Harding v. K.C. Wall Products, Inc.

• Decision Date: 10 April 1992
• Docket Number: No. 66513,66513
• Parties: , Prod.Liab.Rep. (CCH) P 13,148 Charlett M. HARDING, Individually and as Executrix of the Estate of Jerry R. Harding, Deceased, Appellee, v. K.C. WALL PRODUCTS, INCORPORATED, A Missouri Corporation, Appellant.
• Court: Kansas Supreme Court

Page 958

831 P.2d 958

250 Kan. 655, Prod.Liab.Rep. (CCH) P 13,148

Charlett M. HARDING, Individually and as Executrix of the Estate of Jerry R. Harding, Deceased, Appellee, v. K.C. WALL PRODUCTS, INCORPORATED, A Missouri Corporation, Appellant.

No. 66513.

Supreme Court of Kansas.

April 10, 1992.

Syllabus by the Court

1. The statute of limitations in effect at the time an action is filed applies.

2. Statutes complete in themselves, relating to a specific thing, take precedence over general statutes.

3. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court's duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.

4. A statute operates prospectively unless its language clearly indicates the legislature intended for it to operate retroactively. Legislatures may by express provision make procedural laws retroactive because no property rights are involved. A different rule applies, however, to substantive laws. They affect vested rights and are not subject to retroactive legislation which would constitute the taking of property without due process.

5. A statute of limitations extinguishes the right to prosecute an accrued cause of action after a period of time. It cuts off the remedy. It is remedial and procedural.

6. A statute of repose limits the time during which a cause of action can arise and usually runs from an act of a defendant. It abolishes the cause of action after the passage of time even though a cause of action may not have yet accrued. It is substantive.

7. Kansas constitutional protection applies only to statutes of repose because they pertain to substantive rights.

8. Article 2, § 16 of the Kansas Constitution should not be construed narrowly or technically to invalidate proper and needful legislation, and where the subject of the legislation is germane to other provisions, the legislation is not objectionable as containing more than one subject or as containing matter not expressed in its title. This provision is violated only where an act of legislation embraces two or more dissimilar and discordant subjects that cannot reasonably be considered as having any legitimate connection with or relationship to each other.

Daniel L. Fowler, of Watson, Ess, Marshall & Enggas, Kansas City, Mo., argued the cause, and Paul R. Lamoree, of the same firm, and Jason R. Brown, of the same firm, Olathe, were with him on the briefs, for appellant.

Jerry R. Palmer, of Palmer & Marquardt, Topeka, argued the cause and was on the brief, for appellee.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, was on the briefs, for amicus curiae Kansas Ass'n of Defense Counsel.

Randall K. Rathbun, of DePew Gillen & Rathbun, Wichita, was on the brief, for amicus curiae Kansas Trial Lawyers Ass'n.

HERD, Justice:

Charlett M. Harding, individually and as an executrix of her husband's estate, brought this tort action against K.C. Wall Products, Inc. (K.C. Wall). K.C. Wall motioned for summary judgment, arguing Harding's claim was barred by the statute of limitations, K.S.A.1991 Supp. 60-513. The district court denied K.C. Wall's motion and K.C. Wall brought this interlocutory appeal.

The parties stipulated to the following facts. From approximately 1963 until his death Jerry Harding was a painting contractor in Wichita, Kansas. Harding Painting Contractors purchased asbestos-containing drywall products from K.C. Wall and others from about 1972 until no later than January 1, 1977.

K.C. Wall Products, Inc., is a Missouri corporation with its principal place of business located in Kansas. It is the successor by merger to a company formerly known as Ruco, Inc. K.C. Wall's predecessor did not begin to manufacture or sell any asbestos-containing products until 1971, and did not manufacture or sell any asbestos-containing products after April 1976 at the latest. Therefore, Jerry Harding's last exposure to any asbestos- containing products manufactured, sold, or distributed by K.C. Wall or its predecessor occurred prior to January 1, 1977.

On March 1988 Jerry Harding was diagnosed by his treating physicians with malignant pleural mesothelioma. Harding died on October 26, 1988, as a result of this illness.

Charlett Harding, Jerry's wife, filed suit individually and as executrix of Jerry's estate against K.C. Wall on September 5, 1990. The petition alleged negligence and strict liability due to design defect and failure to warn.

On February 1, 1991, K.C. Wall moved for summary judgment, arguing the cause of action had been filed over 10 years after any possible wrongful act by K.C. Wall and, therefore, was barred by the statute of limitations, K.S.A.1991 Supp. 60-513. K.C. Wall further contended the 1990 amendment to K.S.A. 60-3303 designated as H.B. 2689, which Charlett claimed revived her claim, is unconstitutional. The district court denied K.C. Wall's summary judgment motion, finding H.B. 2689 was constitutional, and revived Charlett's cause of action. The district court also certified the issue for an interlocutory appeal pursuant to K.S.A.1991 Supp. 60-2102(b).

K.C. Wall's request for an interlocutory appeal was granted by the Court of Appeals on May 28, 1991. We transferred the action to this court on June 20, 1991.

The issue for our consideration is whether Charlett's cause of action is barred by the statutes of limitations. For a better understanding of the issues, let us examine the pertinent statutes of limitations, the most recent amendments thereto, and our opinions construing those statutes.

The general statute of limitations for tort actions is K.S.A.1991 Supp. 60-513. K.S.A.1991 Supp. 60-513(a) provides for a two-year limitation and K.S.A.1991 Supp. 60-513(b) and (c) explain how to determine when a cause of action accrues. Prior to the 1987 amendment to K.S.A. 60-513, subsection (b) stated:

"(b) Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action."

We construed K.S.A. 60-513 in Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974). Ruthrauff arose from a gas explosion and fire which destroyed a house and caused the death of one of the homeowners 12 days later. Within two years of the explosion but over 10 years after the house was built, the administratrix of the decedent's estate filed a suit against the building and plumbing contractors. The trial court granted the defendants' motion for summary judgment based upon its interpretation of K.S.A. 60-513(b) that " '[n]o cause of action can arise if more than ten years have elapsed since the alleged wrongful act.' " 214 Kan. at 187, 519 P.2d 661. We reversed, finding:

"Under K.S.A. 60-510 this primary 2 year period [in 60-513(a) ] is not to commence until each cause of action shall accrue, i.e., when substantial injury results. The 10 year provision is secondary and speaks to this primary period when it states 'but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.' ... [The 10-year provision] is merely a limitation on the extension of the 2 year period when substantial injury is not immediately ascertainable.... [The 10-year provision] does not affect or limit the primary 2 year period for bringing an action where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire." 214 Kan. at 191, 519 P.2d 661.

In addition, Ruthrauff has been interpreted to mean "[t]he ten-year cap contained in K.S.A. 60-513(b) is applicable only where the fact of injury is not reasonably ascertainable until some time after substantial injury occurs." Kinell v. N.W. Dible Co., 240 Kan. 439, 443, 731 P.2d 245 (1987).

The next case of major importance to understanding K.S.A. 60-513 prior to the 1987 amendment is Tomlinson v. Celotex Corp., 244 Kan. 474, 770 P.2d 825 (1989). Tomlinson came before this court as a certified question from the United States District Court. The certified question presented the following question: "Does the ten-year limitation of K.S.A. 60-513(b) apply to claims involving latent diseases and, if so, is it constitutional as applied to this plaintiff?" 244 Kan. 474, 770 P.2d 825. We held the 10-year limitation of K.S.A. 60-513(b) does apply to latent diseases and that such limitation is constitutional. Tomlinson claimed his personal injuries were caused by the exposure to asbestos which was manufactured, sold, or distributed by the defendants. Tomlinson's last exposure to asbestos was in 1971. His injuries, however, were not ascertained until September 1986.

Tomlinson filed his suit within 2 years of discovering his substantial injury but more than 10 years after his last exposure to asbestos. Although we stated "the rule announced in Ruthrauff remains applicable to the present case", we ultimately held "the ten-year limitation contained in subsection (b) began, at the latest, upon the last exposure of the plaintiff to asbestos produced, sold, and distributed by the defendants in 1971." 244 Kan. at 477, 481, 770 P.2d 825.

Recently this court overruled Tomlinson in Gilger v. Lee Constr., Inc., 249 Kan. 307, 318, 820 P.2d 390 (1991). In Gilger we again looked at K.S.A. 60-513 prior to the 1987 amendment. We ratified the rationale stated in Ruthrauff and other cases that "the stat...