Combs v. Albert Kahn Associates, Inc., No. 2004-CA-002178-MR.

CourtCourt of Appeals of Kentucky
Writing for the CourtMinton
Citation183 S.W.3d 190
Decision Date06 January 2006
Docket NumberNo. 2004-CA-002178-MR.
PartiesJudy L. COMBS, Individually, and as Executrix of the Estate of Virgil Combs, Appellant, v. ALBERT KAHN & ASSOCIATES, INC., and Turner Construction Company, Appellees.
183 S.W.3d 190
Judy L. COMBS, Individually, and as Executrix of the Estate of Virgil Combs, Appellant,
v.
ALBERT KAHN & ASSOCIATES, INC., and Turner Construction Company, Appellees.
No. 2004-CA-002178-MR.
Court of Appeals of Kentucky.
January 6, 2006.

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COPYRIGHT MATERIAL OMITTED

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Kenneth L. Sales, Joseph D. Satterley, Paul J. Kelley, Louisville, KY, for appellants.

James M. Gary, Russell H. Saunders, Patrick W. Gault, Louisville, KY, for appellee Albert Kahn & Associates, Inc.

Rebecca F. Schupbach, Rania M. Basha, Louisville, KY, for appellee Turner Construction Company.

Before BARBER, MINTON, and TAYLOR, Judges.

OPINION

MINTON, Judge.


Judy Combs appeals from an opinion and order of the circuit court granting summary judgment in favor of Albert Kahn & Associates, Inc., and Turner Construction Company.1 The trial court dismissed the Combses' claims against Kahn and Turner on the sole ground that these claims were barred by the applicable statute of limitations. We hold that summary judgment was proper, and we affirm.

The General Electric Appliance Park was built in the 1950s. The buildings contain asbestos insulation in numerous areas and various applications. Virgil Combs worked at the Appliance Park from 1973 through 1999. In January of 2000, he was diagnosed with asbestosis. He alleged that he was exposed to asbestos fibers and asbestos dust from the buildings' deteriorating insulation while he was employed at the Appliance Park. On July 27, 2000, the Combses filed a lawsuit against a number of manufacturers or distributors of products containing asbestos, seeking recovery for Virgil's asbestosis, his increased risk of developing mesothelioma or other types of cancer, and mental suffering due to anxiety caused by this increased risk of cancer.2

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In March of 2003, Virgil was diagnosed with lung cancer. On April 9, 2003, the Combses moved to amend their complaint to add a claim for lung cancer. As part of this amended complaint, they also sought to add two new defendants, Kahn and Turner. Kahn is the architectural and engineering firm that prepared the specifications for the design of the Appliance Park. Turner is a construction company that served as the general contractor for the building of the Appliance Park from approximately 1951 through 1954. The Combses allege that Kahn and Turner were negligent in specifying the use of asbestos-containing products in the Appliance Park or, alternatively, in not warning the workers at the Appliance Park, such as Virgil, of the risks of asbestos exposure. The language of the amended complaint indicates that the Combses seek to hold all of the defendants, including Kahn and Turner, liable for Virgil's asbestosis, lung cancer, and his severe anxiety related to them.3 But at oral argument the Combses' counsel conceded that they have no viable claim against Kahn and Turner for Virgil's asbestosis, his increased risk of developing cancer, or his anxiety concerning his increased risk of developing cancer. They seek to hold Kahn and Turner liable only for any claims related to Virgil's lung cancer.

The trial court permitted the Combses to amend their complaint. Kahn and Turner soon filed a motion for summary judgment on the ground that any claims against them were barred by the statute of limitations. The trial court agreed with the movants that the Combses' causes of action for lung cancer against Khan and Turner accrued when Virgil was diagnosed with asbestosis in January of 2000 and that a one-year statute of limitations governed the Combses' claims. Accordingly, the trial court granted summary judgment in favor of Kahn and Turner, dismissing the Combses' claims against them as time-barred. The Combses filed this timely appeal. They assert that the trial court erred in granting summary judgment in favor of Kahn and Turner.

Before discussing the merits of the trial court's grant of summary judgment, we must define the scope of our review. In assessing the propriety of the trial court's grant of summary judgment to Kahn and Turner, we are mindful of the fact that summary judgment was appropriate only if Kahn and Turner showed that the Combses "could not prevail under any circumstances."4 In ruling on a motion for summary judgment, we must view the evidence in the light most favorable to the non-moving party or parties, who are the Combses in this case.5 When we review a trial court's decision to grant summary judgment, we must determine whether the trial court correctly found that there were no genuine issues of material fact and that

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the moving party was entitled to judgment as a matter of law.6 Because findings of fact are not involved in the summary judgment process, the trial court's decision is entitled to no deference.7

The trial court stated that the case was governed by a one-year statute of limitations but did not specify which one applied. We hold that KRS 413.140(1) is the appropriate statute of limitations for personal injury claims due to asbestos exposure.8 Personal injury actions governed by KRS 413.140(1) "shall be commenced within one (1) year after the cause of action accrued[.]" The parties seem to agree that a one-year statute of limitations is applicable, but they disagree on when the Combses' causes of action against Kahn and Turner accrued.

The fact that the original complaint filed against the manufacturers and distributors of asbestos products was timely filed does not save any untimely claims brought later against the newly-added defendants, Kahn and Turner, because these claims would not relate back to the original complaint. This is not a case in which Kahn and Turner had such notice of the claims against them so as not to be prejudiced by having these claims relate back to the earlier lawsuit.9 A new party cannot be brought into a lawsuit by amended complaint when the statute of limitations governing the claim against that party has already expired.10 If, as Kahn and Turner averred, the limitations period governing the claims against them expired in January 2001, one year after Virgil was diagnosed with asbestosis, these claims cannot relate back to the original complaint filed on July 27, 2000.

The instant case involves alleged injuries or diseases due to exposure to a harmful or toxic substance, asbestos, with a period of latency between the exposure and the development of or diagnosis of the diseases. In Louisville Trust Co. v. Johns-Manville Products Corp.,11 the Supreme Court was faced with a case, like the one before us here, in which the claimant first developed asbestosis and then developed cancer due to asbestos exposure.12 The Court decided to extend the discovery rule to tort actions for injury resulting from a latent disease caused by exposure to a harmful substance.13 The following rule was established: "`A cause of action will not accrue under the discovery rule until the plaintiff discovers or in the exercise of reasonable diligence should have discovered not only that he has been

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injured but also that his injury may have been caused by the defendant's conduct.'"14 No cause of action accrues for mere exposure to a harmful substance, such as asbestos, unless or until the exposure actually causes injury.15 But once an individual realizes that he has been injured by the tortfeasor, his cause of action accrues, even if he does not yet realize the extent of his injury.16

Cases involving exposure to asbestos pose a particular challenge in determining when a cause of action accrues because it is possible for a person to develop more than one disease over the course of time as a result of exposure to the same harmful substance. The Kentucky Supreme Court has explained the relationship between asbestos, asbestosis, and lung cancer as follows:

Since the discovery of its toxicity, asbestos has been found to be the cause of several impairments, mostly respiratory. Some, such as pleural plaques and thickening, are not debilitating. Others are potentially fatal, such as lung cancer and the rarer mesothelioma. Asbestosis can cause impairment, or . . . it can be a milder disease. What is important to note is that these diseases are not causes or prerequisites for each other. One does not flow from the other.17

"[A]sbestosis and lung cancer are separate and distinct diseases that both arise from asbestos exposure."18

States have been categorized as "one-disease" states or "two-disease" states by the way they treat multiple injuries or recurring injuries from a single exposure to a toxic or harmful substance:

Because a person may develop more than one injury (or experience a recurrence of an injury) from the same toxic exposure, a particularly difficult issue has been when the cause of action accrues in respect to each subsequent injury. In some states the first manifestation of an injury caused by toxic exposure begins a single statutory period. In these "one-disease" states the plaintiff has only one opportunity to sue for all injuries resulting from the same toxic exposure. He must bring a cause of action within the period of limitations after the development of the first disease or forever lose his right to sue for any injuries resulting from the same toxic exposure. In other jurisdictions, so called "two-disease" states, a new cause of action accrues with each injury discovered. Thus, when a person experiences a non-debilitating injury from toxic exposure he

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does not lose his right to sue if and when another injury later develops.19

As the Supreme Court acknowledged, "Kentucky has never been a `two disease' state. . . ."20 One of the factors weighing against Kentucky courts treating each injury discovered as a separate cause of action is the equitable rule against splitting of causes of action.21 This rule "requires a party to assert all causes of action which may arise from a single `transaction' in a single lawsuit, rather than proceeding piecemeal in...

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33 practice notes
  • Osborn v. Griffin, Civil Action Nos. 2011–89 WOB–CJS
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 29 September 2014
    ...of the tortfeasor within the statutory time constraints.” Queensway, 237 S.W.3d at 151 (quoting Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky.Ct.App.2006) (internal quotation marks omitted)).Plaintiffs—who had previously been informed that there was a question concerning title......
  • Osborn v. Griffin, Civil Action Nos. 2011–89 (WOB–CJS)
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 29 September 2014
    ...of the tortfeasor within the statutory time constraints.” Queensway, 237 S.W.3d at 151 (quoting Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky.Ct.App.2006) (internal quotation marks omitted)). Plaintiffs—who had previously been informed that there was a question concerning titl......
  • Patton v. Louisville Jefferson Cnty. Metro Gov't, Civil Action No. 3:18-CV-00346-RGJ
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 25 February 2021
    ...investigate and discover the identity of the tortfeasor within the statutory time constraints." Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky. App. 2006). Patton argues there was no "practical or legal way [he] could have known the names of the unknown officers and/o......
  • Despain v. Louisville Metro. Gov't, Civil Action 3:14-CV-P602-CHB
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 19 August 2021
    ...and discover the identity of the tortfeasor within the statutory time constraints.'” Id. (quoting Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky. App. 2006)). Here, Plaintiff contends that Defendants never released the initial discovery in this case until April of 2014, at whic......
  • Request a trial to view additional results
33 cases
  • Osborn v. Griffin, Civil Action Nos. 2011–89 WOB–CJS
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 29 September 2014
    ...of the tortfeasor within the statutory time constraints.” Queensway, 237 S.W.3d at 151 (quoting Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky.Ct.App.2006) (internal quotation marks omitted)).Plaintiffs—who had previously been informed that there was a question concerning title......
  • Osborn v. Griffin, Civil Action Nos. 2011–89 (WOB–CJS)
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Eastern District of Kentucky
    • 29 September 2014
    ...of the tortfeasor within the statutory time constraints.” Queensway, 237 S.W.3d at 151 (quoting Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky.Ct.App.2006) (internal quotation marks omitted)). Plaintiffs—who had previously been informed that there was a question concerning titl......
  • Patton v. Louisville Jefferson Cnty. Metro Gov't, Civil Action No. 3:18-CV-00346-RGJ
    • United States
    • United States District Courts. 6th Circuit. United States District Court of Western District of Kentucky
    • 25 February 2021
    ...investigate and discover the identity of the tortfeasor within the statutory time constraints." Combs v. Albert Kahn Assocs., Inc., 183 S.W.3d 190, 199 (Ky. App. 2006). Patton argues there was no "practical or legal way [he] could have known the names of the unknown officers and/o......
  • R.T. Vanderbilt Co., Inc. v. Franklin, No. 2007-CA-002103-MR.
    • United States
    • Court of Appeals of Kentucky
    • 6 February 2009
    ...when the statute of limitations governing the claim against that party has already expired." Combs v. Albert Kahn Associates, Inc., 183 S.W.3d 190, 194 (Ky.App.2006). KRS 413.140(1) is applicable to personal injuries caused by asbestos exposure; to be timely filed, the action must be c......
  • Request a trial to view additional results

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