Copeland v. Armstrong Cork Co.

• Decision Date: 06 March 1984
• Docket Number: No. 81-1369,81-1369
• Citation: 447 So.2d 922
• Parties: Lee Loyd COPELAND and Vaudeen Copeland, Appellants, v. ARMSTRONG CORK COMPANY, et al., Appellees.
• Court: Florida District Court of Appeals

Page 922

447 So.2d 922

Lee Loyd COPELAND and Vaudeen Copeland, Appellants, v. ARMSTRONG CORK COMPANY, et al., Appellees.

No. 81-1369.

District Court of Appeal of Florida Third District.

March 6, 1984.

As Corrected on Denial of Rehearing April 25, 1984.

Frederick M. Baron, P.A. and Jane N. Saginaw, Dallas, Tex., Robles & Robles and Brian Weinstein, Miami, for appellants.

Dixon, Dixon, Hurst, Nicklaus & Webb and M. Stephen Smith, III, Miami, for Armstrong Cork Co.

Paul & Thomson and Jon W. Zeder, Miami, for GAF Corp.

Lee, Schulte, Murphy & Coe and Thomas J. Schulte, Miami, for Keene Corp.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for Owens-Corning Fiberglas Corp.

Steven R. Berger, Miami, for H.K. Porter Co., Inc.

Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami for Fibreboard Corp.

Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for Eagle-Picher Industries, Inc.

Thompson & Clark and Robert H. Schwartz, Miami, for Pittsburgh Corning Corp. and Combustion Engineering, Inc.

No appearance for Nicolet Industries, Inc.

No appearance for Owens-Illinois, Inc.

Before HUBBART and DANIEL S. PEARSON, JJ., and EZELL, BOYCE F., Jr. (Ret.) Associate Judge.

HUBBART, Judge.

The central issue presented by this appeal is at what point in time does a cause of action accrue for purposes of the statute of limitations in a products liability tort action [§§ 95.11(3)(e), 95.031(2), Fla.Stat. (1981) ] where the claimed injury is a so-called "creeping disease," such as asbestosis, acquired over a period of years as a result of long-term occupational exposure to deleterious substances. We hold, in accord with the established law, that such a cause of action accrues when "the facts giving rise to the cause of action [a] were [actually] discovered [by the claimant] or [b] should have been discovered [by the claimant] with the exercise of due diligence...", § 95.031(2), Fla.Stat. (1981), whichever is earlier; this occurs whenever the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which reasonably supplies some evidence of causal relationship to the subject manufactured product. We conclude that, absent special circumstances, this determination is generally a question of fact for the jury and is not, as a rule, appropriate for resolution on a summary judgment. We, accordingly, reverse the final summary judgments entered below in favor of the defendants in this products liability tort action. The action herein was not barred as a matter of law by the applicable statute of limitations; nor was it barred on the additional product identification ground relied upon by the trial court below.

I

The facts relating to the central issue on appeal are as follows. From 1942 until his retirement in 1975, the plaintiff Lee Loyd Copeland worked as a boilermaker in various shipyards and at numerous other jobs in and around the state of Florida, during which time he was exposed to various asbestos products. These products, in turn, were allegedly manufactured, sold and distributed by 16 separate companies or their predecessors in interest, all of which were made party defendants in this action. ¹ The plaintiff Copeland claims that this long-term exposure to these asbestos products caused his health to deteriorate slowly over a period of years until he contracted the disease of asbestosis from which he suffers today. These asbestos products primarily appeared in a white, dust-like form which was present during a good deal of the plaintiff Copeland's entire work life.

The plaintiff Copeland apparently first became aware of the possible health hazards from this asbestos dust in 1958 or 1959 when another crew at his work site walked off the job because of alleged health hazards from the excessive dust. From that point on, he heard general rumors from fellow workers that the asbestos dust could be harmful to one's health. It was not until the late 1960's, however, that he began to experience physical discomfort; he began at times to have breathing problems and watery eyes when working around the white asbestos dust. In April 1972, he experienced more serious symptoms--shortness of breath and coughing up blood--and immediately thereafter consulted two doctors in Plant City, Florida. These doctors both diagnosed the plaintiff's condition as pneumonia and emphysema. Neither doctor linked this condition to the plaintiff's work, but one doctor did suggest a change in jobs to avoid the dusty conditions at the job site. The plaintiff thereafter returned to the job site, but this time worked in a supervisory capacity.

From 1972 on, the plaintiff's physical condition slowly deteriorated until he retired in April 1975. At that point, he was unable to work due to shortness of breath, a symptom consistent with emphysema, and accordingly retired pursuant to his doctor's advice. In 1978, the plaintiff was referred to another doctor from Tampa who examined and diagnosed the plaintiff as having asbestosis, contracted as a result of his long-term exposure to asbestos dust at work from 1942-1975; ² a second doctor concurred in this diagnosis.

On April 17, 1979, the plaintiff filed the instant lawsuit against the defendants in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The complaint, as amended, alleged that the plaintiff during his occupational life was exposed to and injured by asbestos products manufactured, sold and distributed by the various defendants herein, that the defendants failed to warn the plaintiff that exposure to asbestos products creates a grave health risk, that defendants' failure to so warn was a proximate cause of plaintiff's injuries and that the defendants are therefore liable under theories of strict liability in tort, negligence and breach of warranty. The plaintiff's wife Vaudeen Copeland also sued as a co-plaintiff in this cause, claiming loss of consortium and damages as a result of the disease allegedly inflicted upon her husband.

After discovery revealed the above-stated facts, the 13 defendants remaining in the lawsuit ³ filed motions for summary judgment on various grounds. The trial court, after a full hearing, entered a final summary judgment for all defendants on the ground that the action was time-barred by the applicable statutes of limitations [§§ 95.11(3)(e), 95.031(2), Fla.Stat. (1981) ]. The trial court also entered a final summary judgment for the defendants GAF Corporation, H.K. Porter Company, Inc. and Raybestos Manhattan, Inc. on the ground that the plaintiff had failed to adduce sufficient proof that the asbestos products to which he was exposed were manufactured distributed or sold by the above-stated defendants. This appeal follows. ⁴

II

We turn first to the controlling rules of law which govern this appeal, as to both the statute of limitations and the product identification grounds given below for the final summary judgments herein.

A

The applicable statute of limitations in Florida plainly provides that "[a]n action [in tort] for injury to a person founded on the design, manufacture, distribution, or sale of personal property ...," as here, "shall be commenced ... [w]ithin four years." § 95.11(3)(e), Fla.Stat. (1981). Florida statute of limitations law further provides that "[a]ctions for products liability," as described above, "must be begun within the period described in this chapter [four years], with the period running from the time the facts giving rise to the cause of action [a] were [actually] discovered [by the claimant] or [b] should have been discovered [by the claimant] with the exercise of due diligence," § 95.031(2), Fla.Stat. (1981), whichever is earlier.

Where, as here, the claimed injury in a products liability action is a so-called "creeping disease," like asbestosis, acquired over a period of years as a result of long-term occupational exposure to injurious substances, such as asbestos dust, the courts have held that the action accrues for purposes of the statute of limitations " 'only when the accumulated effects of the deleterious substance manifest themselves [to the claimant],' " Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 1024, 93 L.Ed. 1282 (1949), "in a way which supplies some evidence of causal relationship to the manufactured product...." Karjala v. Johns-Manville Products Corp., 523 F.2d 155, 160-61 (8th Cir.1975). ⁵ At that point, it is said that the facts giving rise to the cause of action either [a] are actually known by the claimant, or [b] should have been known to the claimant with the exercise of due diligence. Admittedly, there is no magic moment when this point in time arrives as we often deal here with inherently debatable questions about which reasonable people may differ. For that reason, these matters are generally treated as fact questions for a jury to resolve, and therefore inappropriate for resolution on a summary judgment or directed verdict. See generally cases collected at n. 5, supra.

B

The controlling law on the products identification question is stated in the companion case herein of Copeland v. Celotex Corp., 447 So.2d 908 (Fla. 3d DCA 1984). In that case, this court held that (1) a plaintiff in a products liability case wherein the claimed injury is asbestosis, need not allege or prove that he was exposed to specific asbestos products of a defendant asbestos manufacturer, (2) the plaintiff need only allege and prove that he was exposed to asbestos products in general and join a substantial number of asbestos manufacturers which marketed asbestos products in this country during the time of the plaintiff's exposure to such products, (3) the defendant manufacturer's share of liability for the damages, if any, sustained by the plaintiff is the same as the said defendant's share of market sales for all asbestos products sold in this country during the period of the plaintiff's...