had knowledge, that he had silicosis. A person cannot know with certainty that he or she has silicosis without a medical diagnosis; conversely, if that person suspects the disease, he or she may not reasonably delay seeking a diagnosis.
See Casarez,
CONCLUSION
The Hausseckers’ sole point of error is sustained, the judgment of the trial court is reversed, and the case is remanded for further proceedings in accordance with tMs opimon.
Notes
. Pipe pickling involves extreme heating of used pipe, followed by dunking the hot pipe in an acid vat which loosened encrusted material so the pipe could then be cleaned by blasting.
. Martin had advertised locally as specializing in silicosis claims, which led to the Hausseckers renewed pursuit of this action.
. Childs’ motion urges only this single ground for summary judgment. Thus, we do not address any other issues usually present in a legal malpractice case, such as the existence of the attorney-client relationship, the standard of care, or the reasonableness of the attorney’s advice. Our opinion here is solely cоncerned with the correct formulation of the discovery exception to the two-year statute of limitations in latent onset disease cases.
. We find further helpful guidance by example in the following occupational disease summary judgment cases from other jurisdictions having discovery rules similar to that used in Texas:
White v. Owens-Coming Fiberglas Corp., et. tú.,