PPG Architectural Finishes, Inc. v. Lowery, No. 2004-IA-01091-SCT.

• Decision Date: 18 August 2005
• Docket Number: No. 2004-IA-01091-SCT.
• Citation: 909 So.2d 47
• Parties: PPG ARCHITECTURAL FINISHES, INC. v. Melissa LOWERY and Animal Emergency Clinic, P. A.
• Court: Mississippi Supreme Court

909 So.2d 47

PPG ARCHITECTURAL FINISHES, INC. v. Melissa LOWERY and Animal Emergency Clinic, P. A.

No. 2004-IA-01091-SCT.

Supreme Court of Mississippi.

August 18, 2005.

Mark W. Garriga, Jackson, attorney for appellant.

Sheila M. Bossier, Richard Arthur Freese, Alexandra Francoise Markov, Jackson, Barry Douglas Hassell, Michael Wayne Baxter, Robert Louis Goza, Ridgeland, attorneys for appellees.

Before SMITH, C.J., DICKINSON and RANDOLPH, JJ.

SMITH, Chief Justice, for the Court.

¶ 1. On June 12, 2000, Melissa Lowery filed suit in Madison County Circuit Court against Animal Emergency Clinic, P.A. (AEC), her former employer, and Aaron D. Massey Painting (Massey), a/k/a Madison Paints, Inc. In the complaint Lowery alleged that AEC negligently required her to work in an unsafe environment and that Massey negligently used a type of paint that emitted extraordinarily dangerous fumes and failed to warn Lowery of the consequences, possible side effects and long term damages which could result from exposure.

¶ 2. After losing consciousness, Lowery was treated at St. Dominic Hospital where she informed the medical staff about her exposure to the paint fumes. However, it was not until several years later that Lowery received definitive medical confirmation that her illness had been caused by the exposure to paint fumes. Lowery then filed an amended complaint joining PPG Architectural Finishes, Inc. (PPG) alleging products liability. PPG filed a motion for summary judgment arguing that Lowery's claims were barred by the statute of limitations. The circuit court denied PPG's summary judgment motion but granted its motion for certification of interlocutory appeal and stay of the proceedings. In turn, we granted PPG permission to bring this appeal. See M.R.A.P 5.

¶ 3. We find that the trial court erred as Lowery and the clinic clearly knew or reasonably should have known of her exposure to paint fumes on the very night it occurred. The statute of limitations barred Lowery's action against PPG and summary judgment for PPG was appropriate. We, therefore, reverse and render.

FACTS AND PROCEDURAL HISTORY

¶ 4. Melissa Lowery reported to work at the Animal Emergency Clinic in Jackson, Mississippi, on the night of October 1, 1999. Immediately upon entering the Clinic, Lowery noticed wet paint throughout the building and was aware that the Clinic was to be painted that week. According to Lowery, the strong odor of the paint immediately caused her to become concerned so she telephoned her boss at home. Lowery claims that after three hours of inhaling paint fumes she became disoriented, sick and began to have trouble with her memory. Furthermore, the clinic's dog developed bloodshot eyes and began vomiting bile.

¶ 5. Lowery eventually went to the attic to retrieve a label from one of the paint cans and identified it as "Porter Glyptex Enamel" and telephoned the Mississippi Regional Poison Control Center to report the problems they were experiencing. Lowery's symptoms persisted, and she became sick and passed-out from the exposure. She was taken to the Emergency Room at St. Dominic Hospital where she complained of headache, nausea and throat irritation from exposure to paint fumes. The attending physician's clinical impression at the time was chemical exposure. Lowery returned to the emergency room three days later, and the attending physician's impression was then toxin exposure. Lowery visited several doctors complaining that she was experiencing neurological problems severe enough to hamper her ability to study, write or take notes in her college classes. Her list of symptoms included: dizziness, confusion, short term memory loss, headaches, seizures, disorientation while driving, vertigo during sex, and tachycardia and shortness of breath on exertion. The doctor concluded that Lowery was suffering from cerebral symptoms as a result from exposure to toxic fumes.

¶ 6. Lowery filed a claim for disability benefits under the Social Security Act in December of 1999. On June 12, 2000, Lowery filed this suit in Madison County Circuit Court claiming permanent brain injury as the result from her October 1, 1999, incident. Lowery named her employer, Animal Emergency Clinic, P.A. ("AEC" or "Clinic"), and Aaron Massey Painting (Massey), a painting contractor, as defendants. Over the course of three and a half years the parties engaged in discovery and had set a trial date for December 2, 2003. On October 27, 2003, the trial court entered an order allowing Lowery to file an amended complaint. On November 13, 2003, Lowery filed an amended complaint naming PPG Architectural Finishes, Inc. (PPG) as a defendant. AEC immediately filed a cross-claim against PPG for indemnity and contribution. PPG filed an answer asserting the statute of limitations as an affirmative defense.

¶ 7. PPG's motion for summary judgment was denied by the trial court. The trial judge concluded that there was a genuine issue of fact as to when Lowery "knew" that she had permanent brain damage. PPG raised the following issues on appeal:

1. IS THE DISCOVERY RULE PROPERLY APPLIED TO A CAUSE OF ACTION THAT DOES NOT INVOLVE LATENT INJURY OR DISEASE?

2. IS "DEFINITIVE MEDICAL CONFIRMATION" REQUIRED BEFORE A PERSONAL INJURY CAUSE OF ACTION ACCRUES?

3. DOES THE CIRCUIT COURT'S RULING EFFECTIVELY SPLIT THE PLAINTIFF'S CAUSE OF ACTION?

4. CAN A VALID CROSS-CLAIM FOR INDEMNITY EXIST IF THE PLAINTIFF'S STATUTE OF LIMITATIONS HAS RUN AGAINST THE CROSS-DEFENDANT AND THE CROSS-PLAINTIFF IS CHARGED WITH ACTIVE CONDUCT?

ANALYSIS

¶ 8. This Court has consistently held that review for summary judgment is de novo. Hurdle v. Holloway, 848 So.2d 183, 185 (Miss.2003); Miller v. Meeks, 762 So.2d 302, 304 (Miss.2000); Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss.1994). A summary judgment motion is only properly granted when no genuine issue of material fact exists. Id. at 304; Miss. R. Civ. P. 56(c). The moving party has the burden of demonstrating that no genuine issue of material fact exists within the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits." Id.; see also Davis v. Hoss, 869 So.2d 397, 401 (Miss. 2004) (noting that the court should review all evidence available to it when making its decision); Anglado v. Leaf River Forest Prods., Inc., 716 So.2d 543, 547 (Miss. 1998).

I & II. WHETHER THE DISCOVERY RULE IS PROPERLY APPLIED IN A CAUSE OF ACTION NOT INVOLVING LATENT INJURY OR DISEASE AND WHETHER A DEFINITE DIAGNOSIS IS REQUIRED

BEFORE A PERSONAL INJURY CAUSE OF ACTION ACCRUES.

A. Historical Review of the Discovery Rule

¶ 9. Miss.Code Ann. § 15-1-49(2) (Rev.2002) provides for a special exception to the standard three-year statute of limitations for "latent injury or disease." In its most simplistic form, if aggrieved persons do not know of their injury the statute of limitation does not begin running until they "can reasonably be held to have knowledge of the injury or disease." Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 709 (Miss.1990). Early on this Court explained the existence of the "discovery rule" in medical malpractice suits but did not fully expound upon its applicability in other areas of law. Smith v. Sanders, 485 So.2d 1051, 1052-53 (Miss.1986). In Edwards this Court promulgated that the "discovery rule exists in conjunction with § 15-1-49 (1972) in the case of negligence or products liability cause of action involving latent disease." Edwards, 573 So.2d at 709. This Court reasoned that it would be illogical to prevent plaintiffs from obtaining relief if their injuries were not discoverable until after the statute of limitations had passed. Id.

¶ 10. The discovery rule's application has been greatly expanded over time. See Barnes v. Singing River Hosp. Sys., 733 So.2d 199 (Miss.1999) (Mississippi Tort Claims Act); Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Miss.1991) (workers compensation); Staheli v. Smith, 548 So.2d 1299 (Miss.1989) (defamation). At issue in all cases however, is when the plaintiff discovers their injury or disease. Sweeney v. Preston, 642 So.2d 332, 334 (Miss.1994) (quoting Williams v. Kilgore, 618 So.2d 51, 55 (Miss.1992)). In Sweeney this Court noted that, "knowledge that there exists a causal relationship between the negligent act and the injury or disease complained of is essential because `it is well-established that prescription does not run against one who has neither actual nor constructive notice of the facts that would entitle him to bring an action.'" Id. (emphasis added). Whether the plaintiff knew about the injury has typically been reserved as a jury question. Barnes, 733 So.2d at 205; Edwards, 573 So.2d at 709.

¶ 11. This Court has cautioned that the discovery rule should only be applied in "limited circumstances in [] negligence and products liability case[s] involving latent injury." Schiro v. Am. Tobacco Co., 611 So.2d 962, 964 (Miss.1992); Edwards, 573 So.2d at 707. Implicitly then, this Court has held that if a latent injury is not present the discovery rule would not apply. Chamberlin v. City of Hernando, 716 So.2d 596, 602 (Miss.1998).

B. Latent Injury

¶ 12. A latent injury is defined as one where the "plaintiff will be precluded from discovering harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing in question. . . [or] when it is unrealistic to expect a layman to perceive the injury at the time of the wrongful act." Donald v. Amoco Prod. Co., 735 So.2d 161, 168 (Miss.1999) (citing Staheli, 548 So.2d at 1303; Smith v. Sneed, 638 So.2d 1252, 1257 (Miss.1994)). Herein lies the conflict presented sub judice.

¶ 13. It is well established that this Court must review a statute through common use of words and meanings. Perkins v. State, 863 So.2d 47 (Miss.2003) (citing Cassibry v. State, 404 So.2d 1360, 1368 (Miss.1981)) (following Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1...