ANGLE v. KOPPERS Inc. f/k/a Koppers Indus. INC., 2008-CA-02045-SCT.

• Decision Date: 19 August 2010
• Docket Number: No. 2008-CA-02045-SCT.,2008-CA-02045-SCT.
• Citation: 42 So.3d 1
• Parties: Rebekah ANGLE v. KOPPERS, INC. f/k/a Koppers Industries, Inc., and Illinois Central Railroad Company, Beazer East, Inc., and Three Rivers Management, Inc.
• Court: Mississippi Supreme Court

42 So.3d 1

Rebekah ANGLE v. KOPPERS, INC. f/k/a Koppers Industries, Inc., and Illinois Central Railroad Company, Beazer East, Inc., and Three Rivers Management, Inc.

No. 2008-CA-02045-SCT.

Supreme Court of Mississippi.

May 27, 2010.

Rehearing Denied August 19, 2010.

COPYRIGHT MATERIAL OMITTED.

Elizabeth Unger Carlyle, Hunter W. Lundy, Andre F. Ducote, J.P. Hughes, Jr., Carter C. Hitt, attorneys for appellant.

Christopher A. Shapely, Robert L. Gibbs, William `Trey' Jones, III, Joseph Anthony Sclafani, Jay Gore, III, Reuben V. Anderson, Glenn F. Beckham, attorneys for appellees.

EN BANC.

LAMAR, Justice, for the Court:

¶ 1. In this toxic-tort case,¹ Rebekah Angle asserts various state-law claims for injuries she suffered from 1984 to 2001. Finding these claims time-barred, the trial court granted summary judgment in favor of the Defendants. Angle has timely appealed to this Court, asserting two theories in support of her argument that her claims are not time-barred: (1) the three-year statute of limitations under Mississippi Code Section 15-1-49 begins to run upon discovery of the cause of the action; and alternatively, that (2) the federal discovery rule in 42 U.S.Code Section 9658 preempts Section 15-1-49.

FACTS

¶ 2. On March 17, 2006, Angle filed a complaint against Koppers Inc., Beazer East, Inc., Three Rivers Management, Inc., and Illinois Central Railroad Company ("Defendants").² Angle claims that she was exposed to harmful levels of toxic chemicals, including creosote and pentachlorophenol, that were released into the environment from railroad tank cars and trucks and from a wood-treatment facility. Angle avers that "she lived at locations within close proximity" to the treatment facility, and that she suffered injuries to her person and property through:

offsite migrations of wood-preservative liquids resulting from the wood treatment processes used by Koppers at the Plant; offsite migrations of vapors and gases of chemicals of concern at elevated temperatures; offsite migrations of soot, products and by-products of combustion resulting from onsite fires and burning operations; and, offsite migrations of aerosol droplets containing dissolved concentrations of the referenced chemicals of concern from a variety of onsite process operations.

Angle also avers that there were "uncontrolled releases" of waste liquids into the surface water and groundwater. Angle seeks damages under theories of negligence, gross negligence, negligence per se, intentional tort,³ conspiracy, private conspiracy under 42 U.S.Code Section 1985(3), strict liability, trespass, private nuisance, and failure to warn.

¶ 3. Pursuant to a court order requiring Angle to provide a more definite statement, Angle submitted additional information concerning her alleged exposure and injuries. She stated the following:

2) Plaintiff was exposed to harmful chemicals from the Grenada wood treatment facility through the following (with dates):

Time period a) Residence addressof residence 2627 Jackson Avenue 1994-2005 85 Mimosa Drive 2005-present

b) From 1972-1992 Plaintiff worked at Tie Plant Elementary.

c) From 1990-1991 Plaintiff walked through the Grenada wood treatment facility.

d) In 1980 treated wood from Koppers was brought into Plaintiff's home.

3) As a result of exposure to harmful chemicals from the Grenada wood treatment facility, Plaintiff has suffered:

Illness Date of Diagnosis Infiltrating ductal carcinoma of the breast 2001 Ovarian cysts 1999 DNC [sic] 1990 Hysterectomy 1994 Ovaries removed 2000 Lumpectomy 2001 Skin rashes 2000 Headaches 1984

¶ 4. Upon receipt of this information, Defendants moved for summary judgment based on the statute of limitations. Defendants argued that all of Angle's illnesses were diagnosed no later than 2001, approximately five years before Angle filed her complaint. Defendants further argued that the statute of limitations for latent injuries accrues when the illness is diagnosed, and as such, Angle's claims were time-barred under Sections 15-1-49 and 15-1-35 of the Mississippi Code. See Miss. Code Ann. §§ 15-1-49, 15-1-35 (Rev. 2003). In response, Angle relied upon the district court's decision in Beck v. Koppers, Inc., 2005 WL 2715910 (N.D.Miss. Oct. 21, 2005), overruled by Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357 (5th Cir. 2008), to argue that the statute of limitations for all claims did not begin to run until she knew of her injury and its cause. Angle did not assert when or how she discovered the connection between her injuries and creosote and pentachlorophenol. Defendants filed a rebuttal in which they asserted that cause and causative relationship were not applicable factors under Section 15-1-49, and that Angle had failed to plead a CERCLA⁴ cause of action.⁵ Defendants further argued that the application of CERCLA would be an unconstitutional violation of the Commerce Clause and the Tenth Amendment.

¶ 5. Without oral argument, the trial court issued an opinion in support of its final judgment granting Defendants' motion for summary judgment. The trial court found that Mississippi Code Section 15-1-35 was inapplicable, since Angle's intentional-tort claim was not listed in that code section. See Miss.Code Ann. § 15-1-35 (Rev.2003). The court found that all of Angle's claims were governed by Mississippi Code Section 15-1-49 and were time-barred. See Miss.Code Ann. § 15-1-49 (Rev.2003). The trial court applied this Court's caselaw⁶ and the Fifth Circuit's decision in Barnes ex rel. Barnes v. Koppers, Inc., 534 F.3d 357 (5th Cir.2008), and found that the statute of limitations began to run on Angle's cause of action "when she had knowledge of her headaches, DNC [sic], hysterectomy, ovarian cysts, removal of ovaries, skin rashes, lumpectomy, and infiltrating ductal carcinoma of the breast, not when she had knowledge of these injuries, illnesses ... and their cause." The trial court also found that Angle, like the plaintiff in Barnes ex rel. Barnes, had failed to offer sufficient proof that 42 U.S.Code Section 9658 preempts Section 15-1-49.

DISCUSSION

¶ 6. "This Court conducts a de novo review of orders granting or denying summary judgment and looks at all the evidentiary matters before it—admissions in pleadings, answers to interrogatories, depositions, affidavits, etc." McClinton v. Delta Pride Catfish, Inc., 792 So.2d 968, 972 (Miss.2001). The moving party "bears the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to judgment as a matter of law." Palmer v. Biloxi Reg'l Med. Ctr., Inc., 564 So.2d 1346, 1355 (Miss. 1990). However, the movant bears the burden of production if, at trial, he would have the burden of proof on that issue. Webster v. Miss. Publishers Corp., 571 So.2d 946, 949 (Miss.1990). Furthermore, the nonmoving party cannot survive a motion for summary judgment by relying on a "[m]ere allegation or denial of material fact." Palmer, 564 So.2d at 1356. In other words, "the plaintiff may not rely solely upon unsworn allegations in the pleadings, or `arguments and assertions in briefs or legal memoranda.'" Id. (quoting Magee v. Transcontinental Gas Pipe Line Corp., 551 So.2d 182, 186 (Miss.1989)). Last, the court views the evidence in the light most favorable to the nonmoving party. Webster, 571 So.2d at 949.

I. WHETHER ANGLE'S CLAIMS ARE TIME-BARRED UNDER MISSISSIPPI LAW.

¶ 7. Angle asserts that the statute of limitations for all her asserted claims began to run when she discovered that her medical problems were the result of exposure to toxic chemicals. Conversely, Defendants argue, and the trial court agreed, that the statute of limitations began to run when Angle discovered or was diagnosed with her various illnesses and this should be taken into consideration when interpreting § 15-1-49 for purposes of accrual." Id. at 708. The Court concluded that a discovery rule did exist in conjunction with Section 15-1-49 and that "the discovery rule adopted is identical to the rule provided in Miss.Code Ann. § 15-1-49(2) (Supp.1990)."⁸Id. at 709. The Court held that the cause of action accrued and the limitations period began to run "when the plaintiff can reasonably be held to have knowledge of the injury or disease." Id. In dictum, the Court further stated that "[t]hough the cause of the injury and the causative relationship between the injury and the injurious act or product may also be ascertainable on this date, these factors are not applicable under § 15-1-49(2)[.]" Id. (emphasis added).

¶ 11. This Court applied Owens-Illinois, Inc. in Schiro v. American Tobacco Co., a case in which the plaintiff was diagnosed with cancer after many years of smoking. Schiro v. Am. Tobacco Co., 611 So.2d 962, 965 (Miss.1992). The plaintiff began smoking in 1943, quit in 1977, and was diagnosed with cancer in 1982. Id. The plaintiff filed suit in 1988. Id. Applying Owens-Illinois, Inc., the Court held that the "cause of action accrued on January 26, 1982, when the doctor diagnosed that the mass was cancerous[,] and as such, the action was not time-barred."⁹Id.

¶ 12. However, in Schiro, we confused the issue by proceeding in dictum to analyze the defendants' argument that the plaintiff should have filed suit within six years of 1981, when the plaintiff discovered a "mass." Id. The Court stated that, in 1981, the plaintiff "did not actually know that she had cancer, an injury connected with smoking. Thus, even if she had brought suit at this point, the claim would have been premature." Id. (emphasis added). We note that the proper inquiry under the statute should have been the plaintiff's discovery of the injury or disease, i.e., a diagnosis of cancer, not the discovery of a causative relationship between smoking and the cancer.

¶ 13. In PPG Architectural Finishes, Inc. v. Lowery, 909 So.2d 47 (Miss.2005), the plaintiff...