Bauer v. Johns-Manville Corp.
| Citation | 599 F. Supp. 33 |
| Decision Date | 07 June 1984 |
| Docket Number | No. H-80-668 Civil.,H-80-668 Civil. |
| Parties | Alta BAUER, Administratrix of the Estate of Royal C. Bauer, and Alta Bauer, Individually, v. JOHNS-MANVILLE CORPORATION, Et Al. |
| Court | U.S. District Court — District of Connecticut |
Stephen C. Embry, O'Brien, Shafner, Bartinik, Stuart & Kelly, Groton, Conn., for plaintiff.
Joseph Adinolfi, Jr., Joseph A. O'Brien, Hartford, Conn., for Celotex Corp.
Joseph P. Kenny, Kenny & Brimmer, Hartford, Conn., for Union Asbestos.
Patrick J. Flaherty, Cooney, Scully & Dowling, Hartford, Conn., for Owens-Corning.
Maurice T. FitzMaurice, Joseph R. Lupica, Reid & Riege, P.C., Hartford, Conn., for Owens-Ill.
Paul W. Orth, John T. Harris, Hoppin, Carey & Powell, Hartford, Conn., for GAF Corp. George W. Ripley, Garrity, Walsh, Diana & Wichman, Manchester, Conn., for Keene Corp.
Robert J. Cathcart, Shipman & Goodwin, Hartford, Conn., for Nicolet Industries.
Jacob H. Channin, William G. Speed IV, Hartford, Conn., for Armstrong Cork, Armstrong Contracting & Supply Inc. (Armstrong C & S, AC & S, ACANDS, Inc.).
Peter C. Dorsey, New Haven, Conn., for Fibreboard Paper Products.
S. Robert Jelley, William Doyle, William Prout, New Haven, Conn., for Eagle Picher.
Richard Sperandeo, Harold Donegan, New Haven, Conn., for 48 Insulations Corp.
R. Cornelius Danaher, Robert C. Danaher, Frederick Tedford, Hartford, Conn., for Pittsburgh Corning Corp.
Dion Moore, Bridgeport, Conn., for Robert A. Keasbey Co.
Francis J. Wynne, Gould, Killian & Wynne, Hartford, Conn., for Johnson Asbestos Corp.
Taggart D. Adams, Kelley, Drye & Warren, Stamford, Conn., for Benjamin Foster Co.
Peter C. Schwartz, Gordon, Muir & Foley, Hartford, Conn., for Johns-Manville.
Hadleigh H. Howd, Gerald S. Sack, Hartford, Conn., for Johnson Asbestos.
John R. FitzGerald, James M. Moher, Hartford, Conn., for H.K. Porter Co., Inc. & Southern Textile Corp.
The plaintiff as administratrix brought this suit for damages claiming that her husband died from injuries caused by his exposure to asbestos products manufactured by the defendants. The plaintiff has also asserted a claim in her individual capacity for loss of consortium. One of the defendants, Johnson Asbestos Corporation, has moved for summary judgment on the ground that this entire suit is barred by the statute of limitations; in the alternative, it has moved to dismiss the claim for loss of consortium on the ground that it does not state a claim upon which relief can be granted.
The plaintiff filed this law suit on October 28, 1980. The plaintiff's decedent first discovered his asbestos-related disease on September 22, 1978 and died on November 26, 1978.
The plaintiff responded to an interrogatory requesting the date that the asbestos-related disease was first discovered by stating: "Mesothelioma was diagnosed on September 22, 1978." At oral argument, the plaintiff's attorney attempted to create an issue of fact as to the date of discovery. He argued that the doctor had diagnosed the disease on September 22, 1978, but perhaps he did not inform the plaintiff's decedent. However, this hypothesis is not sufficient to create an issue of fact in the absence of an affidavit or other evidence to support it.
The defendant argues that this action is barred by the wrongful death statute of limitations. Conn.Gen.Stat. § 52-555.1 The plaintiff contends that the wrongful death statute of limitations does not apply to this action; rather, this action is governed by the products liability statute of limitations. Conn.Gen.Stat. § 52-577a.2 As this suit was filed slightly more than two years after the injury was first discovered, it would be barred by the two-year wrongful death statute of limitations but not the three-year products liability statute of limitations.
When the plaintiff's decedent discovered his injury, and when he died, the products liability statute of limitations did not apply to wrongful death suits.3 However, before the wrongful death limitations period had expired, the products liability statute of limitations was amended to apply to wrongful death suits. One effect of this amendment was to increase the limitations period for products liability wrongful death suits to three years from the date of discovery of the injury. The defendant argues that this amendment should not be retroactively applied to the plaintiff's suit.
The defendant has cited a number of cases holding that the substantive provisions of the new products liability act are not retroactive.4 In response, the plaintiff has cited a number of cases stating the general rule regarding retroactive application of statutes of limitation: statutes of limitation are ordinarily considered procedural and are retroactively applied to actions pending on or brought after the enactment of the new statute of limitations. E.g., Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 196, 286 A.2d 308 (1971). However, the plaintiff's argument did not discuss the exception to the general rule: if the right is created by statute, the statute of limitations is deemed to be a substantive limit on the right rather than a procedural limit on the remedy. Morris Plan Indus. Bank v. Richards, 131 Conn. 671, 673-74, 42 A.2d 147 (1945). This is a wrongful death suit which is not a common law cause of action but a statutory cause of action not recognized by the common law. See Floyd v. Fruit Indus., Inc., 144 Conn. 659, 668, 136 A.2d 918 (1957). Thus the wrongful death statute of limitations would be deemed substantive and would not be retroactively applied.
However, these rules of presumptive intent are not relevant if the statute includes a provision regarding its retroactive effect. Jones Destruction, 161 Conn. at 195, 286 A.2d 308. ("The determination of whether a statute is retrospective presents a question of legislative intent, and where there is no specific provision to that effect, the question becomes one of presumed intent.") The legislature has clearly expressed its intent that the new products liability statute of limitations should be retroactively applied to cases brought after its effective date, October 1, 1979.5Cf. DuBreuil v. A.H. Robins Co., No. N-80-439, slip op. at 2 (D.Conn. July 11, 1983) (); Colluci v. Sears, Roebuck & Co., No. N-81-276, slip op. at 8 (same). This suit was filed after October 1, 1979; therefore, the new products liability statute of limitations should be applied to the case brought by the plaintiff as administratrix.
Although the Connecticut Supreme Court has held that a spouse may recover damages for loss of consortium arising from a personal injury, Hopson v. St. Mary's Hospital, 176 Conn. 485, 408 A.2d 260 (1979), it has not decided whether loss of consortium claims may be recovered when the injuries result in death. A number of courts have held that a plaintiff cannot recover damages for loss of consortium arising from the decedent's death. Hernandez v. Bristol Hospital, No. H-81-344 (D.Conn. Sept. 1, 1981); Leland v. Chawla, 39 Conn.Sup. 8, 467 A.2d 439 (Super.Ct.1983); see generally Comment, Wrongful Death and Loss of Consortium in Connecticut, 14 Conn.L.Rev. 631 (1982). Contra Hinde v. Butler, 35 Conn.Sup. 292, 408 A.2d 668 (Super.Ct.1979) (). The rationale of the cases denying recovery is that the theory underlying the wrongful death statute is that the decedent's losses, and not the losses of the decedent's relatives, should be compensated. See Foran v. Carangelo, 153 Conn. 356, 359-62, 216 A.2d 638 (1966).
I am persuaded that the Connecticut Supreme Court would not permit the plaintiff to recover damages for loss of consortium resulting from her husband's death. Hernandez, supra. However, neither of the parties has...
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