Pecorino v. Raymark Industries, Inc.
| Decision Date | 29 December 1988 |
| Docket Number | No. 09-88-029,09-88-029 |
| Citation | 763 S.W.2d 561 |
| Parties | Mertice Marie PECORINO, Individually and as Personal Representative of the Estate of Anthony Pecorino, Deceased Appellant, v. RAYMARK INDUSTRIES, INC., et al., Appellees. CV. |
| Court | Texas Court of Appeals |
Summary judgment appeal.
This appeal is taken from a summary judgment proceeding. A summary judgment was granted in favor of the defendants below, who are Appellees and Cross-Appellants here. The granting of the motion for summary judgment was based upon the statute of limitations in an asbestos-mesothelioma case. The Appellant, at the threshold of her brief, characterizes this appeal thus:
"This is an appeal from a Summary Judgment granted in favor of the Defendants based upon the statute of limitations in an asbestos induced mesothelioma lawsuit." (Emphasis added)
Anthony Pecorino had worked as an insulator at the refinery operated by Texaco, in Port Arthur. Mr. Pecorino was also known as "Tony Pecorino". He had worked as an insulator between the years of 1934 and 1977. During that period of time, he worked with and was exposed to asbestos-containing products, being the products manufactured by the defendants listed below. Mr. Pecorino contracted the disorder or disease of asbestosis at some time prior to November 25, 1980. On November 25, 1980, Tony Pecorino and his wife, Mertice Marie Pecorino, filed suit against the following corporations or entities that had manufactured the asbestos products which had caused his asbestosis. The defendants, in the 1980 lawsuit, were:
"1. Celotex Corporation
2. Owens-Corning Fiberglass Corporation
3. Eagle Picher Industries, Inc.
4. Pittsburg Corning Corp.
5. Unarco Industries
6. GAF Corporation
7. Armstrong World Industries, Inc.
8. Standard Asbestos Mfg. & Insulating Co.
9. Crown Cork and Seal Company, Inc.
10. Combustion Engineering, Inc.
11. Johns-Manville Sales Corporation".
Later, on November 17, 1981, Mr. and Mrs. Pecorino settled their 1980 lawsuit and causes of action for the sum of $125,000. A full and final release was signed and delivered on that date. The release has a crucial, important and governing effect on this appeal. More will be written about the said release later in this opinion.
At some time, in the early part of 1985, Mr. Pecorino learned that he was a victim of malignant mesothelioma. In 1985, Mr. and Mrs. Pecorino brought a suit in the United States District Court in the Eastern District of Texas. This later lawsuit was voluntarily non-suited by the plaintiffs therein. According to Appellant's brief, this was done in order to refile in the State Courts of Texas to have and require the Texas State Courts to determine Texas law.
Later, on July 24, 1985, Tony Pecorino died as a result of the growing, malignant mesothelioma. In March of 1986, Mrs. Pecorino filed suit against about 18 asbestos or asbestos products manufacturers. Mrs. Pecorino, individually and in her representative capacity, non-suited six of the original defendants in this suit. The remaining defendants below filed motions for summary judgment. The motions for summary judgment were based generally on three fundamental propositions. One, that the prior release, delivered for the $125,000, released any future claims including a claim for mesothelioma; two, the release contained an assignment, which said assignment, according to the defendants below, assigned the cause of action that Mrs. Pecorino, individually and in her representative capacity, possessed, if any, to the settling defendants in the first 1980 case; three, that the statute of limitation has run on any claim based on mesothelioma, arguing that there was but one cause of action based upon the same duty owed to Tony Pecorino and a violation or breach of that duty and that, under the facts in this particular case, there was but one cause of action for the asbestosis and the asbestos-induced or asbestos-caused mesothelioma.
The district judge, after hearing the totality of the motion, granted the motion for summary judgment based on the statute of limitations. The district judge declined to grant the motions for summary judgment based on the prior release and on the assignment of the cause of action to the then settling, 1980 defendants. In capsule form, the district court found and held this instant case, filed by the Appellant to recover for mesothelioma which was brought about, induced or caused by exposure to asbestos, was barred by the statute of limitations. Therefore, the trial court ruled the defendants in the instant case were entitled to judgment in their favor as a matter of law.
Appellee, Raymark Industries, Inc., took the basic position that, on November 17, 1981, Mr. and Mrs. Pecorino settled their claims for any and all illnesses, personal injuries and damages arising out of, or in any way connected with, the use of, or exposure to, various insulating materials and the products that were manufactured, sold or distributed by the then settling defendants. Raymark Industries, Inc., maintains that this was the consideration for the payment of the $125,000 to the Pecorinos. Raymark Industries, Inc., further argues that the Pecorinos and their 1980-1981 attorney of record, the Honorable Walter Umphrey, executed a full and final release, following which the court then entered a take-nothing judgment in December of 1981, on the basis of the settlement and release of all claims that were related to asbestos exposure.
At sometime in 1985, Mr. and Mrs. Pecorino filed a lawsuit in the United States District Court alleging, then, that Mr. Pecorino, who was still living, had mesothelioma. This federal court proceeding was voluntarily non-suited. Mertice Marie Pecorino then filed this lawsuit in the 60th District Court of Jefferson County. On March 27, 1986, suit was filed following the death of Anthony (Tony) Pecorino in July of 1985. In 1986, in the State court action, Mrs. Pecorino, in her respective capacities, sued the following:
1. A.C. AND S., INC.
2. CELOTEX CORPORATION
3. EAGLE-PICHER INDUSTRIES, INC.
4. FIBREBOARD CORPORATION
5. GAF CORPORATION
6. ARMSTRONG WORLD INDUSTRIES, INC.
7. KEENE CORPORATION
8. NICOLET INDUSTRIES, INC.
9. OWENS-CORNING FIBERGLAS CORPORATION
10. OWENS-ILLINOIS, INC.
11. PITTSBURGH CORNING CORPORATION
12. H.K. PORTER COMPANY, INC.
13. RAYMARK INDUSTRIES, INC.
14. STANDARD INSULATIONS, INC.
15. MINNESOTA MINING & MANUFACTURING CORPORATION
16. NATIONAL GYPSUM COMPANY
17. UNITED STATES GYPSUM CORPORATION
18. TURNER & NEWALL PLC.
Raymark Industries, Inc., argues that the non-suited defendants, being GAF Corporation; Turner & Newall, PLC; Nicolet Industries, Inc.; Standard Insulations, Inc., are severed from the instant case because the same are in bankruptcy. Raymark Industries, Inc., states that the Appellees here are entitled to judgment as a matter of law because the Appellant's suit is barred by the release herein, the statute of limitations applicable thereto, the assignment herein and, lastly, res judicata.
Raymark Industries, Inc., also contends that, in the Appellant's 1980 lawsuit, in paragraph X thereof, Mr. and Mrs. Pecorino definitely put into issue the following matters. Paragraph X, of Appellant's 1980 complaint, reads as follows "[T]he Plaintiff was permanently and severely injured; that he has sustained a very serious and permanent injury to his body; that he is suffering from the disease Asbestosis; that he suffers from shortness of breath, inability to breathe, clubbing of the fingers and toes; that it is necessary that Plaintiff have available to him at all times a container of oxygen and a breathing aid devise, in order that he may be able to breathe; that Plaintiff has extreme difficulty sleeping; that he tires easily; that he constantly coughs; that his future outlook is very dim; that he has sought the services of physicians in an effort to cure or arrest the condition from which he is suffering, but to no avail; that the Plaintiff has lost his good health, all of which, at some time in the future, will be permanently disabling to him."
Raymark further vehemently argues that the 1980 lawsuit placed into issue the question of asbestos-related or asbestos-induced diseases, including specifically mesothelioma.
In the United States District Court for the Eastern District of Texas, Beaumont, Division, in the case styled "Anthony Pecorino, et. ux v. Fibreboard Corporation, et al.", Civil Action No. B-80-794-CA, entitled Pre-Trial Order, there was filed:
....
"(b) Plaintiff and Defendants have filed motions to allow the use of depositions and court testimony taken in prior cases involving claims against manufacturers of asbestos-contained products causing asbestosis, mesothelioma and cancer where the testimony is relevant to the state of the scientific and medical knowledge, the knowledge of the Defendants concerning the disease asbestosis and the knowledge generally of the potential dangers resulting from exposure to asbestos-containing products."
The above Pre-Trial Order was dated in 1981.
The Release that brought about the settlement in 1981 reads as follows:
To continue reading
Request your trial
-
Matter of Celotex Corp.
...that exposure, whether or not all the injuries have become manifest at the time the cause of action arose. Pecorino v. Raymark Industries, Inc., 763 S.W.2d 561, 574 (Tex.App.1988); see also Graffagnino v. Fibreboard Corp., 776 F.2d 1307, 1309 (5th Cir.1985) Cf. Larson v. Johns-Manville Sale......
-
Potts v. Celotex Corp.
...Cathcart v. Keene Industrial Insulation, 324 Pa.Super. 123, 148-149, 471 A.2d 493, 506-507 (1984); Pecorino v. Raymark Industries, Inc., 763 S.W.2d 561 (Tex.App.1988). They are generally based upon the principles argued by the present respondents, i.e., that once an injury is sustained in c......
-
Childs v. Haussecker
...S.W.2d 758, 761 (Tex.App.--Corpus Christi 1990, writ denied) (health problems due to formaldehyde); Pecorino v. Raymark Indus., 763 S.W.2d 561, 568 (Tex.App.--Beaumont 1988, writ denied) (mesothelioma caused by asbestos exposure). Indeed, almost every jurisdiction applies some formulation o......
-
Alexander v. Scheid
...possibility of metastasis and hastened death, in view of the prohibition against splitting causes of action); Pecorino v. Raymark Indus., Inc., 763 S.W.2d 561, 571 (Tex.App.1988) (noting that Texas prohibits the splitting of causes of action as part of the doctrine of res 8. See Cal.Civ.Pro......
-
Chapter 17-11 Suspending and Extending the Limitations Period
...2017).[72] Id.[73] Fibreboard Corp. v. Pool, 813 S.W.2d 658, 679 (Tex. App.—Texarkana 1991, writ denied).[74] Pecorino v. Raymark Indus., 763 S.W.2d 561, 568 (Tex. App.—Beaumont 1988, writ denied).[75] Sowell v. Dresser Indus., Inc., 866 S.W.2d 803, 808 (Tex. App.—Beaumont 1993, writ denied......