Griffin v. Unocal Corp.

Decision Date25 January 2008
Docket Number1061214.
PartiesBrenda Sue Sanford GRIFFIN, executrix of the estate of David Wayne Griffin v. UNOCAL CORPORATION et al.
CourtAlabama Supreme Court

Robert Leslie Palmer of Environmental Litigation Group, P.C., Birmingham, for appellant.

George M. Walker and Katie L. Hammett of Hand Arendall, L.L.C., Mobile, for appellees Unocal Corporation and TRMI Holdings, Inc.

Joe E. Basenberg and S. Leanna Bankester of Hand Arendall, L.L.C., Mobile, for appellee Radiator Specialty Company.

Richard Eldon Davis of Cabaniss, Johnston, Gardner, Dumas & O'Neal, LLP, Birmingham, for appellee Research Solvents & Chemicals, Inc.

Sid J. Trant, Richard H. Monk III, and Hallman B. Eady of Bradley Arant Rose & White, LLP, Birmingham, for appellee Hunt Oil Company.


Brenda Sue Sanford Griffin, as the executrix of the estate of David Wayne Griffin, deceased, appeals from the dismissal of her claims against Unocal Corporation, Radiator Specialty Company, Hunt Oil Company, TRMI Holdings, Inc., and Research Solvents & Chemicals, Inc. (hereinafter collectively "the defendant chemical companies"), in the wrongful-death action she filed against the defendant chemical companies and others. We reverse and remand.

Because the trial court granted the defendant chemical companies' motions to dismiss without resort to any facts supplied by affidavit or other evidentiary material outside the complaint, the relevant facts are those alleged in the complaint. Ex parte Alabama Dep't of Youth Servs., 880 So.2d 393, 397 (Ala.2003). From 1973 until approximately 1993, David Wayne Griffin was employed at a tire-manufacturing facility in Tuscaloosa. During his employment there, Griffin was exposed to benzene, benzene derivatives, rubber solvents, other toxic and hazardous chemicals, formaldehyde, and other aromatic compounds. These substances were produced or distributed by the defendant chemical companies.

On September 9, 2003, approximately 10 years after he left his employment at the tire plant, Griffin was diagnosed with acute myelogenous leukemia. On February 17, 2004, Griffin died as a result of the acute myelogenous leukemia.

On February 16, 2006, Griffin's wife, Brenda, as the executrix of his estate, filed a wrongful-death action alleging that David's illness and his subsequent death had been caused by his exposure to the various chemicals during his employment at the tire-manufacturing facility. In her complaint, Brenda alleged that the defendant chemical companies were responsible for David's developing acute myelogenous leukemia and are liable under the Alabama Extended Manufacturer's Liability Doctrine.

The defendant chemical companies filed motions to dismiss and/or motions for a judgment on the pleadings, arguing, based on Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), and its progeny, that Brenda's action was time-barred, because a personal-injury action based on exposure to hazardous chemicals accrues on the date of last exposure to those chemicals; consequently, an action not filed within two years of the date of last exposure is barred by the two-year statutory limitations period set forth in § 6-2-38(1), Ala.Code 1975. Thus, the defendant chemical companies argued, because the statutory limitations period for David's personal-injury claim had expired before his death, Brenda was barred as a matter of law from pursuing a wrongful-death action based on David's exposure to hazardous chemicals during his employment at the tire-manufacturing plant. See § 6-5-410(a), Ala.Code 1975.

On April 13, 2007, the trial court granted the defendant chemical companies' motions and dismissed the claims against them with prejudice. The trial court certified its judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., and Griffin appealed.

As the defendant chemical companies aptly state, the dispositive issue in this case is whether "the date of last exposure rule [is] still the law in Alabama." Defendant chemical companies' brief, at 2. Stated simply, it is not, because we hereby overrule Garrett and its progeny. We do so for the reasons set forth in Justice Harwood's scholarly dissent to this Court's no-opinion affirmance in Cline v. Ashland, Inc., 970 So.2d 755, 761 (Ala.2007)(Harwood, J., dissenting), which is attached as an appendix to this opinion. We hereby adopt the reasoning of that dissent as the opinion of the Court in this case.

In particular, as Justice Harwood stated, "a cause of action accrues only when there has occurred a manifest, present injury." Cline, 970 So.2d at 773 (Harwood, J., dissenting) (emphasis added). We need not repeat Justice Harwood's accurate description of the meaning of the word "manifest" in this context. Further, as Justice Harwood advocated in his dissenting opinion in Cline, the new accrual rule of toxic-substance-exposure cases will be applied prospectively, except in this case, where it will apply retroactively. Griffin, as the prevailing party in bringing about a change in the law, should be rewarded for her efforts.

For the foregoing reasons, the judgment of the trial court is reversed, and the cause is remanded for further proceedings consistent with this opinion.



SEE, STUART, SMITH, and BOLIN, JJ., dissent.

SEE, Justice (dissenting).

In Cline v. Ashland, Inc., 970 So.2d 755 (Ala.2007), this Court addressed a case very much like this one. We declined in that case to adopt a "discovery rule" in toxic-tort cases. I noted in my special concurrence in that case that a revision of the law in this area is properly entrusted to the legislature.

First, the question of recovery for toxic torts has been in the hands of the legislature at least since Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), when this Court adopted the last-exposure rule. I noted in my special concurrence in Cline that "[t]he Garrett Court invited the legislature to respond." 970 So.2d at 756 (See, J., concurring specially). The legislature responded with Act No. 79-468, Ala. Acts 1979. This Court, however, invalidated that act,1 and the law reverted to the last-exposure rule declared in Garrett. Since our decision in Garrett, "the legislature has acted in this area both by enacting legislation" providing for a discovery rule in asbestos-related-injury cases, "and by considering, and thus far not adopting, proposed legislation." Cline, 970 So.2d at 757 (See, J., concurring specially).2

Matters of policy are properly the domain of the legislature;3 it is for the legislature to determine when the statute of limitations begins to run in a toxic-tort case, because that question depends on a weighing of competing public policies. As a I wrote in Cline:

"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.'"' Leonard v. Terminix Int'l Co., 854 So.2d 529, 534 (Ala. 2002) (citations omitted)."

Were this Court a legislative body, we would have for our consideration many more policy alternatives than the parties to this appeal have presented to us. For example, we could retain the last-exposure rule but allow those who are exposed to a toxic substance to bring a cause of action for exposure, with a showing of a manifest, present injury. In Garrett, we stated that the injury "occurred on the date or dates of exposure," 368 So.2d at 520; however, that rule operates to bar an individual claim where one cannot demonstrate "a manifest present injury." Hinton v. Monsanto Co., 813 So.2d 827, 829 (Ala.2001). Thus, a revision of the manifest-present-injury rule is an alternative resolution of the problem. The actual injury from exposure to toxic substances is, apparently, genetic modification that occurs at the time of exposure and that, years or even decades later, can lead to the development of serious illnesses. See Gary E. Marchant, Genetics and Toxic Torts, 31 Seton Hall L.Rev. 949, 970-71 (2001) (explaining that exposure to toxic substances can result in "DNA adducts, in which a toxic substance or its metabolites bind[] with DNA to form a stable and characteristic chemical complex" and in cytogenic changes that are caused by a "breakage and rejoining of chromosomes after exposure to an agent capable of causing chromosome breaks"). The measure of damages for exposure could be based on the probability that an individual will develop a serious illness. We permit compensatory damages for future pain and suffering, Brown v. Lawrence, 632 So.2d 462 (Ala.1994), future medical expenses, Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801 (Ala.2003), and lost future income and wages, Joseph Land & Co. v. Gresham, 603 So.2d 923 (Ala.1992). The ability to measure genetic damage promises to improve as medical knowledge and technology advance. Allowing compensation after exposure would also allow one who has been exposed to a toxic substance to obtain preventive care or appropriate insurance. See Albert C. Lin, Beyond Tort: Compensating Victims of Environmental Toxic Injury, 78 S. Cal. L.Rev. 1439, 1489 (2005) ("[T]he compensation-for-risk approach enables individuals to pay for medical monitoring or preventative...

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