Pierce v. Johns-Manville Sales Corp.

• Decision Date: 07 September 1983
• Docket Number: No. 7,JOHNS-MANVILLE,7
• Citation: 464 A.2d 1020,296 Md. 656
• Parties: Elizabeth A. PIERCE et al. v.SALES CORPORATION et al.
• Court: Maryland Court of Appeals

Page 656

296 Md. 656

464 A.2d 1020

Elizabeth A. PIERCE et al. v. JOHNS-MANVILLE SALES CORPORATION et al.

No. 7.

Court of Appeals of Maryland.

Sept. 7, 1983.

John T. Enoch and John Amato, IV, Baltimore (Goodman, Meagher & Enoch, Baltimore, on brief), for appellants.

F. Ford Loker, Baltimore (Robert E. Scott, Jr., Daniel W. Whitney, Semmes, Bowen & Semmes, Donald A. Krach, Niles, Barton & Wilmer, Michael B. Mann, Merriman & Mann, James R. Eyler, Miles & Stockbridge, Baltimore, and H. Emslie Parks and Wright & Parks, Towson, on brief), for appellees.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

DAVIDSON, Judge.

This case primarily concerns an application of Maryland Code (1974, 1980 Repl.Vol.) § 5-101 of the Courts and Judicial Proceedings Article, a statute of limitations that requires a civil action to be filed within three years from the date it accrues (the three year statute of limitations). More particularly, it concerns the time at which a cause of action accrues when exposure to asbestos initially results in the manifestation of asbestosis, for which no tort recovery was sought, and subsequently results in the manifestation of lung cancer, which, on the basis of the record before us in this summary judgment proceeding, is a separate, distinct latent disease. Thus, the central question here is whether a cause of action for damages resulting from lung cancer accrues at the time asbestosis, allegedly caused by exposure to asbestos, is manifested or at a subsequent time, when lung cancer, allegedly caused by the same asbestos exposure, is manifested. Stated another way, the question is whether a person should be barred from recovery for the harm resulting from lung cancer caused by asbestos exposure solely because that person previously developed asbestosis, a separate and distinct disease, notwithstanding the fact that no tort recovery was sought for the harm resulting from asbestosis.

Charles H. Pierce (Pierce) was employed as an insulation mechanic by the Wallace and Gale Company (Wallace) in Baltimore from 1949 until 1973. During that time, he worked with and was exposed to asbestos and asbestos products manufactured or distributed by the respondents, Johns-Manville Sales Corporation and others (Johns-Manville).

Having learned that his stepfather's death in 1968 had been caused by asbestosis, Pierce sought medical attention, and after x-rays were taken, was advised that there was no evidence of asbestosis. In 1969 or 1970, Pierce began to complain of chest pains, but did not then seek medical attention. In 1971, chest x-rays were taken that revealed "scars in both lungs probably related to asbestos exposure." Nonetheless, Pierce continued his employment.

Early in 1973, as a result of severe chest pains, Pierce consulted a lung specialist who diagnosed his condition as asbestosis of the lungs caused by exposure to asbestos. ¹ He was advised that he was suffering from asbestosis and that he ran the risk of developing lung cancer even if there was no further exposure to asbestos. ²

On 14 February 1973, Pierce filed a claim with the Maryland Workmen's Compensation Commission (Commission), alleging that he had developed asbestosis as a result of his employment with Wallace. On 2 March 1973, in order to avoid further asbestos exposure, Pierce left his job with Wallace and obtained an office job with a different company where he worked until 8 November 1979.

On 27 June 1973, the Medical Board for Occupational Diseases determined that Pierce "did sustain an occupational disease, namely pulmonary asbestosis," and that he had a 25% permanent partial disability. On 16 October 1973, the Commission determined that Pierce had suffered a 50% permanent partial disability resulting from asbestosis.

Pierce continued to suffer chest pains and shortness of breath and noted the onset of a cough. In December 1974, hospital tests again indicated that Pierce suffered from asbestosis. However, both the hospital pathology report and the report of the attending physician indicated that no evidence of lung cancer was present.

Although Pierce's previous symptoms persisted, he was reasonably well until October 1979 when he developed increasing shortness of breath occurring even at rest, a low-grade fever, and recurrent episodes of coughing. Lung cancer, related to the prior asbestos exposure, was diagnosed for the first time on 10 November 1979. ³ Pierce died on 25 January 1980. The cause of death was adenocarcinoma of the lung--a form of lung cancer. ⁴

On 13 March 1980, in the Circuit Court for Baltimore County, Elizabeth Pierce, in both her capacity as personal representative of Pierce's estate and as his widow, filed a suit, including a survival action ⁵ and a wrongful death action, ⁶ against Johns-Manville, and others, based on negligence and strict liability. Damages were not sought for any harm resulting from Pierce's asbestosis. Damages were sought solely for the harm resulting from Pierce's lung cancer. Johns-Manville filed a motion for summary judgment based on the grounds that the survival action was barred by the three year statute of limitations and, therefore, that a condition precedent to filing a viable wrongful death action had not been fulfilled because Pierce himself would not have been entitled to maintain an action if death had not ensued.

With respect to the survival action, the trial court determined that the cause of action accrued in April 1973, the time at which asbestosis was manifested, and concluded that this cause of action was barred by the three year statute of limitations. In addition, the trial court concluded that the wrongful death action was also barred. On 15 December 1981, the trial court entered an order granting the motion for summary judgment in favor of all but two of the defendants. Pursuant to Maryland Rule 605(a), the trial court additionally determined that there was no just reason for delay and expressly directed the entry of an appropriate final judgment.

Elizabeth Pierce filed an appeal to the Court of Special Appeals. While that appeal was pending, she filed a petition for a writ of certiorari that we granted before consideration by the Court of Special Appeals. We shall reverse the judgment of the trial court.

Here, with respect to the survival action, Elizabeth Pierce contends that the "discovery rule"--that a cause of action accrues when a person discovers, or through reasonable care and diligence should have discovered, the nature and cause of a harm--is applicable here. She maintains that because of the latent nature of Pierce's disease, the cause of action for damages resulting from lung cancer did not accrue until Pierce knew, or reasonably should have known, that he had developed lung cancer. She points out that although lung cancer and asbestosis are both associated with exposure to asbestos, the diseases are separate and distinct; that there is no medically-accepted link between the development of asbestosis and the development of lung cancer; that consequently lung cancer is not a maturation of asbestosis; and that in the absence of a medical link there is only a possibility that a person suffering from asbestosis will develop lung cancer. She asserts that at the time his asbestosis manifested itself, Pierce could not have discovered the existence of his lung cancer because it had not yet developed. She further asserts that at that time he could not have ascertained that he would develop lung cancer. She claims, therefore, that the earliest time at which Pierce's lung cancer reasonably should have been discovered was 10 November 1979 when his lung cancer manifested itself and was diagnosed for the first time. She concludes that under the discovery rule the estate's cause of action is not barred by the statute of limitations.

Johns-Manville contends that because the asbestos exposure caused both Pierce's asbestosis and lung cancer, an indivisible cause of action arose for all of the harm resulting from both asbestosis and lung cancer. It asserts that this indivisible cause of action accrued early in 1973 when Pierce discovered his asbestosis because it was at that time that Pierce discovered an initial harm resulting from the asbestos exposure, even though he did not then know the full extent of that harm. It further asserts that at that time, Pierce was obligated to sue and to seek recovery for all claims, including future damages.

Johns-Manville maintains that the development of Pierce's lung cancer was nothing more than a maturation of his harm--pulmonary disease. It further contends that to construe the discovery rule so that the cause of action accrued at the time Pierce discovered the extent of his harm, rather than at the time he discovered the existence of the initial harm resulting from the asbestos exposure, would, in essence, constitute an adoption of the "maturation of harm rule"--that the statute of limitations does not begin to run until the maturation of damages--a rule consistently rejected by this Court. It concludes that under the discovery rule, the cause of action is barred by the statute of limitations. In essence, Johns-Manville argues that Pierce would have been barred from recovery for the harm resulting from lung cancer caused by asbestos exposure solely because Pierce had previously developed asbestosis, notwithstanding the fact that Pierce had never sought tort recovery for the harm resulting from the asbestosis. We disagree.

Maryland has recently held the discovery rule to be applicable generally in all actions. Poffenberger v. Risser, 290 Md. 631, 636, 431 A.2d 677, 680 (1981). Under that rule, a cause of action accrues for a latent disease when the claimant knew or reasonably should have known of the nature and cause of the harm. Harig v. Johns-Manville Prods Corp., 284 Md. 70, 83, 394 A.2d 299, 306 (1978). With respect to latent diseases, this Court has...