Givens v. Anchor Packing, Inc.

• Decision Date: 15 March 1991
• Docket Number: No. 90-697,90-697
• Citation: 237 Neb. 565,466 N.W.2d 771
• Parties: , Prod.Liab.Rep. (CCH) P 12,781 Harold GIVENS and Olga Givens, Plaintiffs, v. ANCHOR PACKING, INC., et al., Defendants.
• Court: Nebraska Supreme Court

Page 771

466 N.W.2d 771

237 Neb. 565, Prod.Liab.Rep. (CCH) P 12,781

Harold GIVENS and Olga Givens, Plaintiffs, v. ANCHOR PACKING, INC., et al., Defendants.

No. 90-697.

Supreme Court of Nebraska.

March 15, 1991.

Syllabus by the Court

1. Actions: Limitations of Actions: Statutes. The amendment of a statute of repose cannot resurrect an action which a prior version of the statute extinguished.

2. Constitutional Law: Due Process: Property. Neb. Const. art. I, § 3, prevents persons from being deprived of their property without due process of law.

3. Judgments: Statutes. A judgment is a vested right which cannot be impaired by a subsequent legislative act.

4. Limitations of Actions: Immunity: Statutes. Immunity granted by a completed statutory bar is a vested right which cannot be impaired by a subsequent legislative act.

5. Limitations of Actions: Legislature. A completed bar is a substantive, vested right which the Legislature cannot abrogate.

6. Supreme Court: Questions of Law: Courts. Under the provisions of Neb.Rev.Stat. § 24-219 (Reissue 1989), the Nebraska Supreme Court is limited to answering questions of law certified to it by a federal court.

Michael Kelley and Geoffrey C. Hall, of Kelley, Kelley & Lehan, P.C., Omaha, and Michael K. Mixson, of Middleton & Anderson, P.C., Savannah, Ga., for plaintiffs.

Theodore J. Stouffer, of Cassem, Tierney, Adams, Gotch & Douglas, William J. Brennan, Jr., and Gerald Friedrichsen, of Fitzgerald, Schorr, Barmettler & Brennan, Omaha, Cathy J. Dean, of Polsinelli, White, Vardeman & Shalton, Kansas City, Mo., John P. Mullen, of Gaines, Mullen, Pansing, Hogan & Cotton, Thomas A. Otepka, of Gross & Welch, and Joseph F. Gross, Jr., of Timmermier, Gross & Burns, Omaha, for defendants.

Before HASTINGS, C.J., BOSLAUGH, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and RONIN and COLWELL, D.JJ., Retired.

CAPORALE, Justice.

Pursuant to the provisions of Neb.Rev.Stat. § 24-219 (Reissue 1989), this court accepted certification from the U.S. District Court for the District of Nebraska of the following question:

Whether the 1981 amendment to Neb.Rev.Stat. § 25-224(2) and (5) can be retroactively applied to causes of action based upon injury allegedly resulting from exposure to asbestos products which were first sold for use or consumption more than ten years prior to August 30, 1981, which causes had earlier been extinguished by the provisions of the 1978 enactment of Neb.Rev.Stat. § 25-224(2).

We answer in the negative; that is, the amendment may not be applied retroactively.

In considering a motion for summary judgment filed by some of the defendants, the certifying court has found that there is no genuine issue as to the following material facts: Plaintiff Harold Givens was employed as a plumber in the construction industry from 1945 until he retired in 1984 at the age of 62; in the course of his employment he was exposed to asbestos products manufactured and sold for use or consumption by the defendants prior to August 30, 1971; these asbestos products contained at least some of the components mentioned in Neb.Rev.Stat. § 25-224(5) (Reissue 1989); in 1987, plaintiff discovered facts which led to a diagnosis of injury caused by his employment exposure to asbestos products; and he filed his lawsuit on June 17, 1988.

Prior to its amendment, § 25-224 (Reissue 1979) read, in pertinent part:

(1) All product liability actions shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action ... shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

Effective August 30, 1981, § 25-224 was amended to read, in pertinent part:

(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed ... by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

....

(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981.

Thus, the present statutory language purports to except from the 10-year period contained in § 25-224(2) damages based on injuries allegedly resulting from exposure to certain asbestos components. The question is whether this exception can be retroactively applied to lift a bar which had already been completed before the exception was adopted.

Plaintiffs argue that the postamendment text of the statute, being the edition in effect both at the time the cause of action accrued and when the claim was filed, is the version which is applicable to the suit. However, as we have said many times down through the years:

" 'It is well settled that it is competent for the legislature to change statutes prescribing limitations to actions, and that the one in force at the time suit is brought is applicable to the cause of action. The only restriction on the exercise of this power is, that the legislature cannot remove a bar or limitation which has already become complete, and that no limitation shall be made to take effect on existing claims without allowing a reasonable time for parties to bring action before these claims are absolutely barred by a new enactment.' ..."

Grand Island School Dist. # 2 v. Celotex Corp., 203 Neb. 559, 563-64, 279 N.W.2d 603, 607 (1979), quoting Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974), quoting Horbach v. Miller, 4 Neb. 31 (1875), quoting Bigelow v. Bemis, 84 Mass. (2 Allen) 496 (1861), citing Darling v. Wells, 55 Mass. (1 Cush.) 508 (1848), Brigham v. Bigelow, 53 Mass. (12 Met.) 268 (1847), Willard v. Clarke, 48 Mass. (7 Met.) 435 (1844), Wright v. Oakley & another, 46 Mass. (5 Met.) 400 (1843), and Battles v. Fobes, 35 Mass. (18 Pick.) 532 (1836), more fully reported 36 Mass. (19 Pick.) 578 (1837). This maxim has been followed by this court for fivescore and 16 years.

While we have never applied to the statute and amendment in question the rule that the Legislature cannot remove a limitations bar which has become complete, the maxim states a broad principle on the limits of legislative power, clearly applicable to the question certified. Whether § 25-224(2) is characterized as a statute of repose (as correctly advocated by defendants), or as a statute of limitations (as advocated by plaintiffs), it is a statute prescribing limitations on actions. As such, its amendment cannot resurrect an action which the prior version of the statute had already extinguished.

Although we have never fully articulated the rationale behind this rule, it is grounded upon the due process guarantee found in Neb.Const. art. I, § 3, which prevents persons from being deprived of their property without due process of law. The immunity afforded by a statute of repose is a right which is as valuable to a defendant as the right to recover on a judgment is to a plaintiff; the two are but different sides of the same coin. Just as a judgment is a vested right which cannot be impaired by a subsequent legislative act, Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973), so, too, is immunity granted by a completed statutory bar. See Denver Wood Products Co. v. Frye, 202 Neb. 286, 275 N.W.2d 67 (1979) (a person has no vested right in the running of a statute of limitations unless it has completely run and barred the action before the new limitation becomes effective). These are substantive rights recognized by Nebraska law and protected by its Constitution.

Plaintiffs cite us to a number of cases from other jurisdictions in support of their argument against the vested right theory. Most of these cases are from jurisdictions which either had a history of viewing even a perfected bar as a mere procedural right or made no distinction between statutes of limitations and statutes of repose.

For example, plaintiffs point to the case of Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885), as authority against the vested right theory. In Campbell, the U.S. Supreme Court upheld the Texas Supreme Court's determination that the repeal of a statute of limitations removed an already completed bar on an action for debt and that this did not deprive the defendant of a constitutionally protected property right. Justices Bradley and Harlan dissented, quoting the same passage from Bigelow v. Bemis, supra, which we have been...