Borello v. U.S. Oil Co.

Decision Date04 June 1986
Docket NumberNo. 84-1880,84-1880
Parties, Prod.Liab.Rep. (CCH) P 11,009 Mary BORELLO, Plaintiff-Appellant, v. U.S. OIL COMPANY, The Williamson Company, and Royal Globe Insurance Company, a foreign corporation, Defendants-Respondents-Petitioners.
CourtWisconsin Supreme Court

Robert E. Wrenn, Milwaukee (argued), for defendants-respondents-petitioners; Ellen E. Hill and Gibbs, Roper, Loots & Williams, on brief.

Richard E. Ceman, Jr., Milwaukee (argued), for plaintiff-appellant; Gray & End, Milwaukee, on brief.

HEFFERNAN, Chief Justice.

This is a review of an unpublished decision of the court of appeals dated May 6, 1985, which reversed a summary judgment of the circuit court for Milwaukee county, Hugh R. O'Connell, circuit judge. The summary judgment of the circuit court determined that a personal injury action brought by Mary Borello was not timely because the cause of action had accrued more than three years prior to the commencement of the action. 1 Borello's complaint was dismissed. The court of appeals reversed and remanded for further proceedings, because Hansen v. A.H. Robins Co., Inc., 113 Wis.2d 550, 335 [130 Wis.2d 400] N.W.2d 578 (1983), which adopted the discovery rule to determine when a cause of action accrues, was retroactive. The court of appeals stated that, although the injury allegedly caused by the defendant's defective product occurred more than three years prior to the commencement of the action, the cause of the injury, fumes from defendant's furnace, was not "discovered" until late in 1979--within three years of the commencement of the action. It accordingly reversed and ordered a trial. We affirm the decision of the court of appeals.

The questions to be resolved in this case are whether the discovery rule of Hansen can or need be applied retroactively and, if applied, whether, under the facts of this case, "discovery" by the plaintiff occurred within three years of commencing the action.

The crucial sequence of events, which is admitted for the purpose of this appeal, is that Mary Borello in December 1977 had the U.S. Oil Company install a furnace, manufactured by the Williamson Company, in her home. Within a few weeks, she complained of a bad odor from the furnace. On December 29, 1977, she wrote to U.S. Oil stating that her previous furnace problems were aggravated, not alleviated, and that "[m]y nose burns, makes me dizzy, headaches are bad and now my chest even hurts. It seems there is a lack of oxygen and I keep opening the windows."

In the letter she wrote that she had the same fumes and odor after the installation of the Williamson furnace that she had before. She wrote that she had masonry experts check her chimney to see if the problem lay there, but no masonry defects were found. Although the defendants would have this court conclude that Borello knew the cause of her injuries even at this early stage, the most that can be gleaned from the 1977 letter is that she was not able to attribute her symptoms to the old furnace, the new one, or to any furnace but perhaps instead to some other cause.

It is clear, however, because Mary Borello's symptoms were worse after the installation of the furnace and were aggravated during the heating season, when the furnace was used, that almost from that time she believed that the Williamson furnace was the cause of her respiratory problems. Because of the plaintiff's subjective belief that the furnace caused her injuries, the defendants assert that the cause of action against the defendants accrued at a very early date--certainly, they contend, more than three years before the commencement of the action in 1981.

Mary Borello, almost immediately after the furnace installation, sought medical assistance. She told the various physicians she consulted that she thought her ailments were caused by the furnace. However, each of them specifically told her that her complaints could not, with any degree of probability, be attributed to the furnace. She consulted three physicians before Dr. Charles W. Fishburn concluded in late 1979 that her disability was from "metal fume fever" caused by the defective furnace. The physicians she consulted in the interim discounted the furnace as a factor in her complaints and told her at various times that she had coronary sclerotic heart disease, viral infections, indeterminate abdominal pain, and psychoneurosis.

On February 5, 1979, she wrote to the Williamson Company and asked that someone again look at her furnace although, after the last inspection, she had been told there was nothing wrong. She wrote:

"What I do know is that if I continue to be ill from this furnace there will be a Court Case. I cannot continue to live in a house where there is a smokey haze and no oxygen in the room."

She was admitted to St. Elizabeth Hospital that same day with the primary diagnosis of "systemic viral infection."

When she returned to her home upon release from the hospital, she found the flat surfaces of her home covered with a red dust. She claims, although she had previously suspected the furnace as being a cause of her illness, it was not until this event on February 20, 1979, that she knew the furnace to be the cause of her illness.

On March 12, 1979, she consulted with Dr. Vernon Dodson. In her history given at that time to the physician, she said that, after the installation of her new furnace in the winter of 1977-78, she saw red fumes emanating from it. She also recounted the furnace "blow-up" which left a deposit of red dust throughout the house in February of 1979 while she was at the hospital. Nevertheless, that physician, after a statement of Mary Borello's symptoms, said he did not believe that they were related to the furnace episode. He suggested a further workup looking for evidence of allergic reactions.

Finally, in October of 1979, Dr. Fishburn, an occupational medicine specialist, examined Mary Borello and the laboratory findings derived from dust samples from her home. He concluded his report stating:

"In conclusion, a heat exchanger was coated with a coating of material containing significant amounts of zinc and lead which was dispersed in Miss Borello's home. It is a medical probability that a number of the upper respiratory symptoms and fever which Miss Borello experienced in 1978 and 1979 were a result of metal fume fever."

A subsequent medical opinion by Dr. Fishburn stated that, in addition to the exposure to an undue amount of metal oxides in the home related to an installation of a furnace in 1977, "she was exposed to levels of carbon monoxide sufficient to cause headache and nausea" because of "cracks in the heat exchangers" in the furnace.

This action was commenced by the filing of a complaint on November 25, 1981.

It is undisputed that Mary Borello, shortly after the installation of a Williamson furnace in her home, experienced some symptoms of injury. It is also clear that, within a few weeks after the installation, Mary Borello believed, suspected, or had a hunch that her symptoms were caused by the furnace. It is also apparent that repeated inspections of the furnace failed to give her any information that could lead to or confirm a reasoned or objective belief that the furnace was defective. It is equally apparent that in 1977, 1978, and 1979, prior to her consulting Dr. Fishburn, she was repeatedly told by physicians that her symptoms and disabilities could not be the result of the furnace. Other diagnoses were made, attributing the origin of her injuries to factors not related to the furnace--viral infections, allergies, or psychoneurosis.

Accordingly, we are confronted by a situation where a complainant was injured more than three years before the filing of the complaint and almost contemporaneously with that injury formed her own layperson's subjective opinion that the furnace was the cause. Yet, at every turn, she was told by professionals, who were assumed to be competent to diagnose her ailment and its cause, that the furnace fume problem was irrelevant.

Not until Dr. Fishburn made his diagnosis and findings was there any reasonable likelihood for an objective belief of a cause-and-effect relationship between the injury and the defective furnace.

Our initial inquiry is whether the date of Dr. Fishburn's diagnosis is the date on which Mary Borello "discovered" (knew or ought to have known) the nature of her ailment and that the furnace was the cause. Fishburn's diagnosis and findings were made on October 30, 1979. If this is the date on which "discovery" took place, the complaint filed on November 25, 1981, was timely filed as being within three years of discovery, the date which commenced the running of the period of limitations. The period of limitations, if properly so computed, would not have run until October of 1982.

We first look at the undisputed facts to determine whether, as a matter of law under Hansen, supra, the cause of action first accrued on October 30, 1979, when discovery is claimed to have occurred. If that date is found by this court to be the date of discovery, that fact will save Mary Borello's cause of action only if the discovery rule of Hansen v. A.H. Robins, supra, decided July 1, 1983, is retroactive in operation or is to be applied to the facts here.

We first must determine whether the date of Dr. Fishburn's diagnosis was the date of "discovery" as that term is used in Hansen. 2

In this instance, we conclude that October 30, 1979, is the date of "discovery," the date on which the cause of action accrued and the period of limitations commenced to run.

A case frequently cited for the pre-Hansen rule concerning the accrual of the statute of limitations is McCluskey v. Thranow, 31 Wis.2d 245, 142 N.W.2d 787 (1966). That case specifically rejected the discovery rule urged by the plaintiff therein and held that a cause of action for personal injury accrues on the...

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