Bendix Corp. v. Stagg

• Decision Date: 26 September 1984
• Citation: 486 A.2d 1150
• Parties: BENDIX CORPORATION, et al., Defendants Below, Appellant, v. Kenneth STAGG, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 1150

486 A.2d 1150

BENDIX CORPORATION, et al., Defendants Below, Appellant, v. Kenneth STAGG, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted: Sept. 26, 1984.

Decided: Dec. 13, 1984.

Upon appeal from Superior Court's denial of summary judgment. affirmed.

Richard K. Herrmann (argued) and Phebe S. Young of Bayard, Brill & Handelman, Wilmington, for appellant, Bendix Corporation.

Thomas C. Crumplar (argued) and Douglas B. Canfield of Jacobs & Crumplar, P.A., Wilmington, for appellee.

Before McNEILLY, MOORE and CHRISTIE, JJ.

McNEILLY, Justice:

This interlocutory appeal is from the Superior Court's denial of defendant Bendix's Motion for Summary Judgment. ¹ Defendant contends that plaintiff's product liability claim is barred by the applicable Statute of Limitations 10 Del.C. § 8119. ² The issue before this Court is whether the discovery rule we enunciated in Layton v. Allen, Del.Supr., 246 A.2d 794 (1968) is applicable in a product liability action involving latent diseases. The Superior Court answered in the affirmative. Stagg v. Bendix, Del.Super., 472 A.2d 40 (1984). We agree and hereby Affirm.

I

This product liability suit was brought by plaintiff, Kenneth Stagg, for his injuries, including his contraction of asbestosis, arising from his inhalation of asbestos fibers. Although numerous defendants are named in the suit, our focus is upon the Superior Court's denial of defendant, Bendix's Motion for Summary Judgment.

Kenneth Stagg claims to have been exposed to various products containing asbestos most of his work life spanning forty-four years, beginning in 1939. Specifically, he claims that he was exposed to asbestos from Bendix while fitting brake linings on heavy duty trucks and earth moving equipment while in the employ of the United States Air Force from 1947 to 1952 and from 1956 to 1972. After 1972, Stagg was exposed to asbestos products manufactured by parties other than Bendix.

Stagg alleges that Bendix was tortious in its manufacture, distribution, and supply of products containing asbestos, and in its failure to provide warnings as to the dangers involved in handling such products.

Bendix admits that it manufactured brakelinings containing asbestos during these years and for the purpose of its motion for summary judgment, concedes that Stagg may have been exposed to its asbestos products before 1973.

Although the last date of his exposure to Bendix's products was in 1972, Stagg asserts that his suit filed on December 29, 1982 is timely since his injuries did not manifest themselves earlier than 2 years before his complaint was filed. He contends that it was in the year or two prior to 1982 that he experienced some difficulty in breathing. He claims to have been assured by physicians that he was not suffering from asbestosis. Not until he consulted Dr. Susan Daum, a specialist in asbestosis diagnosis, in May of 1982, did he know that he had asbestosis.

In short, Stagg relies upon the discovery rule enunciated by this Court in Layton v. Allen, supra, to preserve his claim.

II

Confronted with the ambiguous language of the applicable Statute of Limitations, ³ this Court in the medical malpractice case of Layton v. Allen, supra, held that:

When an inherently unknowable injury, such as is here involved, has been suffered by one blamelessly ignorant of the act or omission and injury complained of, and the harmful effect thereof develops gradually over a period of time, the injury is "sustained" under § 8118 when the harmful effect first manifests itself and becomes physically ascertainable.

Id. at 798. Defendant, Bendix, argues that our holding in Layton is confined to the facts of that case involving a medical malpractice action or at least confined to those situations in which the expertise of the defendant in rendering professional service is relied upon.

In support of its position, Bendix cites this Court's subsequent applications of the Layton v. Allen discovery rule in Isaacson, Stolper & Co. v. Artisan's Savings Bank, Del.Supr., 330 A.2d 130 (1974) and Pioneer Nat. Title Ins. Co. v. Child, Inc., Del.Supr., 401 A.2d 68 (1979). In Isaacson, Stolper & Co. v. Artisan's Savings Bank, we applied the discovery rule to a claim of malpractice by an accountant and in Pioneer National Title Insurance Co. v. Child, Inc., the discovery rule was applied to an attorney malpractice claim.

Although we have thus far applied the Layton discovery rule in those cases where the expertise of the defendant in rendering professional service is relied upon, the holding of Layton is not limited to those types of cases. Nor has Bendix offered any policy reasons why Layton should be so limited. The fact of the matter is, in Layton we find support for the application of the discovery rule in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949).

Urie v. Thompson was a Federal Employers' Liability Act case involving the contraction of silicosis, another lung disease of slow progression. It was contended there that plaintiff contacted silicosis so long before the filing of the action as to be barred by the Statute of Limitations. The United States Supreme Court, however, held that the plaintiff was injured "only when the accumulated effects of the deleterious substance manifested themselves." In rejecting the argument that the Statute of Limitations began to run at the inhalation of silica dust, the Court explained:

We do not think the humane legislative plan intended such consequences to attach to blameless ignorance. Nor do we think those consequences can be reconciled with the traditional purposes of statutes of limitations, which conventionally require the assertion of claims within a specified period of time after notice of the invasion of legal rights.

337 U.S. at 170, 69 S.Ct. at 1025.

Asbestosis is another lung disease of slow progression. The inhalation of asbestos fibers over a considerable period of time cause a body reaction that may eventually impair the functioning of the lungs. See Insurance Co. of North America v. Forty-Eight Insulations, Inc., E.D.Mich., 451 F.Supp. 1230, 1236-37 (1978). Being unable to remove the particles of asbestos fiber, the lung reacts by walling off the particles. The walling off is accomplished by a proliferation of cells that eventually produce a dense scar like material. It may be many years before the presence of scar tissue can be detected, and still longer before the scar tissues reach a level as to impair or incapacitate the lung. The average latency period is twenty years from the initial exposure, but it may be as long as 50 years. Id.

Given that asbestosis is a latent disease, the same question is before us here as was in Layton v. Allen. Is it reasonable to conclude that the General Assembly, in wording § 8119, intended that such an inherently unknowable injury to a blamelessly ignorant plaintiff should be deemed "sustained" and an action thereon barred, before the harm had manifested itself? Again, we think not.

To require a plaintiff inflicted with asbestosis to bring his claim within two years of exposure or, as Bendix has argued, within two years of six months after exposure, when the scar tissue may begin to form, would be to ascribe to the General Assembly an intent contrary to reason and justice. Within such time plaintiff would still be without knowledge that he is suffering from the diseases caused by inhalation of asbestos fibers.

Here, Stagg was blamelessly ignorant that he suffered from an inherently unknowable injury, asbestosis. Therefore, the Statute of Limitations began to run when the harmful effect first manifested itself and became physically ascertainable. Just when the harmful effect first manifested itself and became ascertainable is a question of fact which is to be determined on a case by case basis by the Trial Court. Strickland v. Johns-Manville Intern. Corp. S.D.Tex., 461 F.Supp. 215 (1978). Here, the Superior Court properly denied Bendix's motion for summary judgment as it is still controverted when his asbestosis manifested itself and became ascertainable.

III

Bendix's reliance...