Larson v. Johns-Manville Sales Corp.
| Decision Date | 23 February 1987 |
| Docket Number | Docket Nos. 75933,JOHNS-MANVILLE |
| Citation | 427 Mich. 301,399 N.W.2d 1 |
| Court | Michigan Supreme Court |
| Parties | , 55 USLW 2362, Prod.Liab.Rep.(CCH)P. 11,212 Elizabeth A. LARSON, Personal Representative of the Estate of Lawrence E. Larson, Deceased, Plaintiff-Appellant, v.SALES CORPORATION, et al., Defendant-Appellees. Lucille E. REVARD, Administratrix of the Estate of Leeman George Revard, Deceased, Plaintiff-Appellant, v.SALES CORPORATION, et al., Defendant-Appellees. Terry L. BRIMMER, Executor of the Estate of Lawrence Brimmer, Deceased, Plaintiff-Appellant, v.SALES CORPORATION, et al., Defendant-Appellees. Hazel E. GLAZIER, Executrix of the Estate of George Glazier, Deceased, Plaintiff-Appellant, v. FIBREBOARD CORPORATION, et al., Defendant-Appellees. to 75936. |
Theodore Goldberg, Arthur L. Petersen, Saginaw, brief of appellants.
Collins, Einhorn & Farrell, P.C., Clayton F. Farrell, Noreen L. Slank, Southfield, for defendants-appellees Celotex Corp., Carey Canada, Inc., Pittsburgh Corning Corp., Keene Corp., Keene Building Products Corp., Eagle-Picher Industries, Owens-Illinois Inc., Armstrong World Industries and Fibreboard Corp.
Sachs, Nunn, Kates, Kadushin, O'Hare, Helveston & Waldman, P.C. by Barry P. Waldman, Detroit, for Michigan Trial Lawyers Ass'n, amicus curiae, on behalf of plaintiffs-appellants.
Bockoff & Zamler, P.C. by Daryl Royal, Patrick J. Bruetsch, Southfield, Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen, & Bartnick by Sheldon L. Miller, Detroit, Law Offices of Michael B. Serling, P.C. by Michelle E. Areeda, Michael B. Serling, Birmingham, Baron & Budd by Russell W. Budd, Dallas, Tex., for amicus curiae brief in support of plaintiff.
The issues in this case are: 1) when does a cause of action for asbestosis accrue in Michigan, and 2) does a failure to bring a suit for asbestosis within the statutory period bar an action for cancer which subsequently develops as a result of the same exposure to asbestos. We hold: 1) the cause of action for asbestosis accrues in accordance with the "discovery rule," i.e., from the time the claimant knows or should have known of the disease, rather than at the time of the exposure to asbestos or at the time of diagnosable injury; and 2) if a claimant chose not to bring an action for asbestosis, a later action to recover for cancer accrues at the time the claimant knows or should have known of the cancer. 1
The four cases before us which were consolidated for appeal are all wrongful death actions brought by the personal representatives of the estates. All are asbestos-related products liability cases in which defendants were granted summary judgment on the basis of the statute of limitations.
Decedents were all insulation workers who were exposed to asbestos and who subsequently developed asbestosis. None of the workers had filed a personal injury action before his death, although each was aware of his disease for many years. Two of these men, Glazier and Revard, also developed cancers which may be related to the asbestos exposure. The chart in figure 1 below summarizes the relevant data.
Figure 1
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Knew or Should
Have Known of Knew
Asbestosis or Should
No Later Suit-Time Have Known Date of Date of
Name Than.... Barred of Cancer Death Filing
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Larson 9/7/72 9/7/75 no cancer 8/26/77 1/10/80
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Brimmer 7/26/67 7/26/70 no cancer 4/14/78 1/10/80
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Revard 2/10/71 2/10/74 1/77 7/6/77 10/31/79
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Glazier 3/28/73 3/28/76 Approx. 11/1/77 10/31/79
10/20/77
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The trial court held that summary judgment was appropriate because in order to maintain an action under M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, the wrongful death act, the decedent himself must have been able to maintain the action but for his death. Since in all cases personal injury suits would have been barred before the date on which the wrongful death actions were filed, the wrongful death actions likewise were barred. The trial court also determined that the causes of action for cancer accrued at the same time as the causes of action for asbestosis.
The Court of Appeals panel unanimously held that under Hawkins v. Regional Medical Laboratories, 415 Mich. 420, 329 N.W.2d 729 (1982), the "limitation period [in the wrongful death actions] is governed by the provision applicable to the liability theory of the underlying wrongful act." Larson v. Johns-Manville Sales Corp., 140 Mich.App. 254, 264, 365 N.W.2d 194 (1985). Two members of the panel then concluded that in the Revard and Glazier suits, the claims for cancer were likewise barred by the statute of limitations. The third member dissented, arguing that the discovery rule of accrual should be applied and that under this rule the claims for cancer were timely.
Asbestos is a term used to describe several naturally occurring fibrous materials which combine high resistance to heat with great strength. For these reasons, asbestos has been extensively used in a wide variety of products. Green, The inability of offensive collateral estoppel to fulfill its promise: An examination of estoppel in asbestos litigation, 70 Iowa L.R. 141, 153 (1984). The inhalation of asbestos fibers in the occupational setting is known to cause or increase the risk of three diseases: asbestosis, lung cancer, and mesothelioma. Mansfield, Asbestos: The cases and the insurance problem, 15 Forum 860, 862 (1980).
Asbestosis is the most common of the asbestos-related diseases. It is a nonmalignant response to inhaled asbestos fibers characterized by scarring. This disease is not always fatal, but can be disabling because of the decline in pulmonary function. The time between exposure to asbestos and the development of the disease is between ten and forty years. Mansfield, supra at 862; Special Project, An analysis of the legal, social and political issues raised by asbestos litigation, 36 Van.L.R. 573, 579, n. 10 (1983). Lung Cancer
This is a primary cancer of the lung. The connection between exposure to asbestos and the development of lung cancer is premised on epidemiological studies showing an increase in the frequency of lung cancer among those exposed to asbestos. The combination of cigarette smoking and exposure to asbestos appears to present a greater risk of lung cancer than does either alone. Harrison's Principles of Internal Medicine (New York: McGraw Hill, 8th ed., 1977), pp. 1386, 1380.
This is a malignant tumor which arises in the membrane lining the lungs and the chest cavity. 36 Van.L.R. 579, n. 11. It appears to develop with only minimal exposure to asbestos. The latency period between exposure to asbestos and onset of the disease is twenty-five to forty years. Mansfield, supra at 864.
The Court of Appeals found in all cases that the cause of action accrued at the time of the alleged wrongdoing rather than at the time the resultant harm was discovered. Larson, supra at 266, 365 N.W.2d 194. We now hold that the discovery rule is the proper method for determining the accrual date in these cases.
The relevant statute provides that a person has three years in which to bring a products liability action after the claim accrues. 2
Under the general accrual statute, M.C.L. Sec. 600.5827; M.S.A. Sec. 27A.5827, "the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results." 3 In order to construe this language, we look to earlier Supreme Court cases considering accrual and the policies implicated by the statutes.
In Connelly v. Paul Ruddy's Co., 388 Mich. 146, 151, 200 N.W.2d 70 (1972), we interpreted the accrual statute and stated that the "wrong" which triggers the statute is not the date of the breach of duty, but the date on which an injury results from that breach. If the statute were interpreted as requiring accrual from the date of the breach of duty, negligence actions would be barred before they could be brought.
The rationale behind the Connelly interpretation of the accrual statute is very similar to that behind the discovery rule. Applying a discovery rule to the accrual date would mean that a claim could not be barred by the statute of limitations before a plaintiff knew or should have known of the disease.
This Court has explicitly adopted a discovery rule in certain circumstances. In Johnson v. Caldwell, 371 Mich. 368, 379, 123 N.W.2d 785 (1963), this Court held that the cause of action for medical malpractice did not accrue until the plaintiff discovered or should have discovered the wrongful act. In another case based on negligent misrepresentation, the Court held that the "statute of limitations does not begin running until the point where plaintiff knows or should have known of this negligent misrepresentation." Williams v. Polgar, 391 Mich. 6, 25, 215 N.W.2d 149 (1974). We have suggested that in consumer actions against manufacturers the statute of limitations should not begin to run until a "plaintiff discovers or in the exercise of reasonable diligence should have discovered his loss." Parish v. B.F. Goodrich Co., 395 Mich. 271, 281, 235 N.W.2d 570 (1975). We have also applied...
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