Mergenthaler v. Asbestos Corp. of America, Inc.

• Decision Date: 26 June 1987
• Parties: Charles MERGENTHALER, et al., Randolph W. Pannell, Robert Logan, et al., Kenneth Stagg, Donald E. McDaniel, et ux., Elizabeth J. Tull, et al., Paul G. Nichols, et al., Walter James Moyer and Douglas Moyer, Plaintiffs, v. ASBESTOS CORP. OF AMERICA, INC., et al., Defendants. . Submitted:
• Court: Delaware Superior Court

Page 272

534 A.2d 272

Charles MERGENTHALER, et al., Randolph W. Pannell, Robert

Logan, et al., Kenneth Stagg, Donald E. McDaniel, et ux.,

Elizabeth J. Tull, et al., Paul G. Nichols, et al., Walter

James Moyer and Douglas Moyer, Plaintiffs, v. ASBESTOS CORP. OF AMERICA, INC., et al., Defendants.

Superior Court of Delaware,

New Castle County.

Submitted: June 26, 1987.

Decided: Sept. 14, 1987.

On Motion of Defendant Haveg Industries, Inc. for Summary Judgment with Respect to Certain Pre-1949 Employees--GRANTED.

Thomas C. Crumplar, and Mary Ann Matuszewski, of Jacobs & Crumplar, P.A., Wilmington, for plaintiffs.

Mary Pat Trostle, and Philip B. Bartoshesky, of Biggs & Battaglia, Wilmington, for defendant Haveg Industries, Inc.

TAYLOR, Judge.

Plaintiffs in eight suits assert causes of action alleging that they suffer from asbestos-related diseases which were caused in whole or in part by exposure to asbestos at the Marshallton plant of Haveg Industries, Inc. [Haveg]. Certain of the plaintiffs were exposed to asbestos at that plant only prior to June 15, 1949 and were not employed by Haveg thereafter.

Haveg has moved for summary judgment with respect to claims where asbestos exposure occurred while plaintiffs were employed by Haveg.

The issue is whether the asbestos-related diseases of these plaintiffs, which according to the allegations of plaintiffs are related to their pre-June 15, 1949 exposure to asbestos at the Haveg plant, are permissible tort claims or are barred because of availability of workmen's compensation.

The parties are in agreement that under Delaware law, an employee may not sue the employer for an injury or occupational disease for which the employee is entitled to recover workmen's compensation. 19 Del.C. § 2304; cf. Kofron v. Amoco Chemical Corp., Del.Supr., 441 A.2d 226 (1982). The parties place emphasis on June 15, 1949 because on that date the Delaware Workmen's Compensation Law was amended to include diseases such as those caused by asbestos exposure as compensable occupational diseases. 47 Del.Laws Ch. 270. ¹ Prior to that date compensable occupational diseases were listed as specific diseases, and the enumeration did not include asbestos-related diseases. 41 Del.Laws Ch. 241.

This decision involves plaintiffs whose only employment with Haveg ceased before June 15, 1949 and in the course of employment were exposed to asbestos. Those plaintiffs divide into two groups: (1) those who had employment-related asbestos exposure after June 15, 1949, and (2) those who after June 15, 1949 had asbestos exposure in the course of employment with a different employer covered by workmen's compensation. Since all of these plaintiffs assert that their exposure to asbestos occurred during employment with Haveg, their claims, if proved, satisfy the definition of that requirement of 19 Del.C. § 2301(4).

I.A.

Plaintiffs' theory is that the Workmen's Compensation Law did not provide compensation for asbestos-related diseases before the 1949 amendment and, therefore, no bar exists against a tort action based solely on pre-1949 exposure. This apparently is bottomed on the proposition that the bar which prevents an employee from bringing a tort action against the employer (19 Del.C. § 2304) is co-extensive with the right of the employee to receive compensation under the Workmen's Compensation Law. Cf. Hendrickson v. Continental Fibre Co., Del.Super., 136 A. 375 (1926); Battista v. Chrysler Corp., Del.Super., 454 A.2d 286 (1982). Applying that proposition, plaintiffs argue that the law which was in effect at the time of exposure to asbestos did not confer the right to workmen's compensation and, hence, did not bar the right to pursue a tort claim.

Haveg's contention is that the right to workmen's compensation for an asbestos-related disease stems from the time when the disease became evident. Applying that premise, Haveg contends that since in all of the present cases the disease became evident after 1949, workmen's compensation has been available for that disease and, hence, a tort claim based on that disease is barred.

In general, workmen's compensation applies to an injury which is traceable to a specific accident or event. In those cases, eligibility to receive compensation can be readily determined from the nature of the occurrence, the time for filing claims involving the injury can be ascertained and the cause and nature of the injury can be determined. However, a disease-producing substance such as asbestos does not produce physical symptoms at the time of exposure. Studies indicate that there may be a lapse of many years after exposure to asbestos before an asbestos-related disease manifests itself. Therefore, most of the workers exposed to such disease-producing conditions have had no evidence of disease within the statutory time limits for claims under the 1949 amendment measured from time of exposure.

Prior to 1955, all requirements relating to occupational disease claims were determined with reference to the time of last exposure to the disease-producing condition. ² An amendment in 1955 permitted a claim for occupational disease compensation to be filed within one year after acquiring knowledge that the disease could have been job-related, if filed within five years after the last exposure, but retained the other requirements of 19 Del.C. § 2301 and § 2342. ³ 50 Del.Laws Ch. 339, Sec. 19. An amendment in 1959 permitted notice of the disease to be given to the employer within six months after the worker acquired knowledge that the disease could have been job-related, but retained the requirement of 19 Del C. § 2301. ⁴ 52 Del.Laws Ch. 101, Sec. 1. The amendments in 1974 finally eliminated the remaining references to time of exposure, making the date of acquiring knowledge that the disease could have been related to employment the determinant for all purposes.

These cases were filed in 1981 through 1984. Such suits must be filed within two years after plaintiff had knowledge that his physical condition was attributable to asbestos exposure. Stagg v. Bendix Corp., Del.Super., 472 A.2d 40 (1984). Therefore, for purposes of these motions, it will be assumed that plaintiffs' asbestos-related disease first became manifest not earlier than 1979--after the present pertinent workmen's compensation provisions became effective.

Plaintiffs argue that their right to receive workmen's compensation must be determined according to the Workmen's Compensation Law which was in effect at their last asbestos exposure at Haveg and that to apply the statute as amended after the last exposure would be to violate the principle which forbids retroactive application of a statute. This argument must be rejected for several reasons. First, because of the late manifestation of the disease, plaintiffs had no claim which they could assert before 1979 and, therefore, their claim did not arise under the prior statute. Second, the redefining of the requirements for occupational disease claims by utilizing date of manifestation of disease rather than date of exposure is not impermissible retroactivity. Third, this redefining is a permissible restructuring of rights under Workmen's Compensation Law.

Even though asbestos-related diseases became compensable occupational diseases by the 1949 amendment to the Workmen's Compensation Law, plaintiffs could not have filed a claim or sued at that time if there was no indication that plaintiffs had developed a disease related to asbestos exposure or disability therefrom. A cause of action exists when the right to bring suit or when a present right to a remedy exists. 54 C.J.S., Limitation of Actions § 109; 54 C.J.S. Limitation of Actions § 199; Keller v. President, Directors and Company, etc., Del.Super., 24 A.2d 539 (1942). Damage or loss is an essential element for such claim. Prosser and Keeton on The Law of Torts, 5th Ed., § 30. In the case of claims for workmen's compensation for occupational disease, the right to compensation depends upon proof that claimant was suffering from the disease resulting in disability. 19 Del.C. § 2304, § 2324, § 2325 and § 2326; Alloy Surfaces Company v. Cicamore, Del.Supr., 221 A.2d 480 (1966).

The underlying premise is that plaintiffs' asbestos-related disease did not manifest itself prior to 1979. Plaintiffs had no claim prior to 1979 because they had no manifestation of the asbestos-related disease. Hence, plaintiffs' claims arose after the present law became effective.

Applying the standard provided by the amendment, i.e., time of manifestation of the disease, these claims do not require retroactive application of the statute. "A statute is not made retroactive merely because it draws upon antecedent facts for its operation." Cox v. Hart, 260 U.S. 427, 43 S.Ct. 154, 67 L.Ed. 332 (1922); cf. Reynolds v. United States, 292 U.S. 443, 54 S.Ct. 800, 78 L.Ed. 1353 (1934); Benjamin v. Hunter, 10th Cir., 176 F.2d 269 (1949); Alexander v. Robinson, 5th Cir., 756 F.2d 1153 (1985); 2 Southerland Stat. Const. § 41.01 at 338 (4th Ed.). I conclude that the retroactivity principle which plaintiffs would have the Court apply in order to validate these claims as permissible tort claims does not apply to these claims because they arose after the 1974 amendments.

B.

There are additional reasons why the principle of retroactivity does not bar workmen's compensation for these claims. Not all retroactive statutory applications are impermissible. 2 Sutherland Stat. Const. § 41.01 at 338 (4th Ed). The question of validity of such a statute rests on "subtle judgments concerning the fairness of applying the new statute". Id., § 41.05 at 364. One consideration is whether the new statute, if applied retrospectively, would interfere with, impair, or divest vested rights. Id., § 41.06 at 375. Another consideration is whether that application would impair or violate obligations of contract. Id., § 41.07 at 386. These considerations may be moderated or overcome if ...