Burns v. Jaquays Min. Corp., 2

• Decision Date: 10 December 1987
• Docket Number: No. 2,CA-CV,2
• Citation: Burns v. Jaquays Min. Corp., 752 P.2d 28, 156 Ariz. 375 (Ariz. App. 1987)
• Parties: Lowell V. BURNS, Gloria A. Lloyd, Georgina A. Burns, Vernon P. Burrington, Ryan Cothrun, Ronald K. Cothrun, William E. Crawford, Deloys M. Crawford, Jeffrey R. Crawford, Robert L. Dobbs, Gloria O. Dobbs, Robert L. Dobbs, II, Daniel L. Dobbs, Margo L. Drake, Rose M. Giorza, Geno Giorza, Maury S. Gooch, Carroll E. Hounshell, Carolyn G. Hounshell, Cathy J. Hounshell, Roy M. Hudson, Ruth E. Hudson, Thomas B. Hunt, Cytha L. Hunt, Crystal N. Hunt, Brandon T. Hunt, Kim I. Hutchinson, Elaine F. Insalaco, Stephanie L. Joy, Lilalee M. McClellan, Tamiko McClellan, Patrick W. McClellan, Toni M. McClellan, Steven D. McDonald, Nicole L. McDonald, Barbara J. Pearson, Vicky J. Preston, Nicole D. Preston, James M. Richards, Shannon Richards, David J. Vasbinder, Debra A. Vasbinder, Molly A. Vasbinder, Christine S. Christian, Gerald W. Fisher, Penelope A. Fisher, Gerald W. Fisher, II, Joseph I. Giorza, II, F. Arlene Hutchinson, Donald E. Vasbinder, Irene Burrington, Robert B. Denk, Audrey I. Denk, Gary R. Drake, Gary H. Drake, Louis A. Giorza, Dorothy O. Gooch, James S. Ianello, Janet N. Ianello, Anthony C. Insalaco, Salvatore M. Insalaco, Anna D. Insalaco, Gary P. McDonald, Karen K. McDonald, Grady M. Towerton, Verda M. Towerton, Charlene A. Vasbinder, Eunice M. West, John T. West, Dawn M. Winter (Drake), Raymond W. Luckie, Sarah Luckie, Kelly Luckie, Holly R. Luckie, Hiddie B. Pyle, Katherine A. Scott, Shawn H. Scott, Stacy A. Scott, Orval B. Williams, Lanora B. Williams, Melanie Williams, Lori Williams, Jason Williams, Ralph Ycedo, Jr., Albina Ycedo, and Michael E. Ycedo, Plaintiffs/Appellants, v. JAQUAYS MINING CORPORATION, D.W. Jaquays Mining and Contractors Equipment Co., D.W. Jaquays and Evelyn Jaquays, Gila County, Pinal-Gila Counties Air Quality Control District, City of Globe, State of Arizona, Mr. and Mrs. Rex Town, Neal Beaver and Mr. and Mrs. Larry M. Schwartz, Defendants/Appellees. 5970.
• Court: Arizona Court of Appeals

Page 28

752 P.2d 28

156 Ariz. 375

Lowell V. BURNS, Gloria A. Lloyd, Georgina A. Burns, Vernon P. Burrington, Ryan Cothrun, Ronald K. Cothrun, William E. Crawford, Deloys M. Crawford, Jeffrey R. Crawford, Robert L. Dobbs, Gloria O. Dobbs, Robert L. Dobbs, II, Daniel L. Dobbs, Margo L. Drake, Rose M. Giorza, Geno Giorza, Maury S. Gooch, Carroll E. Hounshell, Carolyn G. Hounshell, Cathy J. Hounshell, Roy M. Hudson, Ruth E. Hudson, Thomas B. Hunt, Cytha L. Hunt, Crystal N. Hunt, Brandon T. Hunt, Kim I. Hutchinson, Elaine F. Insalaco, Stephanie L. Joy, Lilalee M. McClellan, Tamiko McClellan, Patrick W. McClellan, Toni M. McClellan, Steven D. McDonald, Nicole L. McDonald, Barbara J. Pearson, Vicky J. Preston, Nicole D. Preston, James M. Richards, Shannon Richards, David J. Vasbinder, Debra A. Vasbinder, Molly A. Vasbinder, Christine S. Christian, Gerald W. Fisher, Penelope A. Fisher, Gerald W. Fisher, II, Joseph I. Giorza, II, F. Arlene Hutchinson, Donald E. Vasbinder, Irene Burrington, Robert B. Denk, Audrey I. Denk, Gary R. Drake, Gary H. Drake, Louis A. Giorza, Dorothy O. Gooch, James S. Ianello, Janet N. Ianello, Anthony C. Insalaco, Salvatore M. Insalaco, Anna D. Insalaco, Gary P. McDonald, Karen K. McDonald, Grady M. Towerton, Verda M. Towerton, Charlene A. Vasbinder, Eunice M. West, John T. West, Dawn M. Winter (Drake), Raymond W. Luckie, Sarah Luckie, Kelly Luckie, Holly R. Luckie, Hiddie B. Pyle, Katherine A. Scott, Shawn H. Scott, Stacy A. Scott, Orval B. Williams, Lanora B. Williams, Melanie Williams, Lori Williams, Jason Williams, Ralph Ycedo, Jr., Albina Ycedo, and Michael E. Ycedo, Plaintiffs/Appellants, v. JAQUAYS MINING CORPORATION, D.W. Jaquays Mining and Contractors Equipment Co., D.W. Jaquays and Evelyn Jaquays, Gila County, Pinal-Gila Counties Air Quality Control District, City of Globe, State of Arizona, Mr. and Mrs. Rex Town, Neal Beaver and Mr. and Mrs. Larry M. Schwartz, Defendants/Appellees.

No. 2 CA-CV 5970.

Court of Appeals of Arizona Division 2, Department A.

Dec. 10, 1987.

As Corrected Dec. 22, 1987.

As Amended Jan. 15, 1988.

Petition for Review Granted in part and Denied in part April 26, 1988.

Cross-Petition for Review Denied April 26, 1988.

[156 Ariz. 376] Harrison & Lerch, P.C. by Mark I. Harrison, Douglas L. Christian and Mary E. Berkheiser, Phoenix, Sparks & Siler, P.C. by Joe P. Sparks and Kevin T. Tehan, Scottsdale, Henderson & Goldberg by Thomas W. Henderson and Robert Jennings, Pittsburgh, for plaintiffs/appellants.

Robbins & Green, P.A. by William H. Sandweg III, Jill H. Grossman and William P. Hovell, Phoenix, for defendants/appellees.

John H. Ryley, Sp. Asst. Atty. Gen., Phoenix, co-counsel for defendant/appellee State of Arizona.

Burch & Cracchiolo, P.A. by Brian Kaven, Daniel R. Malinski, Phoenix, for defendants/appellees Gila County and Pinal-Gila Counties Air Quality Control Dist.

Leonard Everett by Leonard Everett, Tucson, for defendant/appellee City of Globe.

Gallagher & Kennedy by W. Charles Thomson, Thomas A. Maraz, Phoenix, co-counsel for defendant/appellee Schwartz.

Crampton, Woods, Broening & Oberg by Mary B. Wilson, James R. Broening, Phoenix, for defendant/appellee Beaver.

Marc Cavness, Phoenix, co-counsel for defendant/appellee City of Globe.

Hill & Savoy by George Hill, Phoenix, for defendants/appellees Town.

OPINION

HOWARD, Presiding Judge.

This is an appeal from the granting of a summary judgment. ¹ The main issue in this case is whether subclinical asbestos-related injury is sufficient to constitute the actual loss or damage required to support a cause of action. We hold that it is not.

Jaquays owned land in Gila County upon which it operated an asbestos mill and had a tailings pile. In 1973, the City of Globe approved the creation of a mobile home subdivision, Mountain View Mobile Home Estates, on adjacent land. The plaintiffs were all at one time residents of the trailer park. Asbestos fiber was blown from the mill and tailings pile into the trailer park. In 1979, the plaintiffs learned the asbestos was dangerous and life threatening. In December 1979, the governor declared the trailer park a disaster area. Steps were taken to clean up the contamination and, in 1983, the state began to relocate the residents who stayed on the premises. It was not until September 16, 1985, that the asbestos hazard was finally contained.

The first lawsuits were filed in 1980 and 1981. Other suits were filed in 1982 [156 Ariz. 377] and 1983. ² Plaintiffs seek damages for personal injuries and property damage based on negligence, gross negligence, strict liability and nuisance. They also claim damages for the increased risk of developing cancer or other asbestos-related diseases, the need for life-long medical surveillance to monitor the development of those diseases and emotional distress caused by the knowledge and fear of these impending developments. The trial court granted summary judgment on all counts except the count for damages to property.

We view the facts in the light most favorable to the plaintiffs. Gulf Insurance Co. v. Grisham, 126 Ariz. 123, 613 P.2d 283 (1980). According to the plaintiffs' expert witnesses, the residents of the trailer park were exposed to substantial and cumulative quantities of asbestos fiber. Their cumulative exposure was comparable to and greater than the exposure experienced by workers in asbestos mines, milling and manufacturing industries. They all have asbestos fibers in their lungs which are causing changes in the lung tissue. Sooner or later some of the residents, if they live long enough, will suffer from asbestosis and other asbestos-related diseases. Some of the children who have been exposed will die of asbestos-related diseases and some will become seriously handicapped.

It is clear from the record that none of the plaintiffs has been diagnosed as having asbestosis. Some of the plaintiffs claim to be suffering from mental anguish as a result of their exposure to asbestos, but there is no competent evidence of any physical impairment or harm caused by this exposure. "The threat of future harm, not yet realized, is not enough." Prosser and Keeton on the Law of Torts § 30 at 165 (5th ed. 1984). See also, DeBoer v. Brown, 138 Ariz. 168, 673 P.2d 912 (1983); Alhino v. Starr, 112 Cal.App.3d 158, 169 Cal.Rptr. 136 (1980); Johnson v. Rouchleau-Ray Iron Land Co., 140 Minn. 289, 168 N.W. 1 (1918). We believe the following quote from Schweitzer v. Consolidated Rail Corp. (Conrail), 758 F.2d 936, 942 (3rd Cir.1985), cert. denied, 474 U.S. 864, 106 S.Ct. 183, 88 L.Ed.2d 152, is applicable here:

"It is true that the possible existence of subclinical asbestos-related injury prior to manifestation may be of interest to a histologist. [citations omitted.] Likewise, the existence of such injury may be of vital concern to insurers and their insureds who have bargained for liability coverage triggered by 'bodily injury.' [citation omitted.] We believe, however, that subclinical injury resulting from exposure to asbestos is insufficient to constitute the actual loss or damage to a plaintiff's interest required to sustain a cause of action under generally applicable principles of tort law.

Moreover, we are persuaded that a contrary rule would be undesirable as applied in the asbestos-related tort context. If mere exposure to asbestos were sufficient to give rise to a F.E.L.A. cause of action, countless seemingly healthy railroad workers, workers who might never manifest injury, would have tort claims cognizable in federal court. It is obvious that proof of damages in such cases would be highly speculative, likely resulting in windfalls for those who never take ill and insufficient compensation for those who do. Requiring manifest injury as a necessary element of an asbestos-related tort action avoids these problems and best serves the underlying purpose of tort law: the compensation of victims who have suffered. Therefore we hold that, as a matter of federal law, F.E.L.A. actions for asbestos-related injury do not exist before manifestation of injury."

The reasoning in Schweitzer was approved in Jackson v. Johns-Manville Sales Corp. (Jackson III), 781 F.2d 394, 412 n. 22 (5th Cir.1986), cert. denied, 478 U.S. 1022, 106 S.Ct. 3339, 92 L.Ed.2d 743. See also Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) (cause of action for silicosis accrues when the disease manifests itself); Clutter v. Johns-Manville Sales Corp., 646 F.2d 1151 (6th Cir.1981) (a cause of action under Ohio law for asbestosis accrues when the disease manifests itself); Bendix Corp. v. Stagg, 486 A.2d 1150 (Del.1984) (statute of limitations for injuries arising from inhalation of asbestos fiber began to run when harmful effect of asbestosis first manifested itself and became physically ascertainable, and not at time of exposure or time scar tissue began to form).

Arizona follows the "discovery rule" as far as the statute of limitations for personal injuries is concerned. See Mack v. A.H. Robins Co., Inc., 573 F.Supp. 149 (D.C.1983); DeBoer v. Brown, supra. See also A.R.S. § 12-542(1). The statute of limitations does not begin to run until there is a manifestation of disease or physical injury. The purpose of the discovery rule, in the context of a latent disease, is to protect a plaintiff who, through no fault of his own, discovers only belatedly that he has the disease. Allowing plaintiffs to sue for injuries when the disease is still subclinical would be an abrogation of the discovery rule in asbestos cases and mandate the commencement of a suit as soon as the contact with the asbestos fiber occurs, hardly a desirable result.

We agree with the observations made by the court in Schweitzer v. Consolidated Rail Corp. (Conrail), supra. Justice would not be done either to the plaintiffs or the defendants by allowing a suit prior to manifestation of any physical injuries or disease. In addition to the reasons given by the federal court, we...