J. W. WILDER v. AMATEX CORPORATION, THE CELOTEX CORPORATION, OWENS-CORNING FIBERGLAS CORPORATION, UNARCO INDUSTRIES, INC., FIBREBOARD CORPORATION, GAF CORPORATION, ARMSTRONG WORLD INDUSTRIES, INC., RAYBESTOS-MANHATTAN, INC., NICOLET INDUSTRIES, FORTY-EIGHT INSULATION, INC., EAGLE-PICHER INDUSTRIES, INC., KEENE CORPORATION, CAREY-CANADA, INC., JOHNS-MANVILLE SALES CORPORATION, STANDARD ASBESTOS INSULATION, INC., PITTSBURGH CORNING CORPORATION, H. K. PORTER, EMPIRE ACE INSULATION MANUFACTURING AND INSULATING COMPANY, TURNER-NEWALL, LTD., ROCK WOOL MANUFACTURING COMPANY, THE FLINTKOTE COMPANY, LAKE ASBESTOS OF QUEBEC, LTD., SOUTHERN TEXTILES CORPORATION, STARR-DAVIS, INC., STARR-DAVIS COMPANY, INC. OF SOUTH CAROLINA, NATIONAL GYPSUM COMPANY, A.C.&S., INC., U.S. MINERAL PRODUCTS COMPANY, NORTH BROTHERS, INC., JOHNS-MANVILLE AMIANTE CANADA, INC.
No. 239PA84
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 5 November 1985
314 N.C. 550
Sаles § 22.2— asbestosis from exposure to defendant‘s products—summary judgment improperly granted In an action to recover damages for asbestosis allegedly caused by plaintiff‘s exposure to defendant‘s asbestos-containing products, summary judgment was improperly entered for defendant where the forecast of evidence at the summary judgment hearing did not demonstrate that plaintiff at trial will not be able to show that he was exposed to asbestos-containing insulation products manufactured, sold or distributed by defendant at various times during his working career as an insulation installer at construction sites.
- Limitation of Actions § 4.2; Negligence § 20; Sales § 22— civil asbestosis claim—statutе of repose inapplicable
The ten-year statute of repose set forth in former
G.S. 1-15(b) (interim Supp. 1976, repealed 1979) does not apply to claims arising from disease and thus does not apply to plaintiff‘s civil action to recover damages for asbestosis allegedly caused by exposure to defendants’ asbestos-containing products. Plaintiff‘s claim accrued on the date he was diagnosed as having the disease asbestosis, and underG.S. 1-52(16) he had three years from that date to bring suit.
Justice BILLINGS did not participate in the consideration or decision of this case.
Justice MEYER concurring in part and dissenting in part.
APPEAL by plaintiff from trial court orders granting several defendants’ motions for summary judgment, entered at the 12 December 1983 Special Session of ORANGE County Superior
Haywood, Denny, Miller, Johnson, Sessoms & Haywood by Michael W. Patrick and George W. Miller, Jr., for plaintiff appellant.
Maupin, Taylor & Ellis, P.A., by Armistead J. Maupin, Richard M. Lewis and Mark S. Thomas for defendant appellee Eagle-Picher Industries, Inc.; Bell, Davis & Pitt, P.A., by Richard V. Bennett and William Kearns Davis for defendant appellee Pittsburgh Corning Corporation; Stith & Stith by F. Blackwell Stith for defendant appellee The Celotex Corporation; Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan by Thomas N. Barefoot and James Billings for defendant appellee Keene Corporation; Brown & Johnson by C. K. Brown, Jr. for defendant appellee Starr-Davis Company; Poisson, Barnhill & Britt by Donald E. Britt, Jr. and Stuart L. Egerton for defendant appellee Owens-Corning Fiberglass.
Taft, Taft & Haigler by Thomas F. Taft, Vickie Bletso and Kenneth E. Haigler for the amicus curiae, North Carolina White Lung Association.
EXUM, Justice.
Plaintiff seeks damages for the disease asbestosis which he claims was caused by his exposure to products manufactured, sold or distributed by defendants.1 Plaintiff alleges that he contracted the disease asbestosis through years of on-the-job contact with asbestos products manufactured, sold or distributed by the various defendants. Defendant appellees, after answering, moved for summary judgment, asserting in their motions that the “applicable statutes of limitations and/or repose” barred plaintiff‘s claim. The trial court granted their motions and entered summary
The trial court apparently allowed Owens-Corning‘s motion for summary judgment on the ground that plaintiff would be unable at trial to show that he was ever exposed to any asbestos products manufactured, sold or distributed by this defendant. After examining the forecast of evidence before the trial court, we believe there is nothing in this forecast to demonstrate that plaintiff will not be able at trial to show an exposure to asbestos products manufactured, sold or distributed by Owens-Corning. We therefore reverse the entry of summary judgment in favor of Owens-Corning. Concluding that
I.
[1] Whether the trial court properly allowed Owens-Corning‘s motion for summary judgment depends on whether the forecast of evidence demonstrated that plaintiff at trial would not be able to show any exposure to asbestos products manufactured, sold or distributed by this defendant. The theory underlying this defendant‘s motion and the trial court‘s ruling is that the forecast of evidence demonstrates that plaintiff at trial “cannot produce evidence to support an essential element of his” claim. Burnick v. Jurden, 306 N.C. 435, 450, 293 S.E. 2d 405, 415 (1982); Dickens v. Puryear, 302 N.C. 437, 276 S.E. 2d 325 (1981).
Plaintiff‘s forecast of evidence tended generally to show as follows: He worked as an insulator from 1938 until 1979 on at least seventy-five jobs in nine states installing insulation at construction sites. In this work he used asbestos-containing clоth and cements. His work as an insulator required that he cut and saw asbestos-containing insulation products, the cutting and sawing of which produced dust which he breathed. He began experiencing
Owens-Corning‘s forecast of evidence tended to show that it manufactured asbestos-containing Kaylo pipe covering and Kaylo block in November 1972, but it stopped selling these products in early 1973. Owens-Corning‘s sales records showed that it did ship its Kaylo product in 1970 to a Carоlina Power & Light Company job site at Roxboro, North Carolina, where plaintiff was working. The company sold its Kaylo product to plaintiff‘s employer, the Mancine-Klinchuck Company, Endicott, New York, in 1972, but the place where the product was actually delivered was not known.
Plaintiff‘s forecast of evidence regarding Owens-Corning‘s Kaylo tended to show he had been exposed to Kaylo pipe covering and block insulation during his working career. An affidavit filed by plaintiff tended to show that he was exposed to Kaylo on job sites where he worked as an insulator in 1945, 1954, 1957, 1958, and 1966-67. An affidavit of W. E. Thompson, one of plaintiff‘s coworkers, tended to show that he worked on various jobs with plаintiff as an insulator and that Kaylo was one of the products they used on these jobs in 1968-69, 1971-72, 1973-75, and 1976-77. Owens-Corning‘s answers to certain of plaintiff‘s interrogatories indicate that Kaylo was shipped to a number of job sites listed by plaintiff in his affidavit as work sites where he was exposed to asbestos-containing products. Plaintiff‘s own affidavit says that he was exposed to Kaylo pipe covering and block on job sites in 1970, 1954, 1956-57 and to “pipe covering and block” (brand name unspecified) in 1966-67 and 1973-75. According to plaintiff‘s deposition, he recalled specifically working with Kaylo as an insulator on a job for Carolina Power & Light Company in Moncure, North Carolina.
We agree with defendants’ contention that at trial plaintiff‘s evidence must demonstrate that he was actually exposed to the
Summary judgment in favor of Owens-Corning, therefore, is reversed.
II.
[2] Whether entry of summary judgment in favor of defendants other than Owens-Corning was proper depends on whеther
(b) Except where otherwise provided by statute, a cause of action, other than one for wrongful death or one for malpractice arising out of the performance or failure to perform professional services, having as an essential element bodily injury to the person or a defect in or damage to property which originated under circumstancеs making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs; provided that in such cases the period shall not exceed ten years from the last act of the defendant giving rise to the claim for relief.
Plaintiff and amicus, the North Carolina White Lung Association, argue that
The purpose of
Plaintiffs Shearin and Lewis were first injured when the sponge was left in Shearin‘s body and Lewis‘s Fallopian tubes were mistakenly tied. Likewise plaintiffs in Motor Lines and
Where there is either a breach of an agreement or a tortious invasion of a right for which the party aggrieved is entitled to recover even nominal damages, the statute of limitations immediately begins to run against the party aggrieved, unless he is under one of the disabilities specified in
G.S. 1-17 . . . . Nominal damages may be recovered in actions based on negligence. . . . The accrual of the cause of action must therefore be reckoned from the time the first injury, however slight, was sustained. . . . It is unimportant that the actual or the substantial damage does not occur until later if the whole injury results from the original tortious act. . . . ‘[P]roof of actual damage may extend to facts that occur and grow out of injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action‘. . . . It is likewise unimportant that the harmful consequences of the breach of duty or of contract were not discovered or discoverable at the time the cause of action accrued.
The Court said in Raftery, 291 N.C. at 188-89, 230 S.E. 2d at 409-10:
The purpose of
G.S. 1-15(b) was to give relief to injured persons from the harsh results flowing from this previously established rule of law. By the enactment of this statute in 1971, the Legislature provided that a cause of action, having as an essential element bodily injury or a defect in property, ‘which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin,’ is deemed to have accrued at the time of the injury, was discovered or ought reasonably to have been discovered by the claimant. Thus, the purpose of this statute was to enlarge, not to restrict the time within which an action for damages could be brought.To prevent the statute from subjecting tort feasors to suit for alleged acts or defaults so far in the past thаt evidence as to the event would be difficult to secure and intervening causes would be likely, though difficult to prove,
the Legislature added this proviso: ‘[p]rovided that in such cases the period [i.e., the period within which the action may be brought] shall not exceed ten years from the last act of the defendant, giving rise to the claim for relief.’ (Emphasis added.) Expressly, the proviso is limited to ‘such cases‘; that is, the proviso applies only to cases in which the bodily injury, or defect in property, for which damages are sought was not readily apparent to the claimant at the time of its origin. In such case, the action must be brought within ten years from the wrongful act or default even though the plaintiff did not discover the injury until later. (Emphasis supplied.)
None of the сases toward which the statute was directed involved disease. They all involved situations in which it was possible to identify a single point in time when plaintiff was first injured.
A disease presents an intrinsically different kind of claim. Diseases such as asbestosis, silicosis, and chronic obstructive lung disease normally develop over long periods of time after multiple exposures to offending substances which are thought to be causative agents. It is impossible to identify any particular exposure as the “first injury.” Indeed, one or even multiple exposures to an offending substance in these kinds of diseases may not constitute an injury. The first identifiable injury occurs when the disease is diagnosed as such, and at that time it is no longer latent. See, generally, Borel v. Fiberboard Paper Products Corp., 493 F. 2d 1076, 1083 (5th Cir. 1973), cert. denied, 419 U.S. 869 (1974) (asbestosis; disease does not ordinarily manifest itself until “ten to twenty-five or more years after exposure“); Rutledge v. Tultex Corp., 308 N.C. 85, 301 S.E. 2d 359 (1983) (chronic obstructive lung disease; 24 years’ exposure to respirable cotton dust and cigarette smoking ultimately resulted in diagnosis); Hansel v. Sherman Textiles, 304 N.C. 44, 283 S.E. 2d 101 (1981) (chronic obstructive lung disease, or byssinosis; 34 years’ exposure after which disease diagnosed); Haynes v. Feldspar Producing Co., 222 N.C. 163, 22 S.E. 2d 275 (1942) (silicosis; 10 years’ exposure before disease was diagnosable). In Booker v. Medical Center, 297 N.C. 458, 483, 256 S.E. 2d 189, 204 (1979), a hepatitis case, this Court recognized:
Most occupational diseases, however, are not the result of a single incident but rather of prolonged exposure to hazardous conditions or a disease-causing agent. In such cases it is seldom posible to identify a specific isolated event to which the injury may be attributed.
Even with diseases which might be caused by a single harmful exposure such as, for example, hepatitis, it is ordinarily impossible to determine which of many possible exposures in fact caused the disease. Id.
Both the Court and the legislature have long been cognizant of the difference between diseases on the one hand and other kinds of injury on the other from the standpoint of identifying legally relevant time periods. This is demonstrated by examination of some of the workers’ compensation statutes and this Court‘s decisions interpreting them.
In Blassingame v. Asbestos Co., 217 N.C. 223, 7 S.E. 2d 478 (1940), this Court had occasion to consider a then relatively recent amendment to the Wоrkers’ Compensation Act providing for compensation in cases of death or disability resulting from occupational disease, including asbestosis. Although the Workers’ Compensation Act requires that an injured employee give his employer written notice of accident within thirty days after its occurrence, the statute construed then specifically barred occupational disease claims unless: (1) “written notice of the first distinct manifestation” of the disease was given to the employer within 30 days “after such manifestation“; (2) if death occurred, written notice of death was given by the beneficiary to the employer or the Industrial Commission within 90 days after death; and (3) the clаim was filed within one year after “disablement or death.” Id. at 231-32, 7 S.E. 2d at 483. Claimant‘s husband died 1 April 1937. Although treated by a physician in his last illness, cause of death was not available until an autopsy was performed and the autopsy filed on 10 May 1937. The autopsy listed cause of death as “pneumonia . . .; asbestosis, early.” Id. at 230, 7 S.E. 2d at 482. There was medical testimony from a number of physicians, largely through hypothetical questions, to the effect that asbestosis had contributed to the worker‘s death. The worker‘s widow gave notice to the employer and filed a claim for compensation with the Industrial Commission on 20 July 1937. The Industrial Com-
In Duncan v. Carpenter, 233 N.C. 422, 64 S.E. 2d 410 (1951), claimant‘s lung disease rendered him unable to work in April 1948. The disease was first diagnosed in November 1948 as silicosis. Claimant filed his claim with the Industrial Commission on 25 April 1949, more than one year after he left work but less than a year after his disease was diagnosed. The Court was construing
Defendants argued that since plaintiff had not filed his claim with the Commission within one year of his disability or disablement, the claim was barred by the clear language of the statute. The Court, however, refused to so construe the statute. It said to do so “would make the time for filing a claim for compensation for an occupational disease identical with that fixed for filing a claim for an accident, resulting in injury or death . . . irrespective of the date the employee was advised by competent medical authority that he had such disease.” 233 N.C. at 426, 64 S.E. 2d at 413. The Court applied the canon of construction that “where a strict literal interpretation of the language of a statute would contravene the manifest purpose of the legislature, the reason and purpose of the law should control, and the strict letter thereof should be disregarded.” Id. at 426, 64 S.E. 2d at 413-14. The Court went on to hold that the legislature intended to measure the time for filing a claim for an occupational disease, not from the time of disablement, but from the time the employee was “notified by
Were we to rule otherwise, it would be necessary to hold that it was the legislative intent to require an employee, in many instances, suffering from any one of these occupational diseases to make a correct medical diagnosis of his own condition or to file his notice and claim for compensation before he knew he had such disease, or run the risk of having his claim barred by the one year statute.
From the foregoing we see that when the legislature considered occupational diseases, it almost always equated the disease‘s manifestation or its diagnosis as being the “injury” from which various time periods began to run. The earliest version of the occupational disease statute required, for example, that the 30-day-notice-to-employer period began to run from the disease‘s “first distinct manifestation.” Later the statute made the period begin to run from the time the employee was advised by medical authority that he suffered from the disease. We also see from the foregoing that this Court interpreted other statutes, which were less clear, consistently with the notion that in disease cases the event from which relevant time periods should be measured was the employee‘s notification of the disease‘s existence.
By this treatment of occupational disease claims, the legislature and the Court have recognized that exposure to disease-causing agents is not itself an injury. The body is daily bombarded by offending agents. Fortunately, it almost always is capable of defending itself against them and remains healthy until, in a few cases, the immune system fails and disease occurs. That, in the context of disease claims, constitutes the first injury. Although persons may have latent diseases of which they are unaware, it is not possible to say precisely when the disease first occurred in the body. The only possible point in time from which to measure the “first injury” in the context of a disease claim is when the disease is diagnosed. When the disease is diagnosed, it is no longer latent.
There was, therefore, no need in 1971 for the legislature to treat diseases as “latent injury claims” for the purpose of deter-
The legislature, as noted above, was reacting to the law of Jewell, Motor Lines, Shearin and Lewis which permitted latent, undiscovered, first injury to cause the statute of limitations to begin running. In a disease claim, as we have demonstrated, the diagnosed disease is the first injury. A manifested, diagnosed disease is not latent. There was, therefore, no need for a statute changing the accrual date for disease claims, and the statute by its terms does not purport to do so. The only need was for a statute changing the accrual date for latent injury claims such as those in Jewell, Motor Lines, Shearin and Lewis, and the statute by its terms is directed to these type claims.
We are bolstered in our opinion that the legislature did not intend for
A cause of action where injury, disease, death or damage occurs shall not be deemed to accrue until (1) the injury or damаge is actually inflicted or (2) death occurs or (3) the disease, damage or injury is diagnosed or should have reasonably been discovered, whichever event occurs later.
H.B. 572, Gen. Assembly of 1971, § 1 (codified at
A cause of action which results in injury not immediately apparent shall not be deemed to accrue until (1) the injury or damage is actually discovered or (2) death occurs or (3) the disease, damage, or injury is diagnosed or should have reasonably been discovered, whichever event first occurs.
Id. (incorporating amendment of 20 May 1971) (emphasis supplied). As finally enacted the statute omitted all references to claims arising out of diseаse. Ch. 1157, § 1, 1971 N.C. Laws 1706.
In construing statutes, “[i]t is always presumed that the legislature acted with care and deliberation and with full knowledge of prior and existing law.” State v. Benton, 276 N.C. 641, 658, 174 S.E. 2d 793, 804 (1970). In light of the statute‘s purpose, the state of the law when the statute was enacted, and the deliberate omission of reference to disease as this statute made its way through the legislative process, we are satisfied that the legislature intended the statute to have no application to claims arising from disease.
For the foregoing reasons, summary judgment in favor of all defеndant appellees is
Reversed.
Justice BILLINGS did not participate in the consideration or decision of this case.
Justice MEYER concurring in part and dissenting in part.
As I understand the majority opinion, it holds that neither the repealed
I cannot concur in Part II of the majority opinion which concludes that our legislature did not intend that occupational disease cases in general and asbestosis in particular should be covered by the statute of repose contained in the then applicable but later repealed
There are an estimated 25,000 asbestosis related suits pending in the United States, with perhaps 1,500 to 2,000 of them pending in the courts of this State and the United States District Courts in North Carolina, and the asbestosis cases are just the tip of the iceberg. Agent Orange plaintiffs arе estimated to number 50,000 or more. There are estimated to be over 1,000 DES suits pending, with many more to come as more of the estimated three million DES daughters bring suit. Add to these the so-called cigarette and smokeless tobacco cases, the toxic shock syndrome cases, the atomic veterans radiation cases, the Dalkon Shield cases, the toxic waste cases, the formaldehyde cases, the microwave cases, and the cornucopia of other potential “occupational disease” cases; and the problems seem insurmountable.
The onslaught of these cases and the accompanying increase in the number and amount of jury awards are forcing some manufacturers into bankruptcy and resulting in raised insurance premiums of hundreds and even thousands of percent for others. The business and insurance worlds have been permeated by a feeling of crisis. As a result, a majority of state legislatures
Contrary to the majority, I conclude that our legislature specifically intended that the now repealed
(b) Except where otherwise provided by statute, a cause of action, other than one for wrongful death or one for malpractice arising out of the performance or failure to perform professional services, having as an essential element bodily injury to thе person or a defect in or damage to property which originated under circumstances making the injury, defect or damage not readily apparent to the claimant at the time of its origin, is deemed to have accrued at the time the injury was discovered by the claimant, or ought reasonably to have been discovered by him, whichever event first occurs; provided that in such cases the period shall not exceed ten years from the last act of the defendant giving rise to the claim for relief.
I find the intent that occupational diseases should be covered in that (1) the statute specifically provided that it should apply “[e]xcept where otherwise provided by statute,” and no other statute provided otherwise for asbestosis claims in civil actions; and (2) the statute also specifically excluded two categories of cases, wrongful death actions and malpractice actions in which the damage or injury was not readily apparent at the time of its origin; thus, it is obvious that although the legislature knew how to exclude from the repose statute certain categories of cases, it
It is irrefutable that our legislature was well aware of the unique nature of asbestosis and silicosis claims as it hаd made specific provisions for their uniqueness in numerous parts of the North Carolina Workers’ Compensation Act.
§ 97-58. Claims for certain diseases restricted; time limit for filing claims.
(a) . . . [A]n employer shall not be liable for any compensation for asbestosis unless disablement or death results within ten years of the last exposure to that disease . . . .
(At the time our legislature adopted the now repealed
Under the majority holding, today, even under the present
If my understanding of the majority opinion is correct, the majority has today removed any time bar whatsoever to a civil action on an asbestosis claim where the diagnosis was prior to 1 October 1979 so long as the claimant files his complaint within three years of the diagnosis. In such cases, the relationship between the claimant‘s employment and the diagnosis of the disease is no longer of any impоrtance though the employment relationship may have terminated a half century or more prior to the diagnosis. Nor does it any longer matter in those situations that a claimant‘s last exposure was a half century or more prior to diagnosis. Nor that the claimant may have suffered severe respiratory problems for a half century or more—so long as his con-
It should be noted that although the majority opinion restricts its holding to civil actions for asbestosis claims in which the diagnosis was made prior to 1 October 1979 (and those suits must have been filed by 2 October 1982), it applies to literally thousands of claims already in the judicial pipeline. Indeed, we have already identified the possibility of some 1,500 to 2,000 such suits pending in this State.
Having personally concluded that the statute of repose—former