Angle v. Koppers, Inc., No. 2008-CA-02045-SCT (Miss. 5/27/2010)
| Decision Date | 27 May 2010 |
| Docket Number | No. 2008-CA-02045-SCT.,2008-CA-02045-SCT. |
| 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 |
¶ 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)
a) Residence address Time period of 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 2001
of the breast
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.
¶ 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.
¶ 8. This Court must first determine whether Mississippi Code Section 15-1-35 governs the intentional-tort claim. Section 15-1-35 provides that:
All actions for assault, assault and battery, maiming, false imprisonment, malicious arrest, or menace, and all actions for slanderous words concerning the person or title, for failure to employ, and for libels, shall be commenced within one (1) year next after the cause of action accrued, and not after.
Miss. Code Ann. § 15-1-35 (Rev. 2003). We find that the plain language of the statute does not cover an intentional tort for failing to investigate and remediate contamination of property. Furthermore, this averment of an intentional tort is not "substantially like" the "enumerated eight" torts of Section 15-1-35. See City of Mound Bayou v. Johnson, 562 So. 2d 1212, 1218 (Miss. 1990). Therefore, we find that the trial court did not err in finding Section 15-1-35 to be inapplicable.
¶ 9. The parties do not dispute that Mississippi Code Section 15-1-49(2) applies to all claims in the event that Section 15-1-35 does not govern the intentional tort-claim. Section 15-1-49 provides, in relevant part, that:
(1) All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of action accrued, and not after.
(2) In actions for which no other period of limitation is prescribed and which involve latent injury or disease, the cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence should have discovered, the injury.
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