Marshall v. AC & S Inc.

• Decision Date: 11 December 1989
• Docket Number: No. 22129-9-I,22129-9-I
• Citation: 56 Wn.App. 181,782 P.2d 1107
• Court: Washington Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 12,343 James S. MARSHALL, Appellant, v. AC & S INC.; American Asbestos Textile Corp. a/k/a Amatex; Carey Canada, Inc.; Armstrong Cork, Inc.; The Celotex Corporation, successor in interest to Philip Carey Corp.; Briggs Manufacturing Co.; Panacon Corporation; Eagle-Picher Industries, Inc.; Fibreboard Corporation; Forty-Eight Insulation, Inc.; GAF Corporation, successor by merger with the Ruberoid Company, f/k/a General Analine and Film Corporation; Garlock, Inc.; H.K. Porter Co., Inc.; Johns-Manville Sales Corporation; Keene Corporation, successor by merger with Baldwin-Ehert-Hill; Nicolet Industries, Inc.; Owens-Corning Fiberglas Corporation; Owens-Illinois Corporation a/k/a Owens Illinois Glass Co.; Pittsburgh Corning Corporation; Rybestos-Manhattan, Inc.; Raymark Industries; Standard Asbestos and Insulation Co.; Union Asbestos and Rubber Co.; a/k/a Unarco, Respondents.

Page 181

56 Wn.App. 181

782 P.2d 1107, Prod.Liab.Rep. (CCH) P 12,343

James S. MARSHALL, Appellant, v. AC & S INC.; American Asbestos Textile Corp. a/k/a Amatex Carey Canada, Inc.; Armstrong Cork, Inc.; The Celotex Corporation, successor in interest to Philip Carey Corp. Briggs Manufacturing Co.; Panacon Corporation Eagle-Picher Industries, Inc.; Fibreboard Corporation Forty-Eight Insulation, Inc.; GAF Corporation, successor by merger with the Ruberoid Company, f/k/a General Analine and Film Corporation; Garlock, Inc.; H.K. Porter Co., Inc.; Johns-Manville Sales Corporation; Keene Corporation, successor by merger with Baldwin-Ehert-Hill; Nicolet Industries, Inc.; Owens-Corning Fiberglas Corporation; Owens-Illinois Corporation a/k/a Owens Illinois Glass Co.; Pittsburgh Corning Corporation; Rybestos-Manhattan, Inc.; Raymark Industries; Standard Asbestos and Insulation Co.; Union Asbestos and Rubber Co.; a/k/a Unarco, Respondents.

No. 22129-9-I.

Court of Appeals of Washington, Division 1.

Dec. 11, 1989.

Bradley R. Marshall, Seattle, for appellant.

Kent Van Den Berg, Thomas Sorenson, Gibson, Dunn & Crutcher, Cheryl Ann Zarzewski, Lee, Smart, Cook, Martin, Seattle, Asbestos Litigation Management, Algonquin, Ill., Raymark Industries, Manheim, Pa., Raytech Corp., Trumbull, Conn., Litigation Control Corp., Algonquin, Ill., Hillis, Clark, Martin, Mark S. Clark, Lauire Chyz, Gregory Keller, Seattle, for respondents.

PER CURIAM.

James S. Marshall appeals from a trial court order granting summary judgment in favor of the respondents, a group of asbestos manufacturers. A commissioner granted a court's motion on the merits pursuant to RAP 18.14. Marshall has moved to modify the commissioner's ruling. We grant the motion to modify only for the purpose of adopting the commissioner's analysis in this published opinion.

Marshall was exposed to asbestos products while employed at the Puget Sound Naval Shipyard in the early 1950's. Some 25 years later he suffered from a lingering cough and lung congestion which caused him to visit a physician. At this time, Marshall was living in Moses Lake, Washington. His local physician took X-rays and sent him to Harborview Medical Center in Seattle for further examination.

Medical documents in the record demonstrate that when Marshall visited Harborview his X-rays were sent to Dr. D. Christie, a radiologist, for consultation. Christie's review of the films resulted in a written diagnostic report that reads, "Bilateral pleural thickening with history of asbestos exposure. This is most compatible with asbestosis". The date of this document is July 12, 1982. There are also "progress notes" suggesting a second visit to Harborview by Mr. Marshall on July 13, 1982 and another copy of this radiology report with a drawing of lungs on it, suggesting that the report's contents were explained to the patient.

On November 19, 1985 Marshall filed suit against the named defendants, alleging personal injury as a result of the asbestos exposure. In Marshall's deposition of January 21, 1988, he stated unequivocally that he had been told he suffered from asbestosis by a doctor at Harborview on his first trip there. The only uncertainty he expressed concerned the date of that visit, which he stated was in " '82 or '83."

The defendants below moved for summary judgment, alleging that Marshall failed to file his suit within the three year statute of limitations applicable to the action. In response to that motion, Marshall filed an affidavit in which he claims that he "became aware of having physical problems in breathing in 1983, when I was living in Moses Lake." He goes on to state that his doctor in Moses Lake sent him to Harborview for tests but that he was never told by anyone that he had an asbestos related disease until 1985. The trial court granted the motion for summary judgment.

The Tort Reform Act of 1981 applies to this litigation and RCW 7.72.060(3) establishes the statute of limitations for filing suit thereunder:

Statute of limitation. Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause.

In the instant case, Marshall's products liability case is time barred if he discovered the harm and its cause more than three years prior to the date he filed suit on November 19, 1985. The trial court found that this knowledge was gained by Marshall on July 12, 1982, leading to entry of an order of summary judgment.

In a summary judgment proceeding, the reviewing court makes the same inquiry as the trial court. Hontz v. State, 105 Wash.2d 302, 311, 714 P.2d 1176 (1986). If the pleadings, depositions, admissions on file and the affidavits submitted demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law, then summary judgment is proper. CR 56(c); Hartley v. State, 103 Wash.2d 768, 774, 698 P.2d 77 (1985). Summary judgment involving statutes of limitation should be granted when there is no genuine issue of material fact as to when the relevant limitation period commenced. Nevils v. Aberle, 46...