Louisville Trust Co. v. Johns-Manville Products Corp., JOHNS-MANVILLE

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtREED
Citation580 S.W.2d 497
Decision Date10 April 1979
Docket NumberJOHNS-MANVILLE
Parties1979 O.S.H.D. (CCH) P 23,449 The LOUISVILLE TRUST COMPANY, Ancillary Administrator of the Estate of William Virgil Sampson, Deceased, and Queen Products Company, Inc., Movants, v.PRODUCTS CORPORATION, Respondent.

Page 497

580 S.W.2d 497
1979 O.S.H.D. (CCH) P 23,449
The LOUISVILLE TRUST COMPANY, Ancillary Administrator of the
Estate of William Virgil Sampson, Deceased, and
Queen Products Company, Inc., Movants,
v.
JOHNS-MANVILLE PRODUCTS CORPORATION, Respondent.
Supreme Court of Kentucky.
April 10, 1979.

Page 498

Allen Schmitt, James M. Graves, Boehl, Stopher, Graves & Deindoerfer, Louisville, Thomas W. Henderson, Pittsburgh, Pa., for movants.

Lively M. Wilson, Stites, McElwain & Fowler, Louisville, for respondent.

REED, Justice.

The issue presented is whether this court should extend the so-called "discovery" rule applicable to malpractice cases in this jurisdiction to actions for personal injury from a latent disease caused by exposure to a harmful substance so far as computing the proper commencement date of the statute of limitations is concerned.

I

William Sampson died from malignant mesothelomia, a rare type of lung cancer, caused by breathing asbestos dust and fibers. Sampson had been an asbestos worker at Queen Products Company from 1957 to 1967 during which years he was exposed to asbestos fiber dust. In 1962 Queen Products became the exclusive agent of Johns-Manville and fabricated asbestos boards purchased from Johns-Manville, the manufacturer. From 1962 until he voluntarily terminated his employment with Queen in October 1967, he was exposed to asbestos fiber dust which resulted from sawing and planing Johns-Manville asbestos boards.

From October 1967 until his death in February, 1972, Sampson was not exposed to asbestos dust. He did not become ill until 1971 and lung cancer was not diagnosed until August 26, 1971. Sampson was told of the diagnosis in September 1971.

He was again hospitalized on February 5, 1972 and died later that day. Louisville Trust was appointed his administrator on August 24, 1972 and an action for personal injuries and wrongful death was commenced August 25, 1972.

The administrator's suit sought recovery from Johns-Manville on a theory of products liability arising from an alleged failure to adequately warn of known dangers associated with the inhalation of asbestos dust. Queen Products intervened as a plaintiff to secure reimbursement for workmen's compensation benefits paid to Sampson. The suit was tried. The jury verdict was in favor of Sampson's estate. The jury awarded $10,000 for pain and suffering and $80,000 as damages for wrongful death. From a judgment in conformity with this

Page 499

verdict, Johns-Manville appealed to the Court of Appeals. Although several grounds of error were asserted, the Court of Appeals found it necessary to deal with only one. It held that our decision in Columbus Mining Co. v. Walker, Ky., 271 S.W.2d 276 (1954), required the dismissal of the action as barred by the applicable one-year statute of limitations. 1 Sampson's estate moved this court for discretionary review which we granted. Our review is limited, of course, to the limitations issue which is the only assignment of error discussed and decided by the Court of Appeals. 2
II

The Court of Appeals had no alternative but to decide the case as it did. Columbus Mining Co. v. Walker, supra, is directly controlling unless we decide to overrule it. The Court of Appeals noted:

"The disease which caused Sampson's death is one which develops only after long exposure and he did not and could not have known of his illness until a year from the date of his last exposure had already passed. The logic of the decisions cited by (Sampson's estate) is therefore appealing."

The opinion concluded:

"In our opinion the resolution of the issue presented here is a matter of policy. It is the function of this court to follow the decisions of the highest court of the state and not to attempt to make new policy by overruling those decisions. This is especially true when the policy established by the highest court is of such recent vintage."

We agree that these statements correctly reflect the proper role of the Court of Appeals in our judicial system. We have concluded to extend the discovery rule of our medical malpractice cases to tort actions for injury resulting from a latent disease caused by exposure to a harmful substance.

III

Columbis Mining Co. v. Walker, supra, was decided by this court in 1954. In that case a worker contract silicosis which was not diagnosed until four years after his last exposure to silica dust. The worker could not be compensated under the Workmen's Compensation Act then in effect because neither he nor his employer had accepted coverage of the Act. He sued his employer in a common law action for failure to provide a safe place to work. This court held that

". . . since the basis of the action is the employer's wrongful conduct in not maintaining a safe place of employment, the commencement of the running of the statute should not be delayed beyond the date upon which the employee was last exposed. To hold otherwise would promote the prosecution of stale claims against the intent and spirit of statutes of limitations." Id. at 278.

This disposition was not in accord with the analysis adopted by the United States Supreme Court in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949). Urie involved a locomotive fireman who contracted silicosis from inhalation of silica dust over a thirty-year period. The defendant argued that the action was barred by the three-year statute of limitations prescribed in the Federal Employers' Liability Act. In considering the limitations...

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133 practice notes
  • Childs v. Haussecker, Nos. 97-0231
    • United States
    • Supreme Court of Texas
    • September 24, 1998
    ...ANN. § 60-3303 (claims for exposure to "harmful materials," including asbestos); Louisville Trust Co. v. Johns-Manville Prod. Corp., 580 S.W.2d 497, 499 (Ky.1979)(holding that discovery rule applies to tort actions for injury resulting from a latent disease caused by exposure to a harmful s......
  • Cloer v. Sec'y of Health, No. 2009–5052.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 5, 2011
    ...(1982) (same); Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87–88 (Ind.1985) (same); Louisville Trust Co. v. Johns–Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky.1979) (same); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 219 (La.Ct.App.1967) (same); Baysinger v. Schmid Prods. Co., 307 Md. 361, 5......
  • Insurance Co. of North America v. Forty-Eight Insulations, Inc., FORTY-EIGHT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 21, 1980
    ...Paper Prods. Corp., 97 Cal.App.3d, 881, 889, 159 Cal.Rptr. 113, 118 (1979); Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497 (1979); Harig v. Johns-Manville Prods. Corp., 284 Md. 70, 71, 394 A.2d 299, 300 We note, however, that a minority of cases have rejected this liber......
  • Anthony v. Koppers Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1981
    ...1352 (1979); Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 (1969); Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979). Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978......
  • Request a trial to view additional results
133 cases
  • Childs v. Haussecker, Nos. 97-0231
    • United States
    • Supreme Court of Texas
    • September 24, 1998
    ...ANN. § 60-3303 (claims for exposure to "harmful materials," including asbestos); Louisville Trust Co. v. Johns-Manville Prod. Corp., 580 S.W.2d 497, 499 (Ky.1979)(holding that discovery rule applies to tort actions for injury resulting from a latent disease caused by exposure to a harmful s......
  • Cloer v. Sec'y of Health, No. 2009–5052.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • August 5, 2011
    ...(1982) (same); Barnes v. A.H. Robins Co., 476 N.E.2d 84, 87–88 (Ind.1985) (same); Louisville Trust Co. v. Johns–Manville Prods. Corp., 580 S.W.2d 497, 501 (Ky.1979) (same); Penn v. Inferno Mfg. Corp., 199 So.2d 210, 219 (La.Ct.App.1967) (same); Baysinger v. Schmid Prods. Co., 307 Md. 361, 5......
  • Insurance Co. of North America v. Forty-Eight Insulations, Inc., FORTY-EIGHT
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • October 21, 1980
    ...Paper Prods. Corp., 97 Cal.App.3d, 881, 889, 159 Cal.Rptr. 113, 118 (1979); Louisville Trust Co. v. Johns-Manville Prods. Corp., 580 S.W.2d 497 (1979); Harig v. Johns-Manville Prods. Corp., 284 Md. 70, 71, 394 A.2d 299, 300 We note, however, that a minority of cases have rejected this liber......
  • Anthony v. Koppers Co., Inc.
    • United States
    • Superior Court of Pennsylvania
    • February 13, 1981
    ...1352 (1979); Miller v. Beech Aircraft Corp., 204 Kan. 184, 460 P.2d 535 (1969); Louisville Trust Co. v. Johns-Manville Products Corp., 580 S.W.2d 497 (Ky.1979). Harig v. Johns-Manville Products Corp., 284 Md. 70, 394 A.2d 299 (1978); Schiele v. Hobart Corp., 284 Or. 483, 587 P.2d 1010 (1978......
  • Request a trial to view additional results

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