Nelson v. Flintkote Co.

• Decision Date: 26 September 1985
• Court: California Court of Appeals Court of Appeals
• Parties: , Prod.Liab.Rep. (CCH) P 10,761 Andrew N. NELSON, Plaintiff and Appellant, v. The FLINTKOTE COMPANY, et al., Defendants and Respondents. B007113.

Page 562

218 Cal.Rptr. 562

172 Cal.App.3d 727, Prod.Liab.Rep. (CCH) P 10,761

Andrew N. NELSON, Plaintiff and Appellant, v. The FLINTKOTE COMPANY, et al., Defendants and Respondents.

B007113.

Court of Appeal, Second District, Division 7, California.

Sept. 26, 1985.

Rose, Klein & Marias, and David A. Rosen, Los Angeles, for plaintiff and appellant.

La Follette, Johnson, Schroeter & DeHaas, and David H. Loomis, Los Angeles, for defendant and respondent Flintkote Company.

Chase, Rotchford, Drukker & Bogust, Richard S. Kemalyan and Christopher B. Townsley, Los Angeles, for defendant and respondent Fibreboard Corp.

Joseph Bogan, and Craig D. Nelson, Glendale, for defendant and respondent Owens-Corning Fiberglas Corp.

Morgan, Wenzel & McNicholas, and David E. Campana, for defendant and respondent Armstrong World Industries, Inc. (formerly Armstrong Cork Co.)

Adams, Duque & Hazeltine, Catherine Hunt Ruddy and Richard C. Field, for defendants and respondents Keene Corp. and Keene Building Products Corp. Stearns & Nelson, and Rolf F. Teuber, for defendant and respondent Forty-Eight Insulations, Inc.

Norby & Brodeur, Patrick M. Kilker, and Alfred G. Lucky, Jr., for defendant and respondent Raymark Industries, Inc. (formerly Raybestos-Manhattan, Inc.).

Schell & Delamer, Fred B. Belanger, Kenneth B. Prindle, for defendant and respondent H.K. Porter Company, Inc.

Paul, Hastings, Janofsky & Walker, Alan K. Steinbrecher and Pamela M. Woods, for defendant and respondent GAF Corp.

Coyle, Marrone & Robinson, and Ronald D. Wilton, for defendant and respondent The Celotex Corp.

Yusim, Stein & Hanger, Andrew D. Stein, and Sandra Calin, for defendant and respondent Eagle-Picher Industries, Inc.

THOMPSON, Associate Justice.

Plaintiff Andrew Nelson, a victim of the progressive disease of asbestosis, appeals from an order of dismissal following the sustaining of a demurrer without leave to amend to his second amended complaint for damages against defendant manufacturers of asbestos materials.

In this case we determine that Code of Civil Procedure section 340.2, ¹ the special limitations statute for asbestos-related injuries, rather than section 340, subdivision (3), the general one-year tort limitations statute, properly applies to an asbestosis complaint filed after section 340.2's effective date by a plaintiff who is not yet disabled but received an informed diagnosis of asbestosis more than one year before section 340.2's enactment. We hold that section 340.2 properly applies to asbestosis victims, such as Nelson, whose complaints had not been adjudicated prior to its effective date. We, therefore, will reverse.

The allegations of the complaint which, on demurrer are accepted as true, establish that plaintiff was exposed to asbestos fibers and dust in his employment as a boiler inspector and operator from 1949 through 1956, and from 1963 to the present. In September 1976, a medical doctor informed plaintiff that he had suffered damage to his lungs and contracted the disease of asbestosis as a result of this exposure to asbestos. Notwithstanding the onset of this disease, plaintiff has continued working.

In 1979, the Legislature enacted section 340.2, a special statute of limitations governing asbestosis which provides that the one-year limitation period only commences to run after both disability and discovery. Section 340.2 (Stats.1979, ch. 513, § 1, pp. 1689-1690) provides in pertinent part as follows: "(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following: [p] (1) Within one year after the date the plaintiff first suffered disability. [p] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure. [p] (b) 'Disability' as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation."

Section 2 of chapter 513 provides: "The provisions of this act shall apply to those causes of action which accrued prior to the change in the law made by this act and have not otherwise been extinguished by operation of law."

Before the 1979 enactment of section 340.2, causes of action such as the one herein were governed by the general one-year tort statute of limitations set forth in section 340, subdivision (3), and the limitations period commenced at the time of the wrongful act. Then, in 1979, after the enactment of section 340.2, but prior to its effective date, Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 159 Cal.Rptr. 113, adopted a discovery rule. Velasquez held that negligence and strict liability claims for asbestos-caused injury accrued for purposes of section 340, subdivision (3), when the plaintiff knew or should have discovered "that he was suffering from a disease that had caused or was likely to cause him injury for which relief could be sought at law." (97 Cal.App.3d at p. 888, 159 Cal.Rptr. 113.)

On May 4, 1981, plaintiff filed his original complaint for damages for injuries arising from his work-related exposure to asbestos. Defendants herein demurred on the ground that the applicable statute of limitations was section 340, subdivision (3), and therefore plaintiff's causes of action were time-barred because his complaint was filed more than one year after receiving an "informed diagnosis" of his asbestos-related disease. Plaintiff argued that the new statute, section 340.2, applied and therefore his complaint was timely because it was filed prior to his becoming disabled from work as a result of the exposure to asbestos. The court rejected plaintiff's claim and sustained a demurrer without leave to amend to plaintiff's second amended complaint. This appeal followed the order of dismissal of the defendants herein.

DISCUSSION

Section 340.2 Properly Applies

The trial court erred in dismissing the complaint. Plaintiff's complaint was timely filed because section 340.2, not section 340, subdivision (3), properly applies to his causes of action.

Defendants' arguments to the contrary are based upon the mistaken premise that plaintiff's causes of action were automatically "extinguished by operation of law" in September 1977 since he had received an informed diagnosis as of September 1976. They contend the Legislature did not intend "retroactive" application of section 340.2 to plaintiffs, such as Nelson, who had discovered they had asbestosis more than one year before the effective date of the new statute. They further argue that such application would constitute an impermissible retroactive revival of a barred cause of action in violation of their vested right of immunity from liability.

Defendants' interpretation of the language of the enacting statute and the legislative intent have been rejected in Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 215 Cal.Rptr. 726, and Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 200 Cal.Rptr. 52, the only two appellate decisions construing section 340.2. Both concluded, as do we, that asbestosis plaintiffs, whose claims were not adjudicated prior to the effective date of section 340.2 (January 1, 1980), are not subject to section 340, subdivision (3). Instead, they are entitled to the benefits conferred by the new remedial special statute of limitations regardless of when they received an informed diagnosis.

As Puckett pointed out: "Both language in the enactment and the remarks of the author of the legislation support the conclusions that the Legislature intended the special statute to be remedial in purpose, subject not only to liberal construction but to retroactive application in a manner which would encompass the causes of action of as many victims of asbestosis as possible." (169 Cal.App.3d at pp. 1015-1016, 215 Cal.Rptr. 726.)

In order for an asbestos claim to have been " ' extinguished by operation of law,' " a court must have adjudicated the matter. (Id. at p. 1016, 215 Cal.Rptr. 726; Blakey v. Superior Court, supra, 153 Cal.App.3d at p. 106, 200 Cal.Rptr. 52; see also City of Los Angeles v. Superior Court (1977) 73 Cal.App.3d 509, 512-514, 142 Cal.Rptr. 292; Wedding v. People ex rel. Dept. of Transportation (1979) 88 Cal.App.3d 719, 152 Cal.Rptr. 181.) There is no automatic magical extinguishment of a cause of action by the mere passage of time. A statute of limitations is an affirmative defense which must be pleaded by a defendant and ruled on by a court. Where, as here, a court has not adjudicated the timeliness of the action with reference to section 340, subdivision (3), prior to the effective date of section 340.2, the claim is considered still pending or potential and governed by the changed rules for accrual of section 340.2. (Puckett v. Johns-Manville Corp., supra, 169 Cal.App.3d at pp. 1016-1017, 215 Cal.Rptr. 726; Blakey v. Superior Court, supra, 153 Cal.App.3d at p. 106, 200 Cal.Rptr. 52.)

The fact that the limitations period under the discovery rule of section 340, subdivision (3), may have expired before section 340.2's more liberal discovery and disability rule became effective and before any complaint was filed does not bar the action since no disability had occurred. In Puckett, plaintiff's action was not only filed two years after the diagnosis but also eight months before section 340.2 even became effective. Yet the court held that section 340.2 was intended to retroactively apply to this pending filed complaint. A fortiori, if section 340.2 applies to pending actions previously filed, it certainly was intended to apply to actions, such as in the case at bench, which were filed after its effective date.

Since there had been no extinguishment, there is no problem of an impermissible retroactive revival of a barred cause of action impairing defendants' vested...