Kiser v. A.W. Chesterton Co.

• Decision Date: 10 January 2013
• Docket Number: Record No. 120698.
• Citation: 736 S.E.2d 910,285 Va. 12
• Court: Virginia Supreme Court
• Parties: Phyllis H. KISER, Executrix of the Estate of Orvin H. Kiser, Sr., Deceased v. A.W. CHESTERTON CO., et al.

285 Va. 12

736 S.E.2d 910

Phyllis H. KISER, Executrix of the Estate of Orvin H. Kiser, Sr., Deceased

v.A.W. CHESTERTON CO., et al.

Record No. 120698.

Supreme Court of Virginia.

Jan. 10, 2013.

Robert R. Hatten, Newport News, (Donald N. Pattern; Hugh B. McCormick; William W.C. Harty, Newport News; Erin E. Jewell; F. Alex Coletrane; Gary W. Kendall; J. Gregory Webb, Charlottesville; E. Kyle McNew; Pattern, Wornom, Hatten & Diamonstein; MichieHamlett, on Briefs), for appellant.

Michael A. Pollard (Eric G. Reeves, Richmond; Brian J. Schneider; C. Stinson Mundy, Richmond; Michael C. McCutcheon; Stephen R. Jackson, Norfolk; David M. Sturm, Richmond; Jeffrey S. Poretz, Tysons Corner; R. Thomas Radcliffe, Jr.; Kay Millicent Brown; Kira A. Ligato; Timothy S. Brunick, Norfolk; Bonnie P. Lane; Henry N. Ware, Jr., Richmond; M.F. Connell Mullins, Jr., Richmond; Patricia Bugg Turner; W. Randolph Robins, Jr., Richmond; Moran Reeves & Conn; Baker & McKenzie; Willcox & Savage; TaddeoSturm; Miles & Stockbridge; Dehay & Elliston; Clarke, Dolph, Rapaport, Hull, Brunick & Garriott; Spotts Fain, on brief), for appellees.

Present: KINSER, C.J., LEMONS, MILLETTE, MIMS, McCLANAHAN, and POWELL, JJ., and LACY, S.J.

Opinion by Chief Justice CYNTHIA D. KINSER.

The United States Court of Appeals for the Third Circuit entered an order of certification requesting that this Court exercise jurisdiction pursuant to Article VI, Section 1 of the Constitution of Virginia and Rule 5:40, and answer the following question of law:

Whether, under Va.Code § 8.01–249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue [I] at the time of the mesothelioma diagnosis or [II] decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos-related disease.

(Numeral designators added).¹

We hold that when enacting Code § 8.01–249(4), the General Assembly did not abrogate the common law indivisible cause of action principle and that a cause of action for personal injury based on exposure to asbestos accrues upon the first communication of a diagnosis of an asbestos-related injury or disease by a physician.

RELEVANT FACTS AND PRIOR PROCEEDINGS

The pertinent facts are not in dispute and are taken from the opinion in Kiser v. A.W. Chesterton Co., 770 F.Supp.2d 745 (E.D.Pa.2011), and the certification order in Kiser v. A.W. Chesterton Co., Rec. No. 11–1986 (3d Cir. March 26, 2012). Orvin H. Kiser, Sr. worked at a “DuPont” plant in Waynesboro, Virginia from 1957 to 1985, during which time he was exposed to asbestos. After being diagnosed with nonmalignant pleural thickening and asbestosis in 1988, he filed a timely suit in the United States District Court for the Western District of Virginia in 1990 against numerous asbestos manufacturers,sellers, and distributors, seeking damages for his employment-related exposure and resulting medical condition. In 2010, that action was voluntarily dismissed.

In November 2008, Kiser was diagnosed with mesothelioma, an asbestos-related malignant cancer of the lung lining. He died the following March. Acting as executrix of her deceased husband's estate, Phyllis H. Kiser (the Executrix), filed a wrongful death action in October 2010 in the United States District Court for the Western District of Virginia against twenty-one defendants, none of which were parties to the first action. See Kiser, 770 F.Supp.2d at 746–47. The Executrix alleged that Kiser's exposure to the defendants' products during his employment at the DuPont plant caused Kiser's development of mesothelioma and subsequent death. Id. The Judicial Panel on Multidistrict Litigation transferred the action to the United States District Court for the Eastern District of Pennsylvania.

The various defendants filed motions to dismiss, asserting that the applicable statute of limitations barred the Executrix's action. Id. at 747. The defendants asserted that, under the indivisible cause of action rule, the current action accrued at the time of Kiser's diagnosis of asbestosis and pleural thickening and that the action was therefore barred by the two-year statute of limitations set forth in Code § 8.01–243(A). Id. The Executrix, however, maintained that Code § 8.01–249(4) “abolished the indivisible cause of action theory and that a new statute of limitations was triggered when ... Kiser was diagnosed with mesothelioma” in 2008. Id.

Citing Virginia case law that recognized the indivisible cause of action principle, the district court held that Code § 8.01–249(4) instituted a discovery rule for the accrual of asbestos-related causes of action but did not supplant the indivisible cause of action rule with a “separate disease rule.” Id. at 749–50. According to the district court, “Virginia adheres to the indivisible cause of action theory and the statute of limitations for all asbestos-related claims begins to run on the initial date of diagnosis by a physician of any asbestos-related disease.” Id. at 751. The district court therefore dismissed the action as barred by the statute of limitations. Id.

The Executrix appealed to the United States Court of Appeals for the Third Circuit. In its certification order, the Third Circuit stated that the timeliness of the Executrix's cause of action “turn[ed] on an unresolved question of Virginia law: whether the indivisible cause of action theory applies to distinct and independent asbestos-related diseasesstemming from the same exposure to asbestos.” While the Third Circuit recognized Virginia's adherence to the indivisible cause of action rule in personal injury cases, it noted the absence of a ruling from this Court regarding the application of that principle to asbestos-exposure cases after the enactment of Code § 8.01–249(4).

Rule 5:40(a) requires that a certified question be “determinative” in “any proceeding pending before the certifying court.” The certified question is determinative because whether the Executrix's wrongful death action is time-barred turns on whether the action accrued at the time of Kiser's asbestosis diagnosis or at the time of his mesothelioma diagnosis. Accordingly, we accepted the certified question of law by order entered June 8, 2012.

ANALYSIS

The certified question focuses specifically on Code § 8.01–249(4) and asks when, pursuant to that statute, “a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue.” To answer that question and to understand the scope and purpose of Code § 8.01–249(4), it is instructive to review first the law in effect in 1985 when the General Assembly enacted subsection 4. Prior to 1985, two distinct, relevant principles existed in the Commonwealth with respect to personal injury actions based on exposure to asbestos. First, the accrual of a cause of action for such injury was governed by Code § 8.01–230, which at that time provided: “In every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person.” ² FormerCode § 8.01–230 (Repl. vol. 1984) (emphasis added). Construing the “statutory word ‘injury’ to mean positive, physical or mental hurt to the claimant, not legal wrong to him,” we tied the running of the statute of limitations “to the fact of harm to the plaintiff, without which no cause of action would come into existence.”³Locke v. Johns–Manville Corp., 221 Va. 951, 957–58, 275 S.E.2d 900, 905 (1981). Because a cause of action does not arise until an injury to a plaintiff can be shown, see Louisville & Nashville Railroad Co. v. Saltzer, 151 Va. 165, 170–71, 144 S.E. 456, 457 (1928), the relevant question for purposes of the statute of limitations was: “When was the plaintiff hurt?” Locke, 221 Va. at 958, 275 S.E.2d at 905.

In a cause of action for exposure to asbestos resulting in mesothelioma, the answer to that question depended on competent medical evidence pinpointing the precise date the cancer first existed, which would be the first date it was capable of causing injury. Id. at 959, 275 S.E.2d at 905. That determination, however, was not tantamount to employing a “discovery rule, which triggers the running of the statute only when the injury is discovered or should have been discovered in the exercise of reasonable diligence.” Id. As the Court recognized, the adoption of such a rule was a decision for the General Assembly to make. Id. at 959, 275 S.E.2d at 905–06.

In 1985, the General Assembly did just that by adding subsection 4 to Code § 8.01–249, which contains exceptions to the accrual rule set forth in Code § 8.01–230 for certain causes of action. 1985 Acts ch. 459. Code § 8.01–249(4) states:

The cause of action in the actions herein listed shall be deemed to accrue as follows:

....

4. In actions for injury to the person resulting from exposure to asbestos or products containing asbestos, when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician. However, no such action may be brought more than two years after the death of such person[.]

With the enactment of subsection 4, the question asked in Locke, when was a plaintiff hurt by exposure to asbestos, was no longer relevant to determining the accrual date of that particular cause of action. Instead, the cause of action accrued, and thus the statute of limitations began to run, when a physician first communicated a diagnosis of one of the specified diseases or of another “disabling asbestos-related injury or disease” to a plaintiff. Id.

The second pertinent principle that existed in 1985 when the General Assembly added subsection 4 to Code § 8.01–249 was the common law indivisible cause of action rule. “[A] cause of action is a set of operative facts which, under the substantive law, may give rise to a right of...