Cline v. Ashland, Inc.

Decision Date05 January 2007
Docket Number1041076.
Citation970 So.2d 755
PartiesJack CLINE v. ASHLAND, INC., et al.
CourtAlabama Supreme Court

Appeal from Jefferson Circuit Court, Bessemer Division (CV-01-423); Dan C. King III, Judge.

Robert Leslie Palmer and Gregory A. Cade of Environmental Litigation Group, P.C., Birmingham, for appellant.

George M. Walker and Windy C. Bitzer of Hand Arendall, L.L.C., Mobile; and Tracy R. Davis of Hand Arendall, L.L.C., Birmingham, for appellees.

Scott A. Powell and Bruce J. McKee of Hare, Wynn, Newell & Newton, LLP, Birmingham; and J. Cecil Gardner and Sam Heldman of Gardner, Middlebrooks, Gibbons, Kittrell, Olsen, Walker & Hill, Mobile, for amicus curiae Alabama Trial Lawyers Association, in support of the appellant.

Fournier J. Gale III, Thomas W. Thagard III, and Scott S. Brown of Maynard, Cooper & Gale, P.C., Birmingham, for amicus curiae Business Council of Alabama, in support of the appellee.

On Application for Rehearing

SEE, Justice.

APPLICATION GRANTED; NO-OPINION AFFIRMANCE OF OCTOBER 14, 2005, WITHDRAWN; AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.

NABERS, C.J., and SEE, STUART, SMITH, and BOLIN, JJ., concur specially.

LYONS, HARWOOD, WOODALL, and PARKER, JJ., dissent.

SEE, Justice (concurring specially).

Jack Cline appeals from the summary judgment entered by the Jefferson Circuit Court, which held that Cline's claims are barred by the statute of limitations. On October 14, 2005, this Court affirmed the summary judgment without an opinion. Cline applied for a rehearing. We granted his application and heard oral argument. This Court today affirms the summary judgment on rehearing, without an opinion, and I write specially to explain why I concur in its decision to do so.

Cline alleges that from 1968 to 1987, while he was working for Griffin Wheel Company of Bessemer, he was exposed to the chemical benzene. He retired from Griffin Wheel in 1995, and he was diagnosed with acute myelogenous leukemia ("AML") on October 7, 1999. On April 6, 2001, Cline sued Ashland, Inc.; Chevron Phillips Chemical L.P., the successor in interest to Chevron Chemical Company, LLC; and ExxonMobil Corporation, alleging that the defendants manufactured and/or supplied the benzene to which he was exposed during the course of his employment at Griffin Wheel. He alleges that the defendants are responsible for his developing AML and are liable under the Alabama Extended Manufacturer's Liability Doctrine ("the AEMLD"). The defendants moved for a summary judgment, arguing that Cline's claims are barred by the applicable statute of limitations. Cline argued that the statute of limitations did not begin to run until he was diagnosed with AML. The trial court entered a summary judgment in favor of the defendants, holding that the applicable statute of limitations began to run in 1987, when Cline was last exposed to the benzene. Cline appealed the trial court's summary judgment as to his AEMLD claim, and this Court affirmed the summary judgment, without an opinion. Cline applied for a rehearing, which this Court granted.

In 1979, in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), this Court considered the case in which Jerry Garrett sued several companies, claiming that he had unknowingly been exposed to massive amounts of radiation from 1955 to 1957 because, he argued, the companies had negligently designed certain radar systems where he worked. He did not experience any health problems as a result of the radiation exposure until March 1975, when his hair suddenly turned white and then fell out. He consulted several doctors but it was not until March 1977 that a radiologist told him that his earlier radiation exposure had caused his health problems. Although Garrett brought his action within 1 year of the radiologist's diagnosis, he did so more than a year after the first manifestation of his health problems and more than 20 years after his last exposure to the radiation. At the time this Court decided Garrett, the applicable statute of limitations required that "[a]ctions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section" be commenced within one year from accrual. § 6-2-39(a)(5), Ala.Code 1975.1 In Garrett, this Court held that "the statute of limitations of one year began to run when [the] plaintiff was last exposed to radiation and the plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered." 368 So.2d at 521.

The Garrett Court invited the legislature to respond. The legislature responded by enacting Act No. 79-468, Ala. Acts 1979.2 Act No. 79-468 provided a discovery rule for cases in which a person has been injured by a toxic substance over a period of time. § 6-5-502, Ala.Code 1975. Under the discovery rule, the statute of limitations did not begin to run until the date the plaintiff discovered, or should have discovered, the injury. § 6-5-502, Ala. Code 1975. The legislature, however, provided in Act No. 79-468 that if any part of the Act was declared unconstitutional, then the entire Act would become inoperative. § 6-5-504, Ala.Code 1975. In accordance with this limitation, this Court invalidated the entire Act when it held that a particular section of Act No. 79-468 concerning a rule of repose was unconstitutional. With Act No. 79-468 no longer in effect, the law reverted to the "last exposure" rule declared in Garrett. Since then, the legislature has acted in the toxic-tort area, but has limited the scope of the subsequent act to injuries resulting from exposure to asbestos. § 6-2-30(b), Ala.Code 1975. The Alabama Legislature also has considered, and thus far chosen not to adopt, proposals that would provide a discovery rule in cases of the nature of this one.3

This Court also has consistently chosen to continue to follow Garrett's "last exposure" rule. See, e.g., Moore v. Glover, 501 So.2d 1187, 1190 (Ala.1986) ("[T]his Court's opinion in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), settled the question of the `accrual' of a plaintiff's claim in a radiation exposure case for purposes of determining when the applicable statute of limitations begins to run ...."); Hubbard v. Liberty Mut. Ins. Co., 599 So.2d 20, 21 n. 2 (Ala.1992) ("[I]t seems to be settled in Alabama that the `date of injury,' which starts the running of the statutory period of limitations in a continuous exposure case, occurs when the plaintiff was last exposed to the chemical or condition causing his injuries.").

The legislature has acted in this area both by enacting legislation and by considering, and thus far not adopting, proposed legislation. See §§ 6-5-500 through -504, Ala.Code 1975, and citations in footnote 3. The power "to declare what the law shall be" is a legislative power, and this Court will not revisit an area of the law in which the legislature has already acted. City of Daphne v. City of Spanish Fort, 853 So.2d 933, 942 (Ala.2003).

The determination of when the statute of limitations ought to begin to run in toxic-substance-exposure cases depends on a weighing of competing public policies. We seek in Alabama to compensate those who have been injured. Ala. Const.1901, Art. I, § 13 ("[T]hat every person, for any injury done him ... shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay."). On the other hand, we also seek to avoid stale claims and the injustice such claims can engender. Travis v. Ziter, 681 So.2d 1348, 1355 (Ala. 1996) ("At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims."). The proper balance between these competing public policies requires a weighing, and "[i]t is well established that `"[t]he Legislature is endowed with the exclusive domain to formulate public policy in Alabama ...."'"4 Leonard v. Terminix Int'l Co., 854 So.2d 529, 534 (Ala.2002) (citations omitted).

Justice Harwood states in his dissent that he would require that there be a manifest, physical injury before the statute of limitations begins to run in these toxic-substance-exposure cases. He would apply this interpretation prospectively only, as a forward-looking resolution of the problem. There is an appeal to the proposal; it looks very much like the statute enacted by the legislature in response to this Court's decision in Garrett, but without the repose provision that this Court held unconstitutional and that the legislature considered essential to the Act. The imposition of this sort of policy change, however, falls squarely within the power and competence of the legislative branch of our government. Berdeaux v. City Nat'l Bank of Birmingham, 424 So.2d 594, 595 (Ala.1982) ("[W]e cannot agree that redress should come by rewriting the law of torts .... To be able to answer [the question presented by the appeal] would require data that a court is ill equipped to gather, but which the legislature is equally capable of assessing. The issue itself presents a policy matter peculiarly within the province of the legislative as opposed to the judicial branch of government. ... [C]ourts ... should leave to the executive and legislative branches matters requiring resolution in the body politic.").

The public-policy question presented to this Court in this case is one of profound importance, not only to the parties involved, but to countless others as well; however, this Court's jurisdiction and competence are not defined by the importance of the matter presented. See Etowah County Comm'n v. Hayes, 569 So.2d 397, 398 (Ala.1990) ("In testing the absolutism of the authority of the legislative branch to appropriate operational funds for the executive branch, the judicial branch...

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