Adams v. Armstrong World Industries, Inc., Civ. No. 80-4161.

• Decision Date: 01 November 1984
• Docket Number: Civ. No. 80-4161.
• Citation: 596 F. Supp. 1407
• Parties: Mary G. ADAMS, surviving widow of Frank Herbert Adams, Frankie Adams and Fred M. Adams, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC.; Celotex Corporation; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Forty-Eight Insulation, Inc.; Johns-Manville Sales Corporation; Nicolet Industries, Inc.; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Pittsburgh Corning Corporation; GAF Corporation; Standard Asbestos Manufacturing and Insulating Company; Unarco Industries, Inc., Defendants.
• Court: U.S. District Court — District of Idaho

596 F. Supp. 1407

Mary G. ADAMS, surviving widow of Frank Herbert Adams, Frankie Adams and Fred M. Adams, Plaintiffs, v. ARMSTRONG WORLD INDUSTRIES, INC.; Celotex Corporation; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Forty-Eight Insulation, Inc.; Johns-Manville Sales Corporation; Nicolet Industries, Inc.; Owens-Illinois, Inc.; Owens-Corning Fiberglas Corporation; Pittsburgh Corning Corporation; GAF Corporation; Standard Asbestos Manufacturing and Insulating Company; Unarco Industries, Inc., Defendants.

Civ. No. 80-4161.

United States District Court, D. Idaho.

November 1, 1984.

Clark Gasser, Steve Richert, Green, Service, Gasser & Kerl, Pocatello, Idaho, Russell W. Budd, Frederick M. Baron & Associates, P.C., Dallas, Tex., for plaintiffs.

John L. King, Boise, Idaho, Richard B. Evans, Sarah B. Howden, Gudmundson, Siggins & Stone, San Francisco, Cal., for Armstrong World Industries, Inc.

Gary T. Dance, N. Randy Smith, Merrill & Merrill, Chartered, Pocatello, Idaho, for Celotex Corp.

Charles Johnson III, L. Charles Johnson, Johnson & Olson, Chartered, Pocatello, Idaho, for Crown Cork & Seal Co., Inc.

Christopher Burke, Clemons, Cosho & Humphrey, Boise, Idaho, Donald J. Roberts, Gabriel A. Jackson, Winingham, Roberts, Rogie & Fama, San Francisco, Cal., for Eagle-Picher Industries, Inc.

Jeremiah A. Quane, Alan Hull, Jon Carter, Quane, Smith, Howard & Hull, Boise, Idaho, for Fibreboard Corp.

Louis F. Racine, Jr., Gary L. Cooper, Racine, Olson, Nye, Cooper & Budge, Chartered, Pocatello, Idaho, for Forty-Eight Insulations, Inc.

Allen B. Ellis, Jon M. Steele, Ellis, Brown, Sheils & Steele, Boise, Idaho, for Keene Corp.

Ron B. Rock, Robert C. Grisham, Moffatt, Thomas, Barrett & Blanton, Chartered, Boise, Idaho, for Nicolet, Inc.

Craig L. Meadows, Wayne B. Slaughter, Edwin V. Apel, Jr., Hawley, Troxell, Ennis & Hawley, Boise, Idaho, for GAF Corp.

Carl P. Burke, Charles L. Hay, Elam, Burke, Evans, Boyd & Koontz, Boise, Idaho, for Owens-Illinois, Inc.

Ronald P. Rainey, David E. Kerrick, Alexanderson, Davis, Rainey, Whitney & Kerrick, Caldwell, Idaho, for Pittsburgh Corning Corp.

Steven R. Matthews, Brady, McDaniel & Matthews, Chartered, Boise, Idaho, for Raymark Industries, Inc.

J. Frederick Mack, Langroise, Sullivan & Smylie, Boise, Idaho, for Standard Insulations, Inc.

MEMORANDUM DECISION

CALLISTER, Chief Judge.

Before the Court are the defendants' motions for summary judgment based on the running of the statute of limitations and failure of a condition precedent to a wrongful death action. This is a wrongful death/products liability action brought by Mary G. Adams, Frankie Adams, and Fred M. Adams, the surviving widow and heirs of Frank H. Adams, deceased, against thirteen asbestos manufacturers. The plaintiffs' complaint is premised upon the three basic products liability theories, breach of implied warranty, negligence, and strict liability in tort. Jurisdiction is based on diversity.

The deceased was employed from 1940 to 1979 as an insulation worker. From 1966 to 1979 he was employed by Waters Asbestos Company (Waters) and installed insulation products purchased solely by Waters. As an insulation worker, the deceased handled and was exposed to large quantities of asbestos-containing products allegedly manufactured and distributed by the defendant asbestos companies.

It is undisputed that none of Waters' employees, including the deceased, installed asbestos-containing products after 1973. In addition, none of the defendants manufactured or distributed asbestos-containing products after 1975. The plaintiffs do not dispute in their brief, nor did they dispute in oral argument, that the deceased's last exposure to asbestos occurred well over two years before the deceased was diagnosed as having asbestosis and lung cancer (May 1979), and the date of the deceased's death (August 17, 1979). This action was filed December 12, 1980.

All of the defendants have moved for summary judgment in this case based on the running of the statute of limitations and consequent failure of a condition precedent to the plaintiffs' wrongful death action.

This Court is aware that summary judgment may be granted only where there is no genuine dispute as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56. The defendants' asserted basis for summary judgment in the present case may be summarized as follows: The plaintiffs, as the deceased's heirs, are precluded from bringing this action because the deceased's cause of action, as of the date of his death, was barred by the statute of limitations. The defendants contend that a condition precedent to any wrongful death action brought in Idaho is that a deceased be able to maintain an action as of the date of his death.

Thus, the initial inquiry involves the pertinent statute of limitations and its application to the facts in the present case. Section 6-1403(3) of the Idaho Products Liability Reform Act¹ Idaho Code §§ 6-1401 et seq., provides that no products liability claim "may be brought more than two (2) years from the time that the cause of action accrues as defined in § 5-219, Idaho Code." All parties to this dispute agree that Idaho Code § 5-219(4) is controlling in the present case.

Section 5-219(4) is Idaho's general personal injury/wrongful death statute of limitations. It provides that in all cases except medical malpractice actions involving foreign objects left in the body or the fraudulent concealment of professional malpractice, an action accrues "as of the time of the occurrence, act or omission complained of," and that the action must be brought within two years from the date on which it accrues.

The defendants contend that the deceased's cause of action accrued upon his last exposure to asbestos, which, construing the facts most favorably to the plaintiffs, was sometime in 1973-75. The defendants contend that the language of § 5-219(4) is clear in its meaning and intent and provides no discovery exception. Therefore, the defendants argue that as of the time of his death, the deceased's cause of action was time-barred.

Plaintiffs contend that the Idaho courts would, and should, adopt a discovery rule as to latent diseases such as asbestosis. They argue that the statute of limitations should not begin to run in asbestos cases until a person discovers the disease or should have discovered it in the exercise of reasonable care. While agreeing that Idaho Code § 5-219(4) governs this action, they contend that the Idaho courts would imply a discovery exception for asbestos cases in addition to the two exceptions already contained in § 5-219(4). Plaintiffs argue in the alternative that the key language in § 5-219(4), the "occurrence, act or omission complained of," refers, in asbestos cases, to the time in which the disease is diagnosed. As support for this proposition, the plaintiffs cite a series of Connecticut cases. Plaintiffs argue that as a matter of policy it is unfair to bar an action before the aggrieved party is even aware of the cause of action.

This Court is compelled, although not without struggle, to reject the plaintiffs' contentions. The Court finds that § 5-219(4) contains no discovery rule for latent diseases such as asbestosis. This finding is mandated by the decisions of the Idaho Supreme Court and by the clear expression of intent from the Idaho legislature. The legislative and judicial history behind § 5-219(4) are significant in the present case. In that history, the year 1971 is important. In 1971, the Idaho legislature amended § 5-219(4) to include two discovery exceptions. Prior to 1971, on at least two occasions the Idaho Supreme Court created a discovery exception to the version of § 5-219(4) which existed at that time. The first was Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224 (1964). In that case the Idaho Supreme Court adopted the discovery rule for situations where a physician left a foreign object in the patient's body. Later, in Renner v. Edwards, 93 Idaho 836, 475 P.2d 530 (1969), the court extended the discovery rule to cover medical misdiagnosis. In response to the argument that the extension of the Billings discovery rule "should be left to the legislature," the court stated:

Our legislature did not define the time of accrual as being either the time of the performance of the negligent act or the time of the acquisition of knowledge of the negligent act. That was done by this court. To adopt the "discovery rule" is to imply the existence of knowledge as a requirement for the accrual of an action and thus supply knowledge as a statutory requirement. Conversely, to reject the rule is to imply that the legislature consider the requirement of knowledge as an element of accrual and deliberately excluded such terminology from the statute. Legislative inaction should not be ignored in determining legislative intent, but to imply such an intent in this case as a result of legislative inaction is unreasonable. At the moment, our statutes, as most others across this country, are silent as to the interrelationship between "knowledge" and "accrual." We are required to reach a decision without assistance from our legislative brethren.

Renner, supra, 93 Idaho at 840, 475 P.2d at 534 (emphasis added).

Shortly after the Renner case was decided, the 1971 Idaho legislature acted to provide the guidance which the Renner court had stated was lacking by amending Idaho Code § 5-219(4). This amendment created two discovery exceptions, one for the leaving of a foreign object in a body (codifying the Billings holding), the other for fraudulent concealment of a wrongful or negligent act of professional malpractice. The Renner discovery rule was not adopted. For cases falling outside these two express exceptions, the amended version of § 5-219(4) provides:

In all other actions, whether arising from professional malpractice or otherwise, the cause of action

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