Wyatt v. A-Best Products Co.

We emotional distress. serious outrageous conduct “ex Newsom tort of argu- (1) the merits of Newsom’s of the defen need not reach only the conduct ists where character, ment, provide outrageous in Newsom has failed so because dants has been beyond degree, identifying to be the nature of the in as so extreme evidence and regarded decency, defamatory to be or that pale allegedly statements utterly in a civilized intolerable in fact made defamatory atrocious and were statements results in serious society, the conduct Newsom report. Since with the connection Hosp., Bringle v. Methodist injury.” mental know what state- does not even apparently (Tenn.App.1985); Swal in con- government made to ments were Co., 543 S.W.2d Elec. certainly lows Western cannot report, he nection with Court, (Tenn.1976). Furthermore, or were false the statements prove outrageous con tort of commenting on the damages. Sullivan v. him See caused actual duct, has stated: (Tenn.App.1984) Young, (“The publica- enough only prove that the defendant plaintiff has not been must not It person, is tortious an intent which to a third has acted with a false statement tion of criminal, intended to damages.”). or that he has prove even actual must also but he distress, that his or even inflict emotional court of the trial Accordingly, the order ‘malice,’ characterized has been conduct summary judgment to defendant granting which would degree aggravation or a appeal are of this is affirmed. Costs Textron damages for punitive plaintiff entitle against appellant. assessed Liability found has been another tort. outra- has been so the conduct where KOCH, JJ., concur. FARMER and character, in de- and so extreme geous in possible bounds go beyond all gree, as to utterly regarded as decency, and to be community. Gen- in a civilized

intolerable the recita-

erally, case is one which average member facts to an

tion of the resent- community arouse. his would actor, him to and lead against

ment

exclaim, ‘Outrageous!’ Wyatt, and Brenda Herbert E. WYATT Corp., 756 Maintenance Blair v. Allied wife, Plaintiffs-Appellants, his (quoting (Tenn.App.1988) (Second) § 46 cmt. d of Torts Restatement (1965)). does not in this case The record COMPANY, INC., A-BEST PRODUCTS charge support conduct that would reveal Defendants-Appellees. al., et conduct, actions outrageous because level of rise to the complained of do not Tennessee, Appeals Court decency, and beyond pale of outrageous, Eastern Section. in a civilized utterly intolerable atrocious society. November in Part Granted to Rehear Petition of Action Defamation Cause IV. Part; Opinion Modified and Denied amended of his Finally, Count VII 28, 1995. Dec. Textron de asserts that complaint Newsom Appeal him to the fed reported Permission Application him when it famed by Supreme of his actions Court because government Denied eral 28, 1996. Group during May the com with Tool connection asserts bidding process. Newsom petitive to the his actions report of Textron’s pursuant of Defense

Department seq. Act, §§ et 41 U.S.C.

Anti-Kickback caused support” and factual

was “without Nassios, Weber, III,

George Mike G. A. III, The Law Of- Ownby, of Franklin Jere Knoxville, and Angelos, of Peter G. fices counsel, Appellants. for Phillips, Jerry J. Woolf, Bright, M. Denise Hugh B. Louis C. McClane, Woolf, Little, Moretz, J. Ford Knoxville, for Carpenter, Bright, & Allen Owens-Illinois, Inc. Appellee Tarwater, Paine, Dwight E. F. Donald Tillman, Bickers, Andrew R. A. Thomas Fi- Knoxville, Owens-Coming Appellee for Corporation. berglas Burson, Attorney General Charles W. Attorney Steiling, Assistant Reporter, Kevin holding on the General, Intervenor, latter was based Attorney claims. This General defen- determination that State of Tennessee. trial court’s right acquired a vested dants had Gillenwater, T. Nichol Paul Gillenwater of the 1978 enactment as a result Knoxville, Partlett, Ames, David F. & TPLA, vested could not and that this Law, University Nash- Vanderbilt School ex- retroactively divested the asbestos ville, filed Amicus Curiae brief. down the ception. trial court also struck Edwards, Rowland, Michael Y. Janet class exception as unconstitutional Rowland, P.C., Knoxville, & filed Rowland XI, legislation in violation of Article Amicus Curiae brief. Wyatts of the Tennessee Constitution. Waite, & Knox- David E. Waite Brown following pose the appeal, raising issues that ville, filed Amicus Curiae brief. questions: Hood, Phillips, H. Mark James Robert G. right in acquire 1. Did the defendants Wilson, IV, III, Gandy, Joseph D. C. ten-year period of limita- the bar of the S.C., Firm, Charleston, and R. Hood Law by not be divested enact- tions that could Cagle Kennerly, Montgomery & Hunter exception without ment of the asbestos Knoxville, Finley, filed brief of Amici A.P. 20, I, running afoul of Article Section Industries, Inc., Armstrong In- Green World the Tennessee Constitution? dustries, Inc., Management Asbestos Claims exception unconstitu- 2. Is the asbestos Compa- Corporation Gypsum National f/k/a legislation in Arti- tional class violation of PLC, ny, Corporation, T & N GAF 8, XI, cle of the Tennessee Consti- Gypsum Company. United States tution? SUSANO, Judge. damages in complaint The this case seeks I lung by exposure for disease caused to asbes Wyatt carpenter from 1951 to worked as Wyatt (Wyatt) tos. Herbert E. sued numer employment-related expo- He claims 1984. products to ous manufacturers sellers of containing sure to allegedly exposed during

which he was his by sold the defen- were manufactured and/or wife, years. Wyatt, working His Brenda Although it is not clear when he was dants. judge sued for loss of consortium. The trial asbestos, exposed it is last granted summary judgment. the defendants none of the defendants sold or distributed Wyatts’ He held that action was time- any asbestos-containing products relevant to by repose barred 1, 1978, years July this action within 29-28-103(a)1 , part § found at T.C.A. original date of the enactment of the effective Liability Products Act of 1978 Tennessee TPLA. (TPLA)2. He also concluded that the 1979 TPLA, 1984, early Wyatt opted In for retirement amendment3 to the codified at T.C.A. 29-28-103(b)4, including problems, § ex due to health unex- so-called asbestos 1989, May, constitutionally plained of breath. In ception, could not be con shortness Wyatts’ already-barred diagnosed was with asbestosis. He strued to revive the he added.) 29-28-103(a) provides, pertinent (Emphasis § 1. T.C.A. part, as follows: 1978, Chapter July Public Acts of effective 2. Any against a manufacturer or seller of action 1, 1978. injury person property product or for unreasonably dan- its defective or caused brought gerous condition must be within Chapter Public Acts of effective 3. 28-3-104, 28-3-105, period by §§ 28-3- fixed 47-2-725, any notwithstanding but 202 and exceptions provisions must be to these 29-28-103(b) pertinent § provides, in 4. T.C.A. (6) brought years of the date of within six part, as follows: event, brought injury, any the action must be foregoing (10) [T.C.A. limitation of actions the date on which the within ten from 29-28-103(a) apply any § shall not action purchased consump- ] product use or was first for resulting exposure to asbestos ... tion ... May classifying a statute as one of his wife filed this action on tinction year within one of the date he discovered or one of limitations is the event or suffering designated “triggering that was from an asbestos-relat- he occurrence as the event,” i.e., lung ed disease. “clock” the event that starts the filing running on the time allowed for the II limitations, In a suit. traditional statute depends upon accrual triggering typically resolution of this case event is i.e., action, proper interpretation of T.C.A. 29-28- all the elements of when 103(a). action, provides, pertinent including injury damages, That statute have coalesced, part, legally cognizable resulting as follows: in a repose, claim. A statute of on the other Any against a manufacturer or sell- action hand, triggering typically event describes product injury person or er of a accrual, something prompting other than property its defective or unrea- caused “entirely to note that such statutes are sonably dangerous condition must courts any ...” by §§ unrelated to the accrual of action brought within the fixed 28- Co., 3-104, 28-3-105, 47-2-725, 28-3-202 and Watts v. Putnam Howe, (Tenn.1975), notwithstanding exceptions but Cronin v. (Tenn.1995). provisions brought it must be within these injury, years of the date of six trig- repose sets the Because a statute of event, brought the action must be within something accru- gering event as other than (10) years the date on which the al, barring plain- it can have the effect of a product purchased was use or first accrues, typically tiffs claim before it most consumption ... plaintiff aware of his or before the becomes added). question in (Emphasis A threshold Cronin, 913; injury. 906 S.W.2d at her See part italicized this case is whether the (“A Bruce, of re- 894 S.W.2d at 276 statute properly is characterized as a statute statute it pose provision because is substantive limitations, Wyatt repose. or as one of right stat- expressly qualifies the which the argues that it should be classified as a con by barring right of ute creates action even limitations, pointing out ventional statute injury injury occurred if the before the has part that it was a of a section entitled “Stat prescribed time subsequent occurs orig ute Limitations” when the TPLA was possibility prompted has period”) This inally legislatures5; and that enacted repose affect courts to hold that statutes exception6 to the TPLA the 1979 asbestos suit, bring right party of a the substantive but not “re refers to “limitation of actions” remedy. as as the Id. well however, think, analysis pose.” We around the substance of the should revolve ten-year period forth in set logical in statutory language, and its and 29-28-103(a) properly § character T.C.A. effect, entitled tended rather than how was repose. triggering as a statute of Its ized or labeled. product was event is the “date on which consumption.” It purchased for use or in Tennessee have consis first Courts occur running the “clock” from that tently pointed distinction between a starts out the rence, years. up after ten repose. and the time is statute of limitations and a statute of originally TPLA was enacted affecting When the The former has been described 1978, action, legislature provide did not an ex remedy party’s for a cause injuries for latent ception or allowance running of a statute has while like; “in event” “nullif[y] remedy and its use of the words been said to both the Hamilton, unconditional nature of underscores the right.” Bruce v. 894 S.W.2d Further, courts 274, ten-year limitation. several (Tenn.App.1993); v. General 276 Via (W.D.Tenn. issue, 837, or issues Co., have addressed this F.Supp. that Elec. 799 839 it, 1992). interpreted the ten- closely related to have Generally speaking, the critical dis- 3, 2, opinion. opinion. 6. See footnote this 5. See footnote

103 dictates, Via, and since it is clear of the TPLA so year repose. a statute of 839; look no further Engi unambiguous v. Five Star we should F.Supp. 799 at Jones and (Tenn. 882, neering, 883 Ed. Ass’n. S.W.2d for its construction. Hamblen Co. 428, 1986); Ed., Myers Hayes Corp., Int'l. v. Bd. 892 S.W.2d v. Hamblen Co. (M.D.Tenn.1988); F.Supp. 624-25 (Tenn.App.1994), Carson Creek Vaca 431-32 (5th TVA, State, Wayne Resorts, 730 F.2d 400-01 tion Inc. Cir.1984). Harris, Accordingly, hold that the ten- (Tenn.1993), we Tenn. Turner v. (1955). year period T.C.A. 29-28- established 103(a) repose. is a statute of argue that the effect of The defendants Wyatt’s cause of action on extinguishment of III a vested was to create them The next issue we must address is Therefore, they repose. ar- right to rest upon of the TPLA’s enactment the effect cannot exception of 1979 gue, the asbestos Wyatt’s Wyatt support of action. and cause run- retroactively Wyatt’s claim without save strenuously ably argue ing amici that I, ning 20 of the afoul of Article Wyatt’s since cause of action did not accrue agree. Tennessee Constitution. We exception7 until became after the apply effective in should I, Article Section 20 of the Tennes to, save, They rely upon his action. see states Constitution caselaw to the effect that “there is Tennessee law, impair retrospective or law [t]hat no no in a statute of limitation vested contracts, obligations of shall be ing the until the cause or action has unless and made. Watts, expired.” at accrued Court, regarding The Tennessee ten-year period If was a conven laws, they has “retrospective” stated limitations, agree, tional statute of we would generally defined, since statute of limitations does legal stand- generally are from a accrual, which, run not start until under away impair or point, as those which take (see discovery Currey, the rule Teeters v. 518 rights acquired existing under laws vested (Tenn.1974); McCroskey 512 v. S.W.2d obligation, impose a new or create a new (Tenn. Co., Bryant Air Cond. 524 S.W.2d 487 respect duty, disability in or attach new 1975)), plaintiff does not occur until the dis already or considerations transactions his or her covers should have discovered passed.

injury. (Tenn. Gross, 902, v. 907 Morris ten-year period the Since set forth 1978). 29-28-103(a) repose, § T.C.A. is a statute of long law in that It has been the Tennessee logical it we do not believe to focus on the by a of action is barred when cause accrual, since, above, date of as noted limitation, in force at the time triggering with- statute runs from the event arose, right to sue and until the time case, regard present out to accrual. In the rely expired, right that the limitation 29-28-103(a) language § plain of T.C.A. upon as a defense is a vested the statute requires interpretation an by not be disturbed subse- right that can to run from and after the date starts quent legislation. con- product’s original of the sale for use or Stephens, 48 Tenn. 286 all of v. sumption. it is Girdner Since Ford, (Tenn.1870); v. 488 see also Henderson complained of in this case were products (Tenn.1972); v. 722 Collier years prior passage S.W.2d sold more than ten Div., act, TPLA, Light, & 657 Memphis Gas Water 1978 enactment of the 29-28-103(a), (Tenn.App.1983); § 775 specifically T.C.A. barred S.W.2d Morford (Tenn. Cho, action, Kyun right Yong S.W.2d Wyatts’ causes of both the 1, 1978, Corp., 495 App.1987); Buckner v. GAF remedy, July the date the on (E.D.Tenn.1979). Thus, it language F.Supp. plain TPLA became effective. opinion. 7. See footnote is, that in a defendant has a construe the statute as it not as we

is clear Tennessee right ought vested in a statute of limitations de- think it to be. if the cause of action has accrued and fense Watts, 525 at 494. By analogy, expired. the time allotted has Wyatt argues that a construction such as in a statute of defendant has vested applied the one we have this case would

repose triggering if the event has occurred 28-3-104(b), § create a conflict with T.C.A. noted, expired. and the time As we have on states, which repose operated the statute of section, purpose For the of this Wyatt’s right pursue to cut off his cause of liability cases: Assembly action. To allow the General (1) injury to The cause of action for retroactively through revive it the 1979 as- person accrue on the date of the shall imposing would be a new bestos injury, negli- personal not the date of the duty respect on “in of transac- defendants gence product; or the sale of a already passed,” ... tions violation of (2) Tennessee person deprived Constitution. No shall be right to maintain a cause of action until Consequently, we hold that the 1979 asbes (1) year injury; from the date of the one applied retroactively tos cannot be Wyatt’s already-barred to revive cause of (3) Under no circumstances shall the cause pleasant, for it action. This result is not person sus- of action be barred before the Wyatt’s claim means that was barred injury. tains an rationally expected TPLA before he could be injur to have been aware that he suffered an cursory language quoted comparison A However, y.8 legislature 29-28-103(a) is clear that the § above with that of T.C.A. power to enact statutes has the constitutional (“notwithstanding any exceptions to these which, definition, possi have the provisions would include 28-3- [which barring a claim before it accrues. 104(b) event, ble effect ... action must Jones, (upholding con See 717 S.W.2d at 883 (emphasis ...” brought within ten stitutionality repose); added) of TPLA statute of provides answer to that conten- (Tenn. Schrader, Harrison v. 569 S.W.2d 822 tion —there is no conflict between the two Assoc., 1978); Angus Jessup R. Harmon statutes. (Tenn.1981). Further, IV unambiguous lan it is what the clear and guage of demands. In its 1978 the statute subject may to fur- Because this case be enactment, legislature placed could have review, appellate we now turn to the ther exceptions statute for on the second issue in this case: the constitutionali- prior to a certain date or for latent sold XI, Tennes- ty, under Article Section 8 like, injury not It cases or the but did do so. Constitution, exception of the asbestos see to read prerogative is not the of the courts provides: itself. That constitutional section into the statute an where none Legislature power have no to shall The words of the late Justice Joe exists. suspend any general law for the benefit of Court, Henry regarding an individual, any particular pass nor to any repose, particularly rele other statute of are inconsis- law for the benefit of individuals vant here: land; general laws’of the nor tent with any any individual necessarily philosophical- pass granting to law to agree We do not immunitie, individuals, rights, privileges, only ly reach. We can or with the results we Clay perhaps it.” See also v. Johns- unpleasant what the fed- before he discovers result is This when, (6th focusing upon Corp., Cir. eral Sixth Circuit was 722 F.2d 1289 Manville Sales Murphree Raybestos-Manhattan, 1983); v. Corp., case Cathey Sales 776 v. Johns-Manville Inc., 459, (6th Cir.1982) predict- 696 F.2d (6th Cir.1985). Obviously, ex F.2d 1565 Supreme Court will no ”[t]he ed that Tennessee present our tent that these cases differ from rights prevent longer use the vested doctrine disagreement analysis, express with their we our ameliorating legislature the Tennessee from holdings predictions. plaintiff’s that bars a claim harshness of rule period after exemptions other than came manifested or [immunities] be, latency. may by the same law extended such as community, any who member the asbestos trial court struck down bring may able to himself within legislation. improper class corporation provisions of such law. No V powers or increased or

shall be created its by special laws but the General diminished long recog have Tennessee courts Assembly provide by general laws for shall XI, similarity Article Sec nized the between hereaf- organization corporations, of all 8, equal protection clause of tion and the time, created, any may, at ter which laws Constitution, ap therefore and have federal repealed and no such altera- be altered or analysis constitu protection plied equal an with or divest repeal tion or shall interfere challenges brought pursuant to Article tional rights which have become vested. State, XI, 125 Tenn. 8. Motlow v. (1912); 177, Estrin 145 S.W. argue, court The defendants and the trial Moss, 345, 348 221 Tenn. 430 S.W.2d exception, which agreed, that the asbestos (1968); Partnership v. King-Bradwall John foregoing simply that “the limitation states (Tenn. Controls, son 865 S.W.2d 29-28-103(a) ap- not ] actions shall [T.C.A. (“the App.1993) Supreme Court of Tennessee ply any resulting exposure to action virtually equal pro adopted ‘has identical asbestos,” unfairly singles pro- out asbestos XI, analysis Article tection standard or under by exempting ducers and sellers ”) Tennessee Section 8 of the Constitution.’ ap- repose, claims from the statute of while they, argue, not nor could The defendants do plying prod- the statute to manufacturers of infringement of a fundamental that ucts similar to asbestos. here, legislature that has involved or point, On this the trial court stated the involving “suspect” a classification created following, succinctly which rather summa- class, as race or national “protected” such position: rizes the defendants’ Therefore, ap origin. the standard to be appear legislative history It does not plied familiar “rational basis” standard. is the and record furnished to the Court that the 21; City King-Bradwall, 865 at legislature gave consideration to Memphis v. International Broth. Elec. injury only product produced other (Tenn.1976); U., Wrkrs. prolonged exposure after or for which (Tenn. Tester, 823, 828 State v. latency there was a before 1994). symptoms injury onset of and discov- analytical principles of The basic ery process may of whatever disease have equal analysis set forth protection our were by exposure been caused to or use of such eight ago in the landmark case over decades products. particularly, nothing More has State, 125 Tenn. 145 S.W. of Motlow sug- ... been furnished to the Court (1912), they have remained un gests any treating reason for asbestosis or changed since then: resulting other disease conditions from ex- “(1) equal protection The clause of posure to asbestos from other diseases from only exposure amendment does not take prolonged that occur after fourteenth adop- power classify in the products or which manifest an onset of the state the laws, symptoms injury police tion of but admits of the exer- and after a Frankly, satisfactory scope of discretion in that latency expla- ... no cise of a wide only why regard, and avoids what is done when given nation has been to the Court basis, any reasonable and legislature exempt chose to asbestos from it is without (2) purely arbitrary. A Products therefore it is the strictures of the Tennessee Act, having some reasonable basis Liability did not include manufactur- classification merely against that clause producers and and sellers of other does not offend ers not made mathematical thought which were to have a because it is with in injury only pro- nicety, practice in it results propensity to cause after or because (3) exposure injury inequality. some the classifiea- longed or from which be- When 106 question, equal protection in in if that all evils of the same

tion such a law is called reasonably genus state of facts can be con- be eradicated or none at all” is also it, apposite Railway Express Agency that here. v. ceived would sustain existence York, 106, 110, People of that state of facts at the time the law New 336 U.S. 69 (1948). must assumed. One 93 L.Ed. 533 was enacted S.Ct. in a law who assails the classification such exception already The has with asbestos carry showing must the burden of that very equal protection stood several similar basis, upon any does not rest reasonable challenges. upheld in Courts each case have essentially arbitrary.” but is The same exception, finding a rational for basis disposing question in apply rules must of a Laboratories, Spence v. classification. Miles 1, § arising under Article 8 of our Consti- (E.D.Tenn.1992) Inc., F.Supp. 961 tution of 1870 ... equal (upholding exception protec in face of Id., quoting Lindsley v. Natural Carbonic challenge argued patients tion that AIDS Co., Gas 220 U.S. 31 S.Ct. 55 L.Ed. situated); similarly asbestos victims are (1911). determining The touchstone in (5th TVA, Wayne v. 730 F.2d Cir. legislature proper has whether the drawn 1984) (upholding TPLA in reasonableness; classification is its and as equal protection challenge arguing face of demonstrate, guidelines legis- the above exposure latent-injury-causing phosphate given fairly leeway, for lature is broad when slag exposure); Kochins similar to asbestos a court determines that a classification is Linden-Alimak, 799 F.2d unreasonable, substituting judgment it is its (6th Cir.1986) (“we exemp think the statute’s legislature, for that this it should injuries a ration tion of asbestos-related has clearly not do unless the classification is arbi- injuries al basis if because such often trary and has no rational basis. considerably longer take than ten themselves.”) manifest The court Pottratz Applying principles to the these Davis, (D.Md.1984), F.Supp. pre case, say instant we cannot that the General equal protection challenge an sented with Assembly’s classify decision to asbestos-re Oregon a similar asbestos an differently lated claims from other latent- statute, if responded very apposite, awith injury patently arbitrary claims is so as lack chilling, somewhat statement: perhaps ing rational basis. It is true legislature’s purpose might have of limita- The reasonableness of statutes effectively been or more served better specially applied to asbestosis tions as general exemption injury all latent recognized, repeatedly has been claims claims; however, the Tennessee legislature enti- The is [citations omitted] noted, has Court matter, much in this tled to deference every respect “... the law need not be presumed to be con- the statute should be logically aims to be consistent with its simply stitutional. It will be noted enough It is that there is constitutional. among many place factors which asbes- correction, an at hand for and that it evil injuries them- tos-related a class thought particular legis- might be selves, it known that asbestos-related way measure was a rational to cor- lative dependent upon repeated diseases are not legislature may one rect it.... select upon the exposures, but inhalations apply remedy phase of field and one lungs presence of the fiber others_ there, pro- neglecting one, exposure, potentially [citation initial Equal Protection Clause hibition usually long period of There is omitted] goes no further than the invidious discrimi- latency up years before onset of to 30 nation.” prod- ... different the diseases Over 3000 (Tenn. State, daily one time contained ucts in use at Swain v. brushes, asbestos, ironing including 1975), Optical tooth v. Lee quoting Williamson covers, roofing Oklahoma, linings, shin- board brake 75 S.Ct. 348 U.S. material, (1955). insulating gles, fireproofing and Supreme The Court’s oft- L.Ed. 563 these few factors requirement omitted] With quoted [citation statement that is no “[i]t ON PETITION mind, is no OPINION hardly be said that there it can REHEARING Oregon legisla- FOR justification for the rational to treat asbestos claimants ture’s decision curiae appellants and two of the amici The differently that of other claimants rehearing. peti- petitions for The have filed First, they argue points.

tioners make two Supreme the recent that we overlooked adopt agree at 955-56. We with and Id. cases of in the consolidated Court decision reasoning court’s on this issue. We Pottratz al., ACandS, Inc., et Wyatt, et ux1 v. Herbert legislature’s remedial action hold that the ACandS, ux, Kyle, et et al. v. and James W. from the excepting asbestos-related claims al., 851, Supreme Court et repose scheme general statute of TPLA’s (hereinafter referred at Knoxville XI, Article does not offend decision”). Wyatt Supreme Court’s as “the Tennessee Constitution. They opinion our conflicts with contend that that decision. has uncovered one case Our research Georgia this conclusion. The in conflict with that we petitioners’ point second is The Court, pres- question faced Supreme with opinion in our incorrect when we stated were Corp. ently before us in the case Celotex of the defen that “it is that none Joseph Hosp., 259 Ga. 376 S.E.2d St. any asbestos-con dants sold or distributed (1989), Georgia held a similar asbes- to this action within taining products relevant equal protection. tos violative of date of years of the effective However, sum total of that court’s rea- of the TPLA.” original enactment soning and discussion on the matter is as in the these contentions We will consider follows: order stated. singles special This act out for treatment incorrect; we did not petitioners The are against property claims manufacturers Supreme Wyatt deci- overlook the Court’s suppliers of asbestos and differentiates well aware of that decision sion. We were might them from all other claims that opinion in the instant before we filed our upon or toxic sub- based other hazardous Supreme judgment our case. It is sepa- Because we do not find this stances. controlling on Wyatt decision is not Court’s reasonable, rate classification to be appeal. in this the issues raised stan- statute does not meet constitutional Supreme Wyatt decision ad- Court’s dards. i.e., degree of “what questions, dressed two original) citation to au- (emphasis Id. No certainty is sufficient of a medical condition thority given support trigger of this state- plaintiff was on notice and place limitations,” quick ment. are not so to substitute our We of the statute commencement legislature’s judgment tentative, diag- for the on this matter preliminary and “whether a perhaps was the court. nosis, by Celotex commence the itself to insufficient make, statute, duty due with activates appellants’ Because we hold that inquiries into the cause of diligence, further claims are barred statute 851, 856- plaintiffs condition.” Liability repose in the Tennessee Products examined Both of these issues were judgment Act we affirm the in the context of the one- Supreme Court for the trial court. This case is remanded year limitations found at T.C.A. on of costs assessed below. Costs collection repose at issue The statute of 28-3-104. against appeal are taxed and assessed or even case was not at issue in the instant appellants. Wyatt de- Supreme discussed Court’s focus was on Supreme Court’s cision. accrues, a FRANKS, J., of action GODDARD, J., of when a cause the issue P. expiration concept that immaterial to the concur. appeal pursuant pursued case was on plaintiffs Court case are mer 1. The in the provisions of Tenn.R.Civ.P. 54.02. instant case. The for- the same as those in the repose. petitioners’ argu- appellee our was correct as to the statute of The rationale Owens-Illinois, case, Wyatt being ment based on the Court’s Inc. This the our decision is without merit. original respect decision with to Owens-Illi- nois, Inc., stands. To the extent that the by Moving point to the second raised the rehearing challenge holding petitions for our petitioners, again rec- we have reviewed the Owens-Illinois, they to are DENIED ord in this case. We have concluded that we in toto. stated, places incorrect when we at two were opinion,2 parties in our were in Wyatts’ petition rehearing for con- agreement appellees that all of the ceased to tends that “there is no evidence on the rec- manufacture and distribute asbestos-contain- Owens-Coming Fiberg- ord that Defendant ing products years prior more than ten to stopped manufacturing distributing las 1, 1978, July date of the TPLA. effective prior July asbestos material to 1968.” global stipulation. There was no such What this assertion involves Owens- While the trial court find and what is “undis- did prompted Corning Fiberglas, it has us to puted” in the before us is the follow- record carefully the record before us as to examine ing, trial court’s taken verbatim from the were all the other who awarded defendants judgment: final reference, summary judgment. For ease of dispute There is no that none of the above granted summary defendants who were sold, defendants distributed or otherwise Owens-Illinois, Inc., judgment, other than placed into the stream of commerce to as “the other defendants” will be referred asbestos-containing products relevant to granted or “the other defendants who were (10) years action this within ten summary judgment.” filing this action. added). (Emphasis judge trial Since the of the record fails to disclose Our review found the asbestos to be unconsti- type contemplat- undisputed evidence of the tutional, naturally he focused on the TPLA’s by reflecting that ed Tenn.R.Civ.P. 56.03 ten-year years statute of and the “ten manufacture and other defendants ceased to [immediately preceding] filing of this ac- asbestos-containing products distribute more tion.” Our focus was different. Since we 1, 1979, years prior July to than ten found the asbestos to be constitu- exception. It date of the asbestos effective tional, appellees’ we were concerned with the did; may be that some of them but prior July the effective activities at evidence before us does not so indicate exception. date of that stage proceedings.3 of the Since the support us does not the other record before opinion

We held in our (giv- summary judgment defendants’ Wyatts’ appellees against action all of the ruling respect with to the asbestos en our thought was barred because we that all of exception), those defendants are not entitled appellees ceased to manufacture and dis summary judgment. defen- The other asbestos-containing products more tribute dants, moving parties, burden 1, 1978, as the had the years prior July than ten genuine and “persuading the court that no effective date of the TPLA and its [they and that repose. Wyatts that material factual issues exist concede fact, opinion made page slip In there are comments in record 2. At we said that by effect that their some defense counsel to the undisputed defendants it is that none of the not been out of the asbestos market clients had asbestos-containing sold or distributed excep- years ten or more when the asbestos products relevant to this action within ten enacted. While there are comments tion was years the effective date of the indicating had that their clients other counsel original enactment of the TPLA. out of this business for more than been page prefaced with the At we a statement exception, prior we do not find a to the asbestos statements, following comment: by Wyatts stipulation to these Owens-Illinois, that all of the except counsel, Since it Inc. Statements of as to side, complained stipulated of in this case were sold more the other do not passage Tenn. years prior qualify us under than ten not for consideration TPLA, ... R.Civ.P. 56.03. 1978 enactment of the are], therefore, original opinion modified judgment as a sistent with our entitled to Hall, opinion. Byrd of law.” this matter (Tenn.1993). If the record is factu- modify original opinion our and We further is, deficient, ally and find that we appeal to judgment regarding the costs on deficiency moving parties, is fatal to the to provide that those costs are taxed one-half case, the other defendants. to the other de- appellants and one-half fendants. original opinion, In our we indicated on

page addressing 104 that we were the consti- herein, Except as modified we adhere tutionality exception of the asbestos “[b]e- original opinion. our may subject cause this case to further IT SO ORDERED. IS appellate review.” We now realize that our necessary, review this was not review, possible appellate GODDARD, P.J., FRANKS, J.,

because further and but because a resolution of that issue was concur. our

essential to review of the other defen- summary judgment.

dants’ entitlement Judge

Had Rosenbalm’s constitutional evalu-

ation of asbestos been sus- us,

tained all of the defendants would summary judgment

have been entitled to undisputed proof

based on the that none of placed any

the defendants asbestos-contain- ing products into the stream of commerce TAYLOR, Plaintiff-Appellee, G.W. action; years filing within of this however, ruling respect under our with defendants, exception, the other TRANS AERO CORPORATION us, based on the record before are not enti- Flight Management, Inc. tled to bar of Defendants-Appellants. repose, judg- and hence are not entitled to Tennessee, summary Appeals ment in a fashion. Court Section, at Western Jackson. herein, peti For the reasons stated rehearing tions for as to the other defen Dec. granted summary judgment dants who were Application Appeal for Permission modify opinion are GRANTED. We our by Supreme Denied Court judgment in this case to delete our state 29, 1996. April that it is ments that none of the defendants sold distributed asbestos-

containing products within ten

1, 1978,except to the extent statements those Owens-Illinois, previously

refer to Inc. As

indicated, those statements are true as

Owens-Illinois, Inc. modify judg- opinion further our

We

ment so that we now find and hold that

Owens-Illinois, Inc., summary entitled

judgment. affirming Our decision the trial judgment

court’s as to that stands. defendant judgment awarding of the trial court

summary judgment to the other defendants

is vacated and this case is remanded to the proceedings incon-

trial court for further not

Case Details

Case Name: Wyatt v. A-Best Products Co.

Court Name: Court of Appeals of Tennessee

Date Published: Nov 30, 1995

Citation: 924 S.W.2d 98

Court Abbreviation: Tenn. Ct. App.