Barr v. ACandS, Inc.

• Decision Date: 19 September 1997
• Docket Number: A073961,Nos. A074293,A076612,s. A074293
• Citation: 57 Cal.App.4th 1038,67 Cal.Rptr.2d 494
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 15,082, 97 Cal. Daily Op. Serv. 7524, 97 Daily Journal D.A.R. 12,093 Elbert L. BARR, Plaintiff and Appellant, v. ACandS, INC., Defendant and Respondent. Laurence WILLS et al., Plaintiffs and Appellants, v. ALTA BUILDING MATERIALS CO. et al., Defendants and Respondents. Darwyn BAESMAN, Plaintiff and Appellant, v. EXXON CORPORATION, Defendant and Respondent.

Page 494

67 Cal.Rptr.2d 494

57 Cal.App.4th 1038, Prod.Liab.Rep. (CCH) P 15,082,

97 Cal. Daily Op. Serv. 7524,

97 Daily Journal D.A.R. 12,093

Elbert L. BARR, Plaintiff and Appellant, v. ACandS, INC., Defendant and Respondent.

Laurence WILLS et al., Plaintiffs and Appellants, v. ALTA BUILDING MATERIALS CO. et al., Defendants and Respondents.

Darwyn BAESMAN, Plaintiff and Appellant, v. EXXON CORPORATION, Defendant and Respondent.

Nos. A074293, A073961, A076612.

Court of Appeal, First District, Division 2, California.

Sept. 19, 1997.

Review Denied Dec. 23, 1997. ^*

Brayton, Harley Curtis, Novato, James L. Oberman, Hercules, Philip A. Harley (for Baesman only), Bryce C. Anderson, Law Office of Bryce C. Anderson, for Plaintiffs and Appellants.

M. Armon Cooper, Raymond L. Gill, St. Peter & Cooper, LLP, San Francisco, for ACandS, Inc.

Gabriel A. Jackson, Peter K. Renstrom, Jackson & Wallace, San Francisco, for Alta Building Materials Co.

Patrick J. Hagan, Edward E. Hartley, Michael Y. Lateef, Dillingham & Murphy, for San Francisco, Kaiser Cement Corporation.

Marvin A. Jacobs, Mark B. Jacobs, Jacobs Associates, San Francisco, for Exxon Corporation.

RUVOLO, Associate Justice.

INTRODUCTION

Appellants in these three consolidated cases appeal judgments entered in favor of respondents. Relying principally on Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ), the trial courts determined as matters of law that appellants' claims arising out of occupational exposure to asbestos were barred by the statute of limitations set forth in CODE OF CIVIL PROCEDURE SECTION 340.2¹ as a result of the filing of prior suits involving the same exposure. Appellants contend Darden was wrongly decided or is inapplicable to their respective cases. For the reasons stated in this opinion, we affirm all three judgments.

PROCEDURAL AND FACTUAL BACKGROUND

Because these appeals concern three separate cases, the facts of each deemed pertinent to our determination are set out individually below.

Barr v. ACandS, Inc.

Appellant Elbert L. Barr worked as a hod carrier for 20 years at various industrial sites throughout the Bay Area. While so employed, he worked with and around asbestos-containing materials.

On January 16, 1986, Barr filed an action for personal injuries in Alameda County Superior Court against numerous defendants including respondent ACandS, Inc. (AC & S). In his complaint, Barr alleged he sustained personal injuries as a result of chronic occupational exposure to asbestos and that each of the defendants was legally responsible for his injuries by virtue of its participation in placing these products in the stream of commerce. Barr claimed this exposure "caused [him] severe and permanent injury ... including, but not limited to, breathing difficulties, asbestosis, and/or other lung damages, and increased risk and fear of developing mesothelioma, lung cancer, and various other cancers." Barr alleged further that he was diagnosed with asbestos-related illness on or before October 22, 1985, and "disability within the meaning of [section] 340.2 either had yet to occur or occurred less than a year before the filing of this complaint."

AC & S was served with a summons and complaint, and filed its answer on June 13, 1986.

A trial setting conference was set for March 10, 1987, but Barr's counsel failed to appear and the case was ordered dropped from the "civil active list." Four years and six months after filing the complaint, Barr voluntarily dismissed his action without prejudice on June 11, 1990, "as to all remaining defendants; each side to bear its own costs."

On September 5, 1995, Barr filed a second action in San Francisco Superior Court out of which this appeal arises. This complaint once again sought personal injury damages resulting from Barr's chronic occupational exposure to asbestos products and materials. In addition to naming defendants who participated in the chain of manufacturing and sale of asbestos products, including AC & S, Barr added a premises liability cause of action against entities on whose property he was allegedly exposed to asbestos. Barr alleged precisely the same injuries and damages described in his first action, however, he claimed in the second action he was diagnosed with asbestosis and related illnesses "on or about February 1987." Barr further alleged he became disabled from his last place of employment for reasons other than any relating to his asbestos-related disease, and "[h]e has therefore suffered no disability from his asbestos-related disease as 'disability' is defined in [section] 340.2."

AC & S filed its answer on October 27, 1995. A motion for summary judgment was filed by AC & S on February 7, 1996. The sole ground for the motion was that Barr's second suit was barred by the statute of limitations provided in section 340.2, in accordance with the decision of Division Four of this District in Darden, supra, 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580.

Barr's opposition included a declaration from attorney Jack Clapper, who had represented Barr in the earlier action. In his declaration, Mr. Clapper explained that in the 1980's, during which he had represented hundreds of plaintiffs seeking damages for asbestos-related disease, it was "frequent[ly]" proposed by defendants in cases involving "marginally impaired plaintiff[s]" that they dismiss their lawsuits with the understanding that the dismissing plaintiffs could re-file in the event their asbestos-related disease process became more serious. In his declaration, Mr. Clapper further asserted that settlement judges suggested this procedure, and typically plaintiffs agreed to it rather than litigate and potentially recover only a nominal amount. He notes this was the "custom and practice" in asbestos litigation in "Northern California courts," and that all dismissals he negotiated under these circumstances were filed with the understanding they were without prejudice to the filing of a subsequent action if the respective plaintiff chose to do so. Mr. Clapper concluded that many of his clients, including appellant, dismissed their suits with the express understanding they could "re-file a lawsuit in the event their disease worsened."

The summary judgment motion was granted on March 11, 1996, at the conclusion of an oral hearing. The court found as a matter of law that the statute of limitations provided for in section 340.2 had commenced running when Barr's first suit was filed, and Barr was thus precluded from filing the instant action. It also found there was no triable issue of fact under a theory that AC & S was estopped from asserting the limitations bar.

Wills v. Alta Building Materials Co. and Kaiser Cement Corporation

Laurence and Thelma Wills (Wills) filed an action for asbestos-related personal injuries on March 27, 1986, in San Francisco Superior Court. Their suit named multiple defendants including respondent Kaiser Cement Corporation (Kaiser). The 1986 complaint alleged that Wills's "disability within the meaning of [section] 340.2 either had yet to occur or occurred less than a year before the filing of this complaint." This suit was pursued for approximately two years and was settled as to some defendants. Wills voluntarily dismissed their action against Kaiser without prejudice in July 1988 in exchange for Kaiser's waiver of costs.

On December 16, 1993, Wills filed a second action. This complaint alleged the same injuries and damages against both Kaiser and Alta Building Materials Co. (Alta), which was named as a defendant in the second suit, but not the first.

After the Court of Appeal decision in Darden, both Kaiser and Alta brought motions in limine to bifurcate trial under section 597 and to dismiss Wills's actions on the ground that they were barred by the statute of limitations. Wills argued in opposition that respondents were equitably estopped from asserting a statute of limitations defense. ² Opposition included declarations by attorneys Jack Clapper and Alan Brayton containing averments nearly identical to those detailed above in connection with the motion for summary judgment in Barr. The trial court rejected Wills's arguments and decided as a matter of law that section 340.2 had commenced when Wills's first suit was

filed. The motions were granted, and judgments of dismissal were entered in favor of Kaiser and Alta.

Baesman v. Exxon Corporation

Darwyn Baesman filed his first lawsuit (Baesman I) on December 15, 1993. One of the locations identified in the Baesman I complaint at which Baesman claimed to have been exposed to asbestos was the Humble Oil Refinery in Benicia, California. Baesman identified his employer at the time as Chicago Bridge & Iron Company, and the time period during which he may have worked at the Humble Oil Refinery as between 1964 and 1973. Although the refinery's name was changed from Humble Oil to Exxon long before the complaint in Baesman I was filed, Exxon was not named nor served as a fictitious defendant in Baesman I. At the time of oral argument, Baesman I was still pending.

The second lawsuit (Baesman II) was filed on May 17, 1996. Baesman II alleged five causes of action based on the same alleged exposure to asbestos and asbestos-containing products as Baesman I. Baesman again identified the Humble Oil Refinery site as one of the locations at which he was exposed to asbestos between 1964 and 1973. However, based on these same site allegations, Baesman this time named respondent Exxon Corporation (Exxon) as a defendant and on May 31, 1996, Exxon was served with the complaint.

Exxon filed a motion for summary judgment, again arguing the one-year limitations period of section 340.2 started to run, at the latest, upon commencement of Baesman I. Therefore, since Baesman II was filed almost three years after Baesman I, the limitations period had indisputably expired and the Baesman I action against Exxon must be dismissed.

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