DeRocchis v. Matlack, Inc.

• Decision Date: 11 July 1995
• Docket Number: No. 22594,22594
• Court: West Virginia Supreme Court
• Parties: Peter Vincent DeROCCHIS and Judith DeRocchis, Plaintiffs Below, Appellants, v. MATLACK, INC., a Foreign Corporation, and Leo Boats, Defendants Below, Appellees, and Strick Corporation, Third-Party Defendant Below, Appellee.

Page 663

460 S.E.2d 663

194 W.Va. 417

Peter Vincent DeROCCHIS and Judith DeRocchis, Plaintiffs Below, Appellants, v. MATLACK, INC., a Foreign Corporation, and Leo Boats, Defendants Below, Appellees, and Strick Corporation, Third-Party Defendant Below, Appellee.

No. 22594.

Supreme Court of Appeals of

West Virginia.

Submitted May 3, 1995.

Decided July 11, 1995.

Syllabus by the Court

1. "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syllabus point 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "The statute of limitations ordinarily begins to run when the right to bring an action for personal injuries accrues which is when the injury is inflicted." Syllabus point 1, Jones v. Trustees of Bethany College, 177 W.Va. 168, 351 S.E.2d 183 (1986).

3. When, in the course of employment, a person receives a number of similar, but separate, injuries, each injury gives rise to a separate and distinct cause of action. Further, the statute of limitations for each cause of action begins to run from the date of the injury giving rise thereto, without regard to any previous injury or injuries.

Robert P. Fitzsimmons, Russell Jay Guthrie, Fitzsimmons Law Offices, Wheeling, for appellants.

Ernest A. Petroff, P. Edward Pratt, Baker, Worthington, Crossley & Stansberry, Knoxville, TN and Frank X. Duff, Yolanda G. Lambert, Schrader, Recht, Byrd, Companion & Gurley, Wheeling, for appellees, Matlack, Inc., and Leo Boats.

James R. Hartline, Thomson, Rhodes & Cowie, P.C., Pittsburgh, PA, for appellee, Strick Corp.

FOX, Judge: ¹

Peter Vincent DeRocchis and Judith DeRocchis, his wife, the appellants, sued Mr DeRocchis' employer, Matlack, Inc., and Leo Boats for respiratory injuries which Mr. DeRocchis claimed he sustained as a result of being exposed to tolulene diisocyanate in the course of his employment from 1972 until the time of the filing of the complaint. ² The Circuit Court of Marshall County awarded the defendants summary judgment on the ground that the DeRocchises' action was barred by the statute of limitations. In the present appeal, the DeRocchises allege that the trial court erred by utilizing the wrong date in determining when the limitations period began running and had the proper date been utilized, their civil action would not have been barred by the statute of limitations. After reviewing the questions presented and the record, we believe that the appellants' complaint was timely filed as to any tortious acts committed within two years before the filing of their complaint. We also believe that the DeRocchises' claim is barred as to any act committed more than two years before the filing of the complaint.

The record indicates that Peter Vincent DeRocchis worked as a chemical truck driver for Matlack, Inc., from 1972 until the time he filed his complaint on 17 April 1990. During that time, he was exposed to tolulene diisocyanate fumes on a number of occasions and, as a result, developed a sensitivity to those fumes.

In March or April 1989, while Mr. DeRocchis was delivering an isocyanate to a facility owned by the appellee, Strick Corporation, a large spill occurred, and Mr. DeRocchis was again exposed to isocyanate fumes.

In September 1989, Mr. DeRocchis, who was a member of the National Guard, underwent a physical examination in conjunction with his military service. In the course of the examination, he was administered a pulmonary function test, and the test showed diminished pulmonary function. As a consequence, he was discharged from the National Guard.

On 23 April 1990, Mr. DeRocchis filed the complaint which is involved in the present appeal. He alleged that his employer, Matlack, Inc., had, among other things, failed to warn him about the effects of isocyanates, had failed to provide him with adequate instruction on the handling of the substances, had failed to provide him with proper safety equipment, and had failed to provide an adequate program to protect him. In the complaint he also made similar claims against Leo Boats.

After being served with the complaint, Matlack, Inc., filed a third-party complaint against Strick Corporation. In that complaint, Matlack, Inc., alleged that any injuries to Mr. DeRocchis were caused by the acts or omissions of Strick Corporation, its agents, servants, workmen, and employees.

Extensive discovery was conducted. In a deposition, Mr. DeRocchis testified that he first realized that he had become sensitized to tolulene diisocyanate in 1975. In discussing what triggered his realization, Mr. DeRocchis testified as follows:

Q: And what triggered that if you recall?

A: Having to go to the hospital and see what was causing me to have a little difficulty breathing.

* * * * * *

I was being examined by Dr. Heceta at the time and he detected a slight wheeze and admitted me to the hospital ...

* * * * * *

Q: What did you tell him [Dr. Heceta] about what you thought caused ... [the respiratory problems]?

A: Work conditions.

Q: What specific work conditions?

A: He asked me what type of job I did and I told him I drove a truck for Matlack and he asked me what it covered and I said we hauled isocyanates....

Mr. DeRocchis further testified that as early as 1978 or 1979 he knew that isocyanates, in general, and tolulene diisocyanate, in particular, could cause serious respiratory problems. ³ Also, evidence was introduced showing that Mr. DeRocchis had filed a workers' compensation claim for an occupational injury dated 31 March 1983. On that claim, the claimant's physician identified Mr. DeRocchis' injury as being "inhalation of dangerous chemical fumes. Affected throat and lung."

Discovery also revealed the following notation in medical records made by Dr. Heceta in 1975:

[Mr. DeRocchis] has been in perfect health except for the past 3 years he has been noticing increasing shortness of breath and wheezing on and off. He ... now is a truck driver where they transport some fumes, he calls "isocyanates."

In other notes made in 1975, Dr. Heceta said the following about Mr. DeRocchis:

Chief Complaint: Shortness of breath ... He claims he is a truck driver and that he transports some fumes he calls "iso-cyanates."

Review of Symptoms: Essentially normal except for the respiratory system where he has some wheezing in the mornings as well as progressive shortness of breath not associated with any chest pain.

Other evidence showed that a "Proventil" inhaler was prescribed for Mr. DeRocchis in 1983 and that that prescription was later refilled. The Proventil inhaler was designed to counteract certain of the effects of exposure to isocyanate fumes.

After substantial discovery had been completed, the defendants filed a joint motion for summary judgment. The circuit court, after taking the motion under consideration, granted it on 3 May 1994. In the memorandum order granting summary judgment, the trial court stated:

The Defendants' Motion is supported by a depositional transcript, medical reports regarding the plaintiff, Peter DeRocchis, from the Bellaire Medical Group (January 25, 1975), Dr. W. Heceta, M.D. (February 4, 1975), Bellaire City Hospital (February 5, 6 and 7, 1975), Workers' Compensation Forms and Billings (1975, 1983), and additional medical records regarding the Workers' Compensation claims.

The plaintiff contends that the condition and injury which are the subject of this litigation occurred in April of 1989 and that "he knew or by the exercise of reasonable diligence should have known of the existence of his injury only after April of 1989."

However, it appears that Mr. DeRocchis has known since at least 1975 that he was sensitized to isocyanates; that since 1978-1979 isocyanates could cause respiratory problems; that in 1975 Mr. DeRocchis filed a workers' compensation claim for injury associated with exposure to isocyanates; that in March, 1983, he filed a workers' compensation claim for injury associated with exposure to isocyanates; and that Mr. DeRocchis has been receiving medication for isocyanate related problems since at least 1982.

This court would concur that plaintiffs urge West Virginia to adopt, in addition to the "discovery of the injury rule," another rule entitled "discovery of seriousness of the injury rule."

"... Consonant with the spirit of this rule, this Court has previously held, upon ample supporting authority, that to successfully resist a motion for summary judgment, the party against whom it is made must present some evidence to indicate to the court that facts are in dispute, when the moving party's evidence shows no disputed facts. The mere contention that the issues are disputed is not sufficient to deter the trial court from the award of summary judgment." SEE BRADY V. REINER, 157, W.Va. 10, 198 S.E.2d 812 (1973); MILLER V. HATTON, 184 W.Va. 765, 403 S.E.2d 782 (1991). The record in the instant case is lacking oppositional affidavits or other means of expressing a factual controversy by the plaintiffs.

The controlling case is JONES VS. THE TRUSTEES OF BETHANY COLLEGE, et al., 351 S.E.2d 183 (W.VA.1986) granting and affirming summary judgment dismissal of an untimely personal injury lawsuit. The longest controlling statute of limitations here is a two-year statute. The opinion conforms with this case law.

In the present proceeding, the appellants contend that the lower court erred in granting summary judgment on the basis of the statute of limitations, inasmuch as they filed their complaint for personal injuries approximately one year after receiving the injuries.

In Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), this Court discussed at some length the circumstances under which summary judgment could...