Larson v. Johns-Manville Sales Corp.
Larson v. Johns-Manville Sales Corp.
Opinion of the Court
These four asbestos-related products liability cases were consolidated for hearing
These four product liability actions are identical in most significant respects. Each case is a wrongful death action brought by the personal representative of the estate on behalf of the statutory beneficiaries due to the death of the decedent from an asbestos-related disease or diseases. No personal injury actions were filed in any of these cases prior to the deaths of the decedents. The decedent in each case was an insulation worker, exposed to asbestos either by directly handling asbestos-containing insulation products manufactured by the various defendants or by proximity to these products while they were being handled and used by fellow workers.
Each complaint contends that the decedent was exposed while employed as an insulator at various times: George Glazier during the years 1937-1972; Leeman G. Revard during 1948-1970; Lawrence E. Larson from 1945-1972, and Lawrence Brimmer from 1951-1969. In each of the four cases it was alleged that the decedent had, prior to death, contracted the disease asbestosis, which either caused the decedent’s death or was a contributing cause of his death.
Asbestosis is a non-carcinogenic disease process caused by inhalation of asbestos fibers and is characterized by a long latency period between exposure and apparent effect. Asbestosis is dictionary defined
Regardless of the diseases involved, the four wrongful death complaints contain identical liability allegations as well as claims for relief. The plaintiffs filed liability claims based on negligence, breach of warranty, strict liability and gross negligence. The damages in each case were sought for the physical and mental pain and suffering suffered by the decedent, as well as damages for loss of earning capacity and medical, funeral and burial expenses incurred by the estate. Damages were also sought for the loss of consortium suffered by the widows and the sons and daughters of the decedents. In each case, jury trial was demanded.
In all four cases, defendants denied material allegations made in the complaints and raised various affirmative defenses. In each of the four cases the defendants alleged that the statute of limitations constituted a complete bar to the wrongful death actions. All parties engaged in considerable discovery in these four cases, after which motions for summary judgment were filed,
The crucial facts upon which the summary judgments were awarded are not in dispute. Defendants in all four cases argued that each of the four plaintiffs was diagnosed as having asbestosis more than three years prior to his death. Since no personal injury action was filed based on asbestosis prior to the death of each decedent, all defendants argued that subsequent wrongful death actions were time-barred regardless of whether or not they were filed on the basis of death due to asbestosis or due to a separate and distinct asbestos-related disease, namely, mesothelioma in the Glazier case and metastatic carcinoma of the lung in the Revard case.
In all four cases, plaintiffs admitted that personal injury causes of action due to asbestosis had accrued more than three years prior to the deaths of the decedents, and that no legal actions based upon asbestosis were ever filed during the lifetimes of the decedents. Thus, the personal injury actions for asbestosis were time-barred in all four cases prior to the deaths of the decedents. However, in all four cases, plaintiffs argued that the barring of the personal injury actions for asbestosis did not bar wrongful death actions brought on behalf of statutory beneficiaries who sought damages under the wrongful death act for deaths due to asbestosis or separate and distinct asbestos-related diseases.
The following are the relevant dates concerning the four cases:
Larson was diagnosed to have asbestosis no later
Brimmer knew that he had asbestosis no later than July 26, 1967, when he filed a worker’s compensation claim to recover for its disabling impact. Assuming that Brimmer’s personal injury action for asbestosis accrued at that time, his cause of action for asbestosis was time-barred on July 26, 1970. Brimmer died on April 14, 1978, and the complaint under the wrongful death act was filed January 10, 1980.
Revard knew that he had asbestosis no later than February 10, 1971. Assuming that Revard’s personal injury action for asbestosis accrued at that time, his action for asbestosis was time-barred on February 10, 1974. Revard was diagnosed as having bronchogenic cancer in approximately January, 1977. Revard died on July 6, 1977, and a wrongful death action based on his death due to asbestosis and metastatic carcinoma of the lung was filed on October 31, 1979.
Glazier discovered he had asbestosis no later than March 28, 1973, when he filed a worker’s compensation claim. Glazier was awarded workers’ compensation benefits for asbestosis in May, 1974. Assuming that Glazier’s cause of action for asbestosis accrued on March 28, 1973, his personal injury action was time-barred on March 28, 1976. Glazier died on November 1, 1977. The personal representative of Glazier’s estate suggests that the mesothelioma was discovered approximately ten
In the four cases, summary judgment was entered on the basis that a wrongful death action depended upon whether or not the decedent at the time of his death still could lawfully maintain a lifetime personal injury action for the underlying wrongful act or conduct upon which the wrongful death action would be based. The trial court held that the wrongful death action was not a new cause of action, but rather, was a substitution for whatever viable personal injury action still existed at the time of the decedent’s death. The trial court entered summary judgments in all four cases on the basis that the personal injury actions for asbestosis had not been initiated prior to death and were time-barred at the time of death. The trial court considered separate and distinct diseases, namely, lung cancer in Revard and mesothelioma in Glazier, as further complications of asbestos exposure and not of the disease asbestosis. Nevertheless, the trial court ruled that if a decedent had awareness of an asbestos-related injury or damages, but not necessarily the proper medical characterization of the disease or the full extent of the disease, and the disease was disabling, that point in time began the running of the period of limitation; and if no personal injury action was filed within three years, no later wrongful death action could be filed regardless of the cause of death.
On appeal, two issues are argued. First, appellants claim that the wrongful death act gives the personal representative of an estate a cause of action for damages grounded in products liability for causing the death of her husband where, at the time of his death, his cause of action for the same
In resolving this issue, we look first to the Michigan wrongful death act,
"(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.”
The wrongful death statute does not contain a limitation period, but MCL 600.5805; MSA 27A.5805, as amended by 1978 PA 495, § 1, reads as follows:
"(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the periods of time prescribed by this section.
"(8) The period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property.
"(9) The period of limitations is 3 years for a products*263 liability action. However, in the case of a product which has been in use for not less than 10 years, the plaintiff, in proving a prima facie case, shall be required to do so without benefit of any presumption.”
MCL 600.5827; MSA 27A.5827 provides that the period of limitation begins to run as follows:
"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
None of the parties disputes that the decedents had personal injury causes of action during their lifetimes against these defendants, which accrued when they were diagnosed as having asbestosis. In each case, this diagnosis occurred more than three years prior to the death of the decedent. No legal actions were ever filed during the lifetimes of the decedents seeking damages from these defendants for asbestosis. Plaintiffs concede that personal injury actions for asbestosis were time-barred during the lifetimes of the decedents. Yet, plaintiffs argue that the barring of a personal injury action for asbestosis does not bar a wrongful death action grounded upon asbestosis brought on behalf of statutory beneficiaries under the wrongful death act. In essense, plaintiffs argue that the wrongful death act confers an independent cause of action which can only accrue at the injured person’s death. Since each plaintiff in these four cases filed a complaint within three years after the date of her respective decedent’s death, the plaintiffs argue that their actions were not time-barred.
Recognizing that in Michigan wrongful death
In Hawkins, the Supreme Court said:
"Mr. Hawkins had a fully vested cause of action, if at all, on or about April 29, 1975, the date of the alleged wrongful act. He lived until January of 1976. His cause of action, if any, having accrued at the date of the wrongful act, the applicable limitations period began to run from that date.
"* * * * We agree and expressly hold that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act. * * *
"Additionally, we hold that actions brought pursuant to MCL 600.2922; MSA 27A.2922 accrue as provided by the statutory provisions governing the underlying liability theory and not at the date of death.”4
Applying Hawkins, we look to the wrongful act causing death, or injuries resulting in death, but not to the death itself. Under the statute, the liability of the tortfeasor exists where the deceased could have recovered if death had not ensued. Therefore, the cause of action accrues on the date of the wrongful act and the applicable limitation period begins to run from that date. The appropriate limitation period is governed by the provision applicable to the liability theory of the underlying wrongful act.
Since a decedent’s death does not create a new cause of action and any right of action for asbesto
In the instant case, as we have stated, the plaintiffs allege a wrongful death cause of action sounding in products liability. All four plaintiffs concede that the three-year period of limitation for products liability contained in MCL 600.5805(9); MSA 27A.5805(9) had run prior to commencement of their respective asbestosis claims. Applying the authorities referred to above, we conclude that the trial court was correct in awarding summary judgment in the four cases on these claims.
Second, plaintiffs claim that wrongful death actions based on the decedents’ deaths from asbestos-related cancer, which was diagnosed less than six months prior to the decedents’ death, may be brought even though no wrongful death action could have been filed if the decedent had died from asbestosis.
As previously indicated, the statute of limitations for products liability cases provides that a civil cause of action for damages for personal injuries must be filed within three years of the date it accrues or the cause of action is time-barred.
Previously, this Court has held that the so-called "discovery rule” was not applicable in wrongful death cases based in products liability.
Regarding diseases with a long development period, such as asbestosis, bronchogenic carcinoma, or mesothelioma, there are essentially three judicial points of view. With respect to when a period of limitation begins to run in cases seeking to recover damages from the development of such a latent industrial or occupational disease, Anno, 1 ALR4th 117, 120-121, summarizes as follows:
(1) The "general negligence” rule: The cause of action accrues, and the statute of limitation starts running, at the person’s initial exposure to the substance because the person has sustained an injury, and therefore all the elements of the cause of action are present. "The running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.”
(2) The "continuing negligence” rule: The statute of limitations starts running from the time of
(3) The "discovery” rule: The statute of limitations for latent industrial or occupational diseases starts running from the date of discovery or diagnosis of the disease.
In Michigan, we have not yet squarely addressed the issue of when a cause of action accrues in a situation where exposure to a substance at work results in a latent disease. We are constrained to hold that the statute which suggests that the plaintiffs cause of action accrues at the time of the wrongful act is controlling.
Plaintiffs argue, with some merit, that the present trend favors expansion of the statute of limitations to apply the so-called discovery rule to products liability cases.
See Stedman’s Medical Dictionary, 116, 990 (Third Unabridged Law Edition, 1972).
MCL 600.2922; MSA 27A.2922.
415 Mich 420; 329 NW2d 729 (1982).
Id., pp 436-437.
MCL 600.5827; MSA 27A.5827 states that:
“The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146; 200 NW2d 70 (1972).
Stoneman v Collier, 94 Mich App 187; 288 NW2d 405 (1979).
MCL 600.5827; MSA 27A.5827.
See Anno., 91 ALR3d 991; 1 ALR4th 117.
Concurring in Part
(concurring in part; dissenting in part). I concur in the result reached by the majority on plaintiffs’ wrongful death actions for death resulting from asbestosis. I agree with the majority that "any right of action for asbestosis against these defendants arose presumably when the decedents knew or should have known of their disease”, and that the running of the periods of limitation during the lifetimes of plaintiffs’ decedents bars plaintiffs’ statutory right as personal representatives to sue for wrongful death attributable to asbestosis.
I must, however, respectfully dissent from the subsequent portion of the majority opinion which appears to suggest that, for latent disease cases, "the cause of action accrues” (and the period of limitation begins to run) "at the time of the wrongful act”.
Since this opinion does not control the disposition of this action, an exhaustive analysis and review of authorities does not appear to be warranted. However, suffice it to note that both the Supreme Court and this Court have recognized and applied a discovery rule of accrual where an element of the cause of action has occurred but cannot be pled in a proper complaint because it is not, with reasonable diligence, discoverable until some time after it has occurred. See, e.g., Parish v B F Goodrich Co, 395 Mich 271, 280; 235 NW2d 570 (1975); Williams v Polgar, 391 Mich 6, 24-25; 215 NW2d 149 (1974); Bonney v The Upjohn Co, 129 Mich App 18, 23-24; 342 NW2d 551 (1983); Filcek v Utica Building Co, 131 Mich App 396; 345 NW2d 707 (1984). As Justice Brennan pointedly
It is my opinion that the claims of plaintiffs Revard and Glazier for wrongful death due to bronchogenic carcinoma and mesothelioma, respectively, are timely. The trial court found that bronchogenic carcinoma and mesothelioma were not complications of the disease of asbestosis. Rather, they were separate and distinct diseases resulting from asbestos exposure. Despite this finding, the majority has concluded that the diagnosis of the disease asbestosis started the clock running as to all of plaintiffs’ claims for damages resulting from exposure to asbestos, including future cancer. This
In Wilson v Johns-Manville Sales Corp, 221 US App DC 337; 684 F2d 111 (1982); Fearson v JohnsManville Sales Corp, 525 F Supp 671 (D DC, 1981); and Pierce v Johns-Manville Sales Corp, 296 Md 656; 464 A2d 1020 (1983), the courts comprehensively addressed this issue and, in each case, concluded that a diagnosis of asbestosis did not start the running of the period of limitation on a plaintiffs right to sue for mesothelioma or bronchogenic carcinoma, attributable to the same asbestos exposure, but not manifest until after a claim for asbestosis had become barred. In Fearson, supra, the Court observed:
"The plaintiffs illustration of this point by way of a hypothetical clarifies this reasoning. Suppose an individual takes a drug which causes a skin rash which disappears in a few days and no legal action is brought because of the minimal harm caused. Years later, the individual discovers that he or she has cancer which resulted from use of the same product. Under defendant’s theory, the failure to sue for the skin rash would bar the suit for cancer.” 525 F Supp 674, fn 4.
See also Jackson v Johns-Manville Sales Corp, 727 F2d 506 (CA 5, 1984).
In Funk v General Motors Corp, 392 Mich 91, 104; 220 NW2d 641 (1974), the Supreme Court stated that "[t]he policy behind the law of torts is more than compensation of victims. It seeks also to encourage implementation of reasonable safeguards against risks of injury.” The rule adopted by the majority does not advance either of these
Reference
- Full Case Name
- Larson v. Johns-Manville Sales Corporation; Revard v. Johns-Manville Sales Corporation; Brimmer v. Johns-Manville Sales Corporation; Glazier v. Fibreboard Corporation
- Cited By
- 12 cases
- Status
- Published