Kaeding v. W.R. Grace & Co.--Conn.

• Decision Date: 23 June 1998
• Docket Number: No. 97-598,97-598
• Citation: 961 P.2d 1256,289 Mont. 343
• Court: Montana Supreme Court
• Parties: Donald M. KAEDING and Louise E. Kaeding, husband and wife, Plaintiffs and Appellants, v. W.R. GRACE & CO.--CONN., a Connecticut corporation, Defendant and Respondent.

Page 1256

961 P.2d 1256

1998 MT 160

Donald M. KAEDING and Louise E. Kaeding, husband and wife, Plaintiffs and Appellants, v. W.R. GRACE & CO.--CONN., a Connecticut corporation,

Defendant and Respondent.

No. 97-598.

Supreme Court of Montana.

Submitted on Briefs April 2, 1998.

Decided June 23, 1998.

Rehearing Denied July 23, 1998.

Jon L. Heberling; McGarvey, Heberling, Sullivan & McGarvey, Julianne Hinchey; Hinchey Law Offices, Kalispell, for Appellants.

Gary L. Graham; Garlington, Lohn & Robinson, Missoula, for Respondent.

LEAPHART, Justice.

¶1 Appellants Donald M. and Louise E. Kaeding (the Kaedings) appeal from the order of the Montana Nineteenth Judicial District Court, Lincoln County, granting summary judgment in favor of Respondent W.R. Grace & Company (W.R. Grace). We affirm.

¶2 We restate the issues on appeal as follows:

¶3 1. Did the District Court err in holding that the Kaedings' claims were not filed within the statute of limitations and in granting summary judgment for W.R. Grace?

¶4 2. Did the District Court err in considering the September 1, 1992 letter from Dr. Alan Whitehouse (Dr. Whitehouse) to the Kaedings' attorney?

Factual and Procedural Background

¶5 From 1962-64, Donald Kaeding (Kaeding) worked in a vermiculite mine and mill located near Libby, Montana. Vermiculite is a silicate mineral used in insulation. W.R. Grace owned and operated the mine during Kaeding's tenure there and until its closure in 1990. The Kaedings allege that well before 1962, W.R. Grace was aware that the vermiculite dust contained asbestos and that asbestos was a serious health hazard. The Kaedings contend that W.R. Grace did not warn its employees that the dust in its facility could be harmful. W.R. Grace argues that it provided the employees with respirators to protect them from the dusty conditions.

¶6 Over the past thirty years, Kaeding has suffered lung- and heart-related ailments. He has visited many doctors and heard various medical opinions and diagnoses. In 1967, a radiologist noted Kaeding had "old fibrosis" in his lungs, which "suggests the possibility of asbestosis with fibrosis and scarring." In about 1969, Kaeding was diagnosed with thyroid toxicosis(Grave's disease) and with tuberculosis (TB) in 1971. From 1973 to 1995, several x-rays of Kaeding's lungs revealed scarring from the TB. In 1983, Kaeding was examined by Dr. Huffman in Libby, Montana and told he had "chronic lung disease secondary to pneumonia and smoking...." Dr. Huffman examined Kaeding again in 1985 and diagnosed him with "emphysema from history of smoking and working at W.R. Grace."

¶7 In 1983, W.R. Grace conducted breathing tests of current and former employees of the vermiculite mine. At that time, Kaeding learned that the vermiculite dust he was exposed to while employed by W.R. Grace contained asbestos. In January 1985, W.R. Grace mailed Kaeding the results of the radiological tests it had conducted. The report noted that Kaeding's "pleural placquing [plaque on the membrane lining the lungs and chest cavity] is most compatible with asbestosis but the hilar retraction would be more typical of silicosis."

¶8 Kaeding's brother, who had also worked at W.R. Grace's facility, was diagnosed with asbestosis in 1990. In 1991, during an examination at the Veteran's Administration (VA) Hospital in Spokane, Kaeding told Dr. Howard Platter that he had worked in W.R. Grace's facility for two years and that the facility had been shut down because a number of employees had developed pulmonary troubles. Kaeding also told Dr. Platter about his brother's employment with W.R. Grace and his asbestosis. In Kaeding's radiology diagnostic report, Dr. Platter reported what Kaeding had told him and noted that the "question in this case is whether the present findings could involve an unusual case of asbestosis."

¶9 Kaeding's medical records also contain a "progress note" dated October 22, 1991 written by a nurse at the mobile VA Hospital in Libby. This note states: "[A]ppears to be an advanced case of asbestosis." A September 15, 1992 radiology diagnostic report from the Spokane VA Hospital states: "By history, the patient is said to have an old asbestosis." Kaeding contends that Dr. Platter's notes regarding Kaeding's brother's history of asbestosis were inadvertently carried forward in subsequent records as Kaeding's own history of asbestosis.

¶10 In 1992, Kaeding retained attorney Tom Baiz (Baiz) to represent him in a possible claim against W.R. Grace. Baiz's practice included representing other individuals who had contracted asbestos-related diseases after exposure at W.R. Grace's facility in Libby. Baiz obtained Kaeding's medical records and sent them to Dr. Whitehouse, a pulmonary specialist practicing in Spokane. Dr. Whitehouse was familiar with the conditions at W.R. Grace's facility and had seen about 200 of W.R. Grace's former employees who were suffering from pulmonary conditions.

¶11 On September 1, 1992, after reviewing two of Kaeding's x-rays, Dr. Whitehouse sent Baiz a letter expressing his opinion. He stated that Kaeding had, among other things, "pleural thickening and calcification along both lateral chest walls, and involving both diaphragmatic surfaces, and those findings are all compatible with asbestosis." Dr. Whitehouse noted that he had not seen the pattern of scarring displayed by Kaeding with asbestosis patients previously. However, Dr. Whitehouse concluded:

It would appear to me as if the basilar changes that are present in the lower lung zones are quite easily ascribable to asbestosis. In view of the fact that there is an exposure history, and although I do not know all of the details of that exposure history, that was a period of time that there was considerable asbestosis exposure at the mine....

Basically in conclusion then my opinion would be that the lower findings on the chest x-ray are consistent with asbestosis....

¶12 On October 7, 1992, Baiz sent a letter to counsel for W.R. Grace regarding Kaeding and three other former employees at the mine. Baiz stated he was "attempt[ing] to negotiate settlements in these cases without formally proceeding with litigation." Baiz enclosed Kaeding's biography and exposure history, his medical records, and the letter from Dr. Whitehouse.

¶13 Kaeding states that he never saw the letter from Dr. Whitehouse to Baiz and was not told of its contents. In 1992 and 1993, Kaeding was again examined by a physician at the Spokane VA Hospital and told that his lungs were "clear." Kaeding was not examined personally by Dr. Whitehouse until May 1996, when he was referred by his doctor in Libby. At that time, Dr. Whitehouse performed a physical examination, pulmonary function tests, and a chest x-ray. Dr. Whitehouse's prior opinion was confirmed, and he diagnosed Kaeding with asbestosis.

¶14 On June 12, 1996, the Kaedings filed a complaint in the District Court alleging fraud and intentional injury, negligence, failure to provide a safe workplace, and strict liability. W.R. Grace moved for summary judgment, arguing that the statute of limitations had run on the Kaedings' claims. The Kaedings filed a brief in opposition to the motion and a motion in limine to exclude evidence of the September 1, 1992 letter from Dr. Whitehouse. On August 26, 1997, the District Court granted summary judgment in favor of W.R. Grace and denied the Kaedings' motion in limine. The Kaedings appeal from this order.

Standard of Review

¶15 We review a district court's grant of summary judgment de novo, applying the same standard as the district court pursuant to Rule 56, M.R.Civ.P. Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785. In Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903 (citations omitted), we set forth our inquiry:

The movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. We review the legal determinations made by a district court as to whether the court erred.

Discussion

¶16 1. Did the District Court err in holding that the Kaedings' claims were not filed within the statute of limitations and in granting summary judgment for W.R. Grace?

¶17 An action for personal injury must be commenced within three years from the time that the claim or cause of action accrues. Section 27-2-204, MCA. A claim or cause of action accrues "when all elements of the claim or cause exist or have occurred, the right to maintain an action on the claim or cause is complete, and a court or other agency is authorized to accept jurisdiction of the action." Section 27-2-102(1)(a), MCA. Generally, lack of knowledge by the claimant of the claim or cause of action, or its accrual, does not postpone the beginning of the period of limitations. Section 27-2-102(2), MCA. However, when the facts constituting the claim are by their nature concealed or self-concealing, the period of limitations does not commence "until the facts constituting the claim have been discovered or, in the exercise of due diligence, should have been discovered by the injured party...." Section 27-2-102(3), MCA. Asbestosis is a latent disease that is, by its nature, self-concealing. Thus, the inquiry in this case is when Kaeding discovered or, in the exercise of due diligence, should have discovered that he had asbestosis.

¶18 This Court discussed the accrual of a cause of action for latent disease in Hando v. PPG Industries, Inc. (1989), 236 Mont. 493, 771 P.2d 956. In 1982, Hando was assigned the duty of painting inside the coal processing plant where she was employed. Hando, 771 P.2d at 958. In the years following her exposure to the paint, which was...