Owens v. Lac D'Amiante Du Quebec, Ltee., Civ. A. No. 84-134.
| Decision Date | 18 March 1987 |
| Docket Number | Civ. A. No. 84-134. |
| Citation | 656 F. Supp. 981 |
| Parties | Willie OWENS and Ruth Owens, his wife v. LAC D'AMIANTE DU QUEBEC, LTEE., Carey Canada, Inc., the Celotex Corporation, GAF Corporation, Peltz-Rowley, Inc., Asbestos Textile Institute, Vermont Asbestos Group, Charter Consolidated, Ltd., Charter Consolidated Investments, Ltd., Charter Consolidated Services, Ltd., Central Mining Finance, Ltd., Consolidated Mines Selection Co., Ltd., British South Africa Co., Ltd., Cape Industries, Ltd., Cape Asbestos Industries, Ltd., Cape Asbestos Fibres, Ltd., Cape Asbestos South Africa Proprietary, Ltd., Cape Board & Panels, Ltd., Egnep (PTY), Ltd., Amosa, Ltd., Associated Minerals Corp., Transvaal Consolidated Land & Exploration Co., Ltd. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Hal C. Pitkow, Philadelphia, Pa., for plaintiffs.
Edward Geer, Margaret M. Chaplinsky and Joan M. Gaughan, Daniel Segal, Philadelphia, Pa., for defendants.
Plaintiffs Willie and Ruth Owens filed this asbestos-related personal injury action on January 9, 1984. Jurisdiction is by reason of diversity of citizenship; plaintiffs are citizens of New Jersey. Plaintiffs seek to recover compensatory and punitive damages allegedly caused by Mr. Owens's exposure to asbestos products at his place of work. Defendants Charter Consolidated P.L.C., Charter Consolidated Investments, Ltd., Central Mining Finance, Ltd., Consolidated Mines Selection Co., Ltd., and British South Africa Co., Ltd. (the "Charter defendants") and GAF Corporation, having properly preserved the statute of limitations defense, now move for summary judgment on that issue. Because there is no genuine issue of fact material to the statute of limitations issue and because the defendants are entitled to judgment as a matter of law, summary judgment will be granted in favor of the Charter defendants and GAF for the reasons now stated.
Although other aspects of this case may be governed by New Jersey law, Pennsylvania law is controlling as to whether the action is time-barred. See Cowgill v. Raymark Industries, 780 F.2d 324, 328 (3d Cir.1986); Ross v. Johns-Manville Corp., 766 F.2d 823, 826-28 (3d Cir.1985). A federal court sitting in diversity is bound by the choice-of-law rules of the forum state. In Ross, the Court of Appeals predicted that the Pennsylvania Supreme Court will hold that whether a foreign claim filed in Pennsylvania is time-barred in Pennsylvania will be determined under Pennsylvania law. See Ross, 766 F.2d at 826. The law of Pennsylvania will also determine the event from which the limitations period begins to run. See id. at 828.
Pennsylvania's statute of limitations requires that an action for damages for personal injury must be commenced within two years. 42 Pa.C.S.A. § 5524(2) (Purdons 1981). In a latent disease case where the cause of action is not discoverable despite the exercise of due diligence, the "discovery rule" applies. Under this objective test, the statute of limitations begins to run when "the plaintiff knows or should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful act of another." Wheeler v. Johns-Manville Corp., 342 Pa.Super. 473, 493 A.2d 120 (1985); see also Cowgill, 780 F.2d at 330; Price v. Johns-Manville Corp., 336 Pa.Super. 133, 485 A.2d 466 (1984); Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 135-37, 471 A.2d 493, 500 (1984).
Although defendants bear the burden of proof on the statute of limitations defense, where the conduct causing the injury occurred more than two years before the institution of the suit, plaintiffs bear the burden of proving that the discovery rule should apply. "The discovery rule does not reward ignorance, but `imposes a burden of diligence upon plaintiff to inform himself.'" Van Buskirk v. Carey Canadian Mines, Ltd., 760 F.2d 481, 498 (3d Cir.1985) (quoting Grabowski v. Turner & Newall, 516 F.Supp. 114, 118 (E.D.Pa.1980), aff'd sub nom., DaMato v. Turner & Newall, Ltd., 651 F.2d 908 (3d Cir.1981) (per curiam).
Through the exercise of reasonable diligence, Mr. Owens could have obtained personal knowledge of the injuries alleged and their cause as of July 1, 1981. On or about that date, plaintiffs' attorney had obtained sufficient knowledge of the injuries for the statute of limitations to begin to run against his clients' claims. Mr. Owens retained Jerry S. Finn, Esquire, sometime before May, 1981 to represent him in his attempt to receive a second award of workers' compensation benefits based on pulmonary disability incurred in the course of his employment at the GAF plant.1 (Finn deposition at 85, 95-96, 98). In connection with the workers' compensation claims, Attorney Finn sent plaintiff to Dr. Sidney Friedman for a medical examination. (Finn deposition at 141-42). This examination took place on May 29, 1981. (Exhibit D, Charter motion).
Dr. Friedman inquired about Mr. Owens's occupational history. Mr. Owens acknowledged that he had "heavy exposure to asbestos" during his employment and that he had developed a cough and shortness of breath years before his 1981 claim. (See Exhibit D, Charter motion). Upon completing the physical examination, Dr. Friedman sent a report to Mr. Finn. In that report, dated July 1, 1981, Dr. Friedman stated, "it is my opinion that Mr. Owens has a chronic bronchitis and pulmonary asbestosis (pneumoconiosis) ... and that these chest conditions are a result of the asbestos, dirt, dusts, chemicals and irritants in his work at GAF Corporation." (Exhibit D, Charter motion). Finn instituted a workers' compensation claim on Mr. Owens's behalf after receiving this report. (Finn deposition at 98).
Plaintiffs argue that this action is not time-barred because Mr. Owens did not see a copy of Dr. Friedman's report and did not learn of the diagnosis of asbestosis until March, 1982, after he was examined by another physician. Plaintiffs also argue that even if the statute of limitations began to run in July, 1981, their claims against the Charter defendants are not time-barred because they filed an action against the Cape defendants, the alleged alter-ego of the Charter defendants, in the Court of Common Pleas of Philadelphia County on April 12, 1982.
"The polestar of the Pennsylvania discovery rule is not a plaintiff's actual acquisition of...
To continue reading
Request your trial
-
Ingenito v. AC & S, Inc.
...but whether the information, through the exercise of due diligence, was knowable to the plaintiff. Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). The failure to make inquiry when information is available is failure to exercise......
-
Dreischalick v. Dalkon Shield Claimants Trust
...through the exercise of due diligence, was knowable to the plaintiff." Cochran, 633 A.2d at 1198, quoting Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). Furthermore, the failure to make inquiry when information is available is......
-
Baumgart v. Keene Bldg. Products Corp.
...knowable to the plaintiff." Ingenito v. AC & S, Inc., supra 430 Pa.Super. at 132, 633 A.2d at 1175, citing Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F.Supp. 981, 983 (E.D.Pa.1987), aff'd, 833 F.2d 306 (3d Cir.1987). The failure to make inquiry when the information is available is a failu......
-
Gunsalus v. Celotex Corp.
...despite the exercise of due diligence, the limitations period is tolled under the "discovery rule." Owens v. Lac D'Amiante du Quebec, Ltee., 656 F.Supp. 981, 982 (E.D.Pa.1987), aff'd without opinion, 833 F.2d 306 (3d Cir.1987). The statute of limitations in such a case begins to run when "t......
-
Defining the boundaries of the adverse domination doctrine: is there any repose for corporate directors?
...(stating that "the burden of proof is on plaintiff to show that the discovery rule applies"); Owens v. Lac D'Amiante Du Quebec, Ltee., 656 F. Supp. 981, 982 (E.D. Pa.) ("Although defendants bear the burden of proof on the statute of limitations defense ... plaintiffs bear the burden of prov......