Martinez v. Humble Sand & Gravel, Inc.

• Decision Date: 21 November 1996
• Docket Number: No. 08-95-00310-CV,08-95-00310-CV
• Citation: 940 S.W.2d 139
• Parties: Prod.Liab.Rep. (CCH) P 14,826 Jose L. MARTINEZ, et ux, Appellant, v. HUMBLE SAND & GRAVEL, INC., et al., Appellees.
• Court: Texas Court of Appeals

Page 139

940 S.W.2d 139

Prod.Liab.Rep. (CCH) P 14,826

Jose L. MARTINEZ, et ux, Appellant, v. HUMBLE SAND & GRAVEL, INC., et al., Appellees.

No. 08-95-00310-CV.

Court of Appeals of Texas,

El Paso.

Nov. 21, 1996.

Rehearing Overruled Dec. 19, 1996.

Lance Bradley, Provost & Umphrey, Beaumont, for Appellant.

Paul J. Holmes, Holmes, Harris & Jeffrey, P.C., Jim I. Graves, Mehaffey & Webber, Beaumont, Steve C. Ashley, Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, Inc., Odessa, Kenneth John Bower, Galveston, David M. Russell, Hinkle, Cox, Eaton, Cofield & Hensley, Amarillo, Barbara Barron, Mehaffey & Weber, J. Michael Dodson, Pate & Dodson, Beaumont, Edward J. Hennessy, Ronald T. Hancock, Nelson & Zeidman, Timothy J. Hogan, Bell & Murphy, P.C., Raymond T. Matthews, William C. Book, David Burns, Tekell, Book, Matthews & Limmer, Houston, W. Bruce Williams, Cotton, Bledsoe, Tighe & Dawson, Midland, Ryan A. Beason, Funderburk & Funderburk, Karl Van Gardner, David Brill, Hassard Bonnington, Houston, for Appellees.

Before LARSEN, McCLURE, and CHEW, JJ.

OPINION

McCLURE, Judge.

This is a plaintiff's appeal from an adverse summary judgment. We affirm in part and reverse and remand in part.

PROCEDURAL HISTORY

Jose Martinez filed suit on August 13, 1992, claiming he acquired silicosis, an occupational disease, due to his employment as a sandblaster. Martinez sued the defendants, who are various manufacturers and suppliers of sandblasting equipment and materials alleging negligence, strict products liability, and breach of warranty. Martinez additionally alleged conspiracy against defendants Lone Star Industries, Inc., Clemco Industries, Pauli & Griffin Company, Perma Sand Company, Inc., and The Vallen Corporation. Martinez' two children sued the defendants for loss of parental consortium. The defendants moved for summary judgment on the ground that all of the Martinez family claims were barred by the applicable statute of limitations; the defendants accused of conspiracy additionally moved for summary judgment as to the conspiracy claims on substantive grounds. The trial court granted summary judgment on limitations with regard to all of the Martinez family claims, and on unspecified substantive grounds on the conspiracy claims. Martinez appealed, asserting the discovery rule and alleging that there is a genuine issue of material fact with regard to the date he knew or should have known of his causes of action against the defendants. Martinez does not challenge the summary judgment in favor of the conspiracy defendants on the substantive grounds.

SUMMARY OF RELEVANT EVIDENCE

From 1978 until 1984, Martinez worked as a sandblaster for ICO, Inc., d/b/a Spincote Plastic Coating Company. He performed sandblasting work for another company, LTV, for two more years until 1986. He last did sandblasting work as a contract laborer for LTV during the month of February 1988. Martinez' brother, Florencio Martinez, was also a sandblaster and was hospitalized with silicosis in 1985. Martinez testified on deposition that in 1985, he knew his brother had silicosis and that it was caused by breathing dust during sandblasting. On September 18, 1989, Martinez filed a worker's compensation claim for "a lung disease arising out of and in the course of his employment at [sic] which has caused damage to his lungs and body generally." On the claim form, Martinez alleged the injury first manifested August 31, 1989. In his deposition, Martinez testified that he filed the claim as a "precaution" because he had "a minimum breathing problem" he associated with his work as a sandblaster. Martinez took the precaution because his brother, Florencio, had "the same illness, he was working around sand."

Martinez listed LTV as his employer at the time of his injury. LTV controverted the claim because it had no knowledge of the injury, there was no medical documentation, and because Martinez claimed February 1988 as his last exposure to the cause of the alleged injury, but had ceased full-time employment with LTV in 1986. The compensation claim was denied. Martinez delayed seeking medical treatment because the worker's compensation insurer would not pay his medical bills. Martinez was finally diagnosed with silicosis on September 23, 1991. He claims limitations was tolled until he saw a doctor in 1991. The defendants assert limitations commenced in 1989 when Martinez sought worker's compensation for occupational lung disease.

APPLICABLE LAW

As articulated in the seminal case of Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546 (Tex.1985), the standards for appellate review of a summary judgment are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Id. at 548-49.

A defendant must disprove, as a matter of law, at least one of the essential elements of each of the plaintiff's causes of action, or it must establish one or more of its defenses as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); Bell v. Showa Denko K.K., 899 S.W.2d 749, 752 (Tex.App.--Amarillo 1995, writ denied). When defendants as movants rely on the affirmative defense of the running of limitations, as they do in this case, they must establish when the cause or causes of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered in the exercise of reasonable diligence, the elements of his cause of action, or stated another way, the nature of his injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990); Willis v. Maverick, 760 S.W.2d 642, 646 (Tex.1988); see also, Martinez v. Humble Sand & Gravel, Inc., 860 S.W.2d 467, 470 (Tex.App.--El Paso 1993), rev'd on other grounds, 875 S.W.2d 311 (Tex.1994). The issue in this case, therefore, is whether the defendants established their entitlement to summary judgment, as a matter of law, by conclusively proving that no genuine issue of material fact exists as to when Martinez should have discovered the elements of his causes of action. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

LIMITATIONS IN LATENT ONSET DISEASE CASES

Section 16.003 of the Texas Civil Practice and Remedies Code provides that "a person must bring suit for ... personal injury ... not later than two years after the day the cause of action accrues." TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(a)(Vernon 1986). Negligence claims normally accrue when the duty of ordinary care is breached, and strict liability claims generally accrue on the date of the injury. Bell, 899 S.W.2d at 753. There is a "discovery" exception to these general rules of limitations. The discovery rule provides that the limitation period for a tort claim involving an injury of which the plaintiff could not, and did not, know at the time it occurred, does not begin to run until the injury done to the plaintiff is discovered, or until the plaintiff acquires knowledge of facts which, in the exercise of reasonable diligence, would lead to the discovery of the injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988); Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985). It is not necessary that a party know the details of the evidence by which to establish his cause of action. It is enough that he knows a cause of action exists in his favor. When a party learns of the existence of the cause of action, the party must utilize those means which the law provides for prosecuting or preserving the claim. Hoover v. Gregory, 835 S.W.2d 668, 671 (Tex.App.--Dallas 1992, writ denied). Thus, the discovery rule expressly mandates that the plaintiff exercise reasonable diligence to discover facts of negligence or omission. Willis, 760 S.W.2d at 644. The relevant inquiry therefore is not whether a plaintiff has actual knowledge of the particulars of a cause of action, rather, it is whether the plaintiff has knowledge of facts which would cause a reasonable person to diligently make inquiry to determine his or her legal rights. Arabian Shield Development Co. v. Hunt, 808 S.W.2d 577, 583 (Tex.App.--Dallas 1991, writ denied); Bell, 899 S.W.2d at 754.

While it may be a simple matter to determine when a plaintiff actually knew that he or she was afflicted with an occupational disease, application of the discovery rule standard is complicated in cases such as this because onset of disease or symptoms may not occur until months or even years after exposure. Almost fifty years ago, the United States Supreme Court considered this question in Urie v. Thompson, 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949), a silicosis case. The Court, considering application of limitations under the Federal Employers' Liability and Boiler Inspection Acts in existence at the time, reasoned that in occupational disease cases, "no specific date of contact with the harmful substance can be charged with being the date of injury, inasmuch as the injurious consequences of the exposure are the product of a period of time rather than a point of time; consequently the afflicted employee can be held to be 'injured' only when the accumulated effects of the deleterious substance manifest themselves...." Urie v. Thompson, 337 U.S. at 170 69 S.Ct. at 1025, 93 L.Ed. at 1293, quoting Associated Indem. Corp. v. Industrial Accident Commission, 124 Cal.App. 378, 381, 12 P.2d 1075. Holding otherwise, according to the Court's reasoning, would attach harsh consequences to "blameless ignorance." Urie, 337 U.S. at 170, 69 S.Ct. at 1024.

Thus, it has long been held that a party...