Anderson v. Metalclad Insulation Corp.
| Decision Date | 19 May 1999 |
| Docket Number | No. A082253,A082253 |
| Citation | 72 Cal.App.4th 284,85 Cal.Rptr.2d 331 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , Prod.Liab.Rep. (CCH) P 15,523, 99 Cal. Daily Op. Serv. 3743, 1999 Daily Journal D.A.R. 4757 Warren L. ANDERSON, Jr., Plaintiff and Appellant, v. METALCLAD INSULATION CORPORATION, Defendant and Respondent. |
Brayton, Harley, Curtis, Philip A. Harley, Novato, James L. Oberman, Hercules, for Appellant.
Misciagna & Colombatto, San Francisco, P. Richard Colombatto, Michael K. Tcheng, San Francisco, for Respondent.
Warren L. Anderson, Jr., appeals from a judgment entered in favor of Metalclad Insulation Corporation (Metalclad) after the court granted Metalclad's motion for summary judgment on the ground that Anderson's complaint seeking recovery for asbestos related injury was filed after the limitations period specified in Code of Civil Procedure section 340.2. 1
Anderson contends that the court erred in shifting the burden to Anderson to submit evidence that he was not disabled, because the evidence Metalclad submitted was insufficient to support the inference that Anderson was disabled, as that term is defined in section 340.2, more than one year before the complaint was filed. We agree, and shall reverse the judgment.
Anderson filed his complaint against Metalclad and numerous other defendants, on June 14, 1996. The complaint alleged that Anderson's exposure to asbestos and asbestos containing products, caused severe and permanent injury including breathing difficulties, asbestosis, and other lung damage, and increased risk and fear of developing mesothelioma, lung cancer and other cancers. Anderson was diagnosed with asbestos related pleural disease in September of 1995. The complaint further alleged that his injuries occurred at various locations and times, including service in the Army from 1963-1966, and during his employment as an insulator and welder at Southern California Edison Company which continued from 1966 through the date of filing of the complaint.
Metalclad answered the complaint, and raised as one of its affirmative defenses that the complaint was "barred by the applicable statutes of limitation."
On November 6, 1997, Metalclad filed its motion for summary judgment. Metalclad argued, in reliance upon Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 356, 47 Cal.Rptr.2d 580, and Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038, 1049-1053, 67 Cal.Rptr.2d 494, that the filing of a claim for workers' compensation benefits in February 1995 was analogous to filing a personal injury lawsuit based upon an injury caused by asbestos. It asserted that Anderson, by filing the claim for workers' compensation, had waived the statutory option of waiting to file suit until he was disabled as defined in section 340.2, and triggered the one-year limitations period.
The motion was based upon evidence that Anderson, in February 1995, filed a claim for workers' compensation benefits against his employer, Southern California Edison, describing his injury as "asbestosis." Metalclad also submitted Anderson's application to the Workers' Compensation Appeals Board (WCAB) for adjudication of claim, dated April 17, 1995. The application was filed because of a disagreement regarding liability for "Temporary" or "Permanent disability," reimbursement for medical expenses and treatment, compensation, and rehabilitation. In response to a question asking the applicant to describe the disability caused by the injury, including specifying the last day off work, and beginning and ending dates of all periods off due to this injury, Anderson stated "unknown." The application also stated that he had not received any employment insurance or disability benefits, and no medical treatment for the injury. Finally, Metalclad submitted Anderson's answer to interrogatory No. 44, stating that Anderson had filed a claim for workers' compensation benefits in 1995. Although Metalclad did not include the interrogatory, it also submitted his answer to interrogatory No. 39, in which Anderson stated:
Anderson did not dispute any of Metalclad's asserted undisputed facts. Instead, Anderson asserted that, as a matter of law, these facts did not establish that the statute of limitations had been triggered in either February or April 1995. Anderson contended that filing a workers' compensation claim does not constitute a first lawsuit waiving the benefit of the longer limitations period, and that section 340.2 subdivision (a) permitted him to wait until he was disabled before filing a personal injury lawsuit. He also submitted his own separate statement of undisputed facts, citing his own response to an interrogatory, apparently asserting that he was still employed full-time at the time of filing the complaint.
At the hearing on the motion, the court rejected Metalclad's contention based upon Darden and Barr, that filing a workers' compensation claim constituted a "first lawsuit" triggering the one-year limitations period. Although Metalclad had never advanced the argument in its moving papers, the court suggested that the undisputed fact that Anderson had filed a workers' compensation claim for temporary and permanent disability benefits, was sufficient evidence that he was disabled within the meaning of section 340.2 subdivision (b) to shift the burden to Anderson to come forward with some evidence that he was not disabled. The court rejected Anderson's counsel's argument that filing a claim for workers' compensation disability benefits could not by itself support the inference that the employee was disabled within the meaning of section 340.2 subdivision (b), because an employee can be eligible for workers' compensation benefits, without being permanently precluded from performing his or her regular occupation. The court did note that Anderson's interrogatory answer stated he was not disabled, and continued to work until he filed the complaint. The court made no formal ruling on the admissibility of the interrogatory answer, but adopted its tentative ruling granting Metalclad's motion for summary judgment.
Anderson moved for a new trial, and to vacate the prior order. The motion to vacate the order granting summary judgment was based upon his assertion that the failure to submit Anderson's declaration that he had not lost any work time for the injury described in his workers' compensation claim, instead of the interrogatory response, was due to his counsel's mistake, inadvertence, and excusable neglect. Anderson submitted, among other things, his declaration that he was employed by Southern California Edison Company from 1966 until his retirement on July 1, 1996, that his retirement was not a disability retirement, and that when he filed his workers' compensation claim in 1995, he was working full-time as a welding instructor. The court observed that had the declaration been submitted in Anderson's opposition, the court might have denied the motion for summary judgment, but Anderson's counsel failed to explain why he could not have submitted it at that time. The court denied these motions on February 25, 1998. 2
The court entered judgment in favor of Metalclad on January 21, 1998, and notice of entry was served on March 3, 1998. Anderson filed a timely notice of appeal on March 11, 1998.
Metalclad's motion for summary judgment was based upon the contention that the undisputed facts that Anderson had filed a workers' compensation claim describing his injury as "asbestosis" in February 1995, and an application for adjudication of that claim in April 1995, established its affirmative defense that his complaint was filed after the limitations period set forth in section 340.2 expired.
A defendant moving for summary judgment must show either, (1) that one or more elements of the plaintiff's cause of action cannot be established "or [ (2) ] that there is a complete defense to that cause of action." (§ 437c, subd. (o)(2), italics added.) The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is heavier than the burden to show one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence, such as vague or insufficient discovery responses, that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case (see Certain Underwriters at Lloyd's of London v. Superior Court (1997) 56 Cal.App.4th 952, 958-959, 65 Cal.Rptr.2d 821), "the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense" (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 858, 62 Cal.Rptr.2d 16, italics added; accord, Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830-831, 20 Cal.Rptr.2d 296). The defendant must demonstrate that under no hypothesis is there a material factual issue requiring trial. (Shapiro v. Sutherland (1998) 64 Cal.App.4th 1534, 1543, 76 Cal.Rptr.2d 101.) If the defendant does not meet this burden, the motion must be denied. Only if the defendant meets this burden, does "the burden shift[ ] to plaintiff to show an issue of fact concerning at least one element of the defense." (Bacon v. Southern Cal. Edison Co., supra, at p. 858, 62 Cal.Rptr.2d 16.)
Section 340.2 provides, in part:
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