Nelson v. Flintkote Co.Nelson v. Flintkote Co.
THOMPSON, J.
Plaintiff Andrew Nelson, a victim of the progressive disease of asbestosis, appeals from an order of dismissal following the sustaining
In this case we determine that
(1) The allegations of the complaint which, on demurrer, are accepted as true establish that plaintiff was exposed to asbestos fibers and dust in his employment as a boiler inspector and operator from 1949 through 1956, and from 1963 to the present. In September 1976, a medical doctor informed plaintiff that he had suffered damage to his lungs and contracted the disease of asbestosis as a result of this exposure to asbestos. Notwithstanding the onset of this disease, plaintiff has continued working.
In 1979, the Legislature enacted
Section 2 of chapter 513 provides: “The provisions of this act shall apply to those causes of action which accrued prior to the change in the law made by this act and have not otherwise been extinguished by operation of law.”
Before the 1979 enactment of
On May 4, 1981, plaintiff filed his original complaint for damages for injuries arising from his work-related exposure to asbestos. Defendants herein demurred on the ground that the applicable statute of limitations was
DISCUSSION
Section 340.2 Properly Applies
(2) The trial court erred in dismissing the complaint. Plaintiff‘s complaint was timely filed because
Defendants’ arguments to the contrary are based upon the mistaken premise that plaintiff‘s causes of action were automatically “extinguished by operation of law” in September 1977 since he had received an informed diagnosis as of September 1976. They contend the Legislature did not intend “retroactive” application of
Defendants’ interpretation of the language of the enacting statute and the legislative intent have been rejected in Puckett v. Johns-Manville Corp. (1985) 169 Cal. App.3d 1010 [215 Cal. Rptr. 726], and Blakey v. Superior Court (1984) 153 Cal. App.3d 101 [200 Cal. Rptr. 52], the only two appellate
(3) As Puckett pointed out: “Both language in the enactment and the remarks of the author of the legislation support the conclusions that the Legislature intended the special statute to be remedial in purpose, subject not only to liberal construction but to retroactive application in a manner which would encompass the causes of action of as many victims of asbestosis as possible.” (169 Cal. App.3d at pp. 1015-1016.)
(4) In order for an asbestos claim to have been “`extinguished by operation of law,‘” a court must have adjudicated the matter. (Id., at p. 1016; Blakey v. Superior Court, supra, 153 Cal. App.3d at p. 106; see also City of Los Angeles v. Superior Court (1977) 73 Cal. App.3d 509, 512-514 [142 Cal. Rptr. 292]; Wedding v. People ex rel. Dept. of Transportation (1979) 88 Cal. App.3d 719 [152 Cal. Rptr. 181].) There is no automatic magical extinguishment of a cause of action by the mere passage of time. A statute of limitations is an affirmative defense which must be pleaded by a defendant and ruled on by a court. Where, as here, a court has not adjudicated the timeliness of the action with reference to
(5) The fact that the limitations period under the discovery rule of
Since there had been no extinguishment, there is no problem of an impermissible retroactive revival of a barred cause of action impairing defendants’ vested rights. Indeed, we note that
(6) Moreover, a statute of limitations is procedural; it affects the remedy only, not the substantive right or obligation. (3 Witkin, Cal. Procedure (3d ed. 1985) § 308, p. 337.) “Limitations periods represent a public policy about the privilege to litigate; they relate to matters of procedure, not to substantial rights.” (Talei v. Pan American World Airways (1982) 132 Cal. App.3d 904, 909 [183 Cal. Rptr. 532].)
Since a statute of limitations for a common law tort, such is at issue here, is a procedural rule, it is not subject to the general rule that statutes should not be retroactive. (See Republic Corp. v. Superior Court (1984) 160 Cal. App.3d 1253, 1257 [207 Cal. Rptr. 241]; 3 Witkin, Cal. Procedure, supra, § 308, p. 338; see also § 330, pp. 359-360; § 332, pp. 361-363.) “A statute which is procedural in nature may be given effect as to pending and future litigation even if the event underlying the cause of action occurred before the statute took effect.” (Pacific Coast Medical Enterprises v. Department of Benefit Payments (1983) 140 Cal. App.3d 197, 204 [189 Cal. Rptr. 558].) “`A lawsuit is governed by a change in procedural rules made during its pendency, and the suit is pending until its final determination on appeal.‘” (Republic Corp. v. Superior Court, supra, 160 Cal. App.3d at p. 1257; see also
(7) Defendants’ claim that by the mere expiration of time they had gained a vested right of immunity from liability which the Legislature could not properly thwart is unpersuasive.2
The United States Supreme Court has long held to the contrary. In Chase Securities Corp. v. Donaldson (1945) 325 U.S. 304 [89 L.Ed. 1628, 65 S.Ct. 1137], the court reaffirmed its long established holding in Campbell v. Holt (1885) 115 U.S. 620 [29 L.Ed. 483, 6 S.Ct. 209], that if the lapse of time merely bars a personal claim for damages there is no denial of federal due process in lifting an expired bar and disappointing the hope of
As the United States Supreme Court explained in Chase: “Statutes of limitation find their justification in necessity and convenience rather than in logic. They represent expedients, rather than principles. They are practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his defense after memories have faded, witnesses have died or disappeared, and evidence has been lost. [Citation.] They are by definition arbitrary, and their operation does not discriminate between the just and the unjust claim, or the avoidable and unavoidable delay. They have come into the law not through the judicial process but through legislation. They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a `fundamental’ right.... [T]he history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control. [Fn. omitted.]” (Chase Securities Corp. v. Donaldson, supra, 325 U.S. at pp. 314-315 [89 L.Ed. at pp. 1635-1636]; see also Starks v. S.E. Rykoff & Co. (9th Cir.1982) 673 F.2d 1106, 1109.)
(8) Similarly, as our Supreme Court recently pointed out in Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 56-57 [210 Cal. Rptr. 781, 694 P.2d 1153]: “The principle is ... well established that `[s]tatutorily imposed limitations on actions are technical defenses which should be strictly construed to avoid the forfeiture of a plaintiff‘s rights....’ [Citation.] `Such limitations are obstacles to just claims and the courts may not indulge in a strained construction to apply these statutes to the facts of a particular case....’ [Citation.] Finally, there is a `strong public policy that litigation be disposed of on the merits wherever possible.‘”
(9) Furthermore, even if we were to interpret application of
This delayed accrual rule is more in keeping with the gradually disabling nature of the disease. Since asbestosis is a progressive lung disease, the product of prolonged exposure to asbestos fibers and dust, the disease may be detected before there has been any significant respiratory impairment or resulting partial or total disability. (See 3 Witkin, Cal. Procedure, supra, § 410, p. 440; Blakey, supra, 153 Cal. App.3d at p. 105; Velasquez v. Fibreboard Paper Products Corp., supra, 97 Cal. App.3d at p. 883; Note, Issues in Asbestos Litigation (1983) 34 Hastings L.J. 871, 881.) Principles of fairness and social utility favor application of this remedial statute to plaintiffs such as Nelson. It is for society‘s as well as the individual‘s benefit that asbestosis victims should work as long as they are able to do so without placing their rights in jeopardy. (Puckett v. Johns-Manville Corp., supra, 169 Cal. App.3d 1010.) It would make no sense to penalize those victims who may have received an early diagnosis, particularly since there appears to be no evidence of any cure.
Moreover, the traditional justifications for statutes of limitations do not apply here since there is no real problem of loss of witnesses’ memories. An asbestos manufacturer‘s defense necessarily rests on documentary evidence which is typically kept in the course of business. (O‘Stricker v. Jim Walter Corp. (1983) 4 Ohio St.3d 84 [447 N.E.2d 727].) Nor can the alleged toxic tortfeasors claim they are entitled to psychological protection from surprise suits when most knew or should have known back in the 1950‘s of the toxic nature of the materials they were supplying. (Note, The Fairness and Constitutionality of Statutes of Limitations for Toxic Tort Suits (1983) 96 Harv.L.Rev. 1683, 1685.) “This is not a case where [defendants‘] conduct would have been different if the present rule had been known and the change foreseen.” (Chase Securities Corp. v. Donaldson, supra, 325 U.S. at p. 316 [89 L.Ed. at p. 1636].) Additionally, they could not reasonably have been relying on the “discovery” rule first enunciated in
Accordingly, the trial court erred in sustaining the demurrer. The order of dismissal is reversed and the case is remanded for further proceedings consistent with the views expressed herein.
Lillie, P.J., and Johnson, J., concurred.