Puckett v. Johns-Manville Corp.

• Decision Date: 08 July 1985
• Docket Number: JOHNS-MANVILLE,No. B007863,B007863
• Citation: 215 Cal.Rptr. 726,169 Cal.App.3d 1010
• Court: California Court of Appeals Court of Appeals
• Parties: Ralph PUCKETT, Plaintiff and Appellant, v.CORPORATION et al., Defendants and Respondents.

Page 726

215 Cal.Rptr. 726

169 Cal.App.3d 1010

Ralph PUCKETT, Plaintiff and Appellant, v. JOHNS-MANVILLE CORPORATION et al., Defendants and Respondents.

No. B007863.

Court of Appeal, Second District, Division 1, California.

July 8, 1985.

Girardi, Keese & Crane, James B. Kropff and Christopher P. Regan, Los Angeles, for plaintiff and appellant.

Joseph Bogan and Mary K. Jones, Glendale, for defendant and respondent Owens-Corning Fiberglas Corporation.

Norby & Brodeur, Alfred G. Lucky, Jr., and Patrick M. Kilker, Torrance, for defendant and respondent Raymark Industries, Inc.

Morgan, Wenzel & McNicholas and David E. Campana, Los Angeles, for defendant and respondent Armstrong World Industries, Inc.

Stearns & Nelson and Rolf F. Teuber, Hollywood, for defendant and respondent Forty-Eight Insulations, Inc.

Paul, Hastings, Janofsky & Walker, Douglas C. Conroy and Pamela M. Woods, Los Angeles, for defendant and respondent GAF Corporation.

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

Coyle, Marrone & Robinson and Fred Krakauer, Los Angeles, for defendant and respondent The Celotex Corporation.

Adams, Duque & Hazeltine, Richard C. Field and Catherine Hunt Ruddy, Los Angeles, for defendant and respondent Keene Corporation.

Yusim, Stein & Hanger and Andrew D. Stein, Beverly Hills, for defendant and respondent Eagle-Picher Industries, Inc. L. THAXTON HANSON, Presiding Justice.

Plaintiff Ralph Puckett filed a complaint for personal injuries against numerous corporate defendants, including the GAF Corporation, as the result of his toxic exposure to asbestos. After answering the complaint and completing some discovery, including the deposition of plaintiff, ¹ defendants brought a joint motion for summary judgment, claiming that plaintiff's complaint was not a timely one and had been barred by the one-year statute of limitation set forth in Code of Civil Procedure section 340, subdivision (3). ² The trial court granted defendants' motion. Plaintiff has appealed from the judgment; we reverse.

FACTS

The pertinent facts underlying this dispute are not controverted, although the inferences and conclusions to be drawn from them are. Briefly, it appears that plaintiff ingested substantial amounts of asbestos while working in and around warehouses and ships as an employee of defendants Owens-Corning Fiberglas Corporation and Johns-Manville Corporation from 1947 and 1956. In 1956, plaintiff left his employment with Johns-Manville to engage in a new occupation, construction estimating.

On February 26, 1977, plaintiff missed work due to a respiratory ailment. On March 2, 1977, plaintiff was admitted for pulmonary and lung testing at Community Hospital, Long Beach, by Robert Lugliani, M.D. Lugliani diagnosed plaintiff's condition as asbestosis. Plaintiff was released from the hospital about a week later, and the only treatment prescribed was periodic physical checkups, rest and the general suggestion was made that he take care of his health. On March 3, 1977, plaintiff returned to his job.

On July 28, 1978, plaintiff was examined by another physician, Reuben Merliss, M.D., who concurred in the diagnosis by Dr. Lugliani of asbestosis; plaintiff received a recommendation that he have regular physical examinations, take vitamins, control his weight, etc.

In 1979, plaintiff was again under the care of Dr. Lugliani; medication was prescribed, and plaintiff underwent physical therapy for a short period of time; the same general directions concerning health care were given.

Plaintiff filed this complaint on March 30, 1979. In his complaint, he alleged that he "was prevented from attending to his usual occupation, and plaintiff is informed and believes, and thereupon alleges, that he will thereby be prevented from attending to his usual occupation for a period of time in the future...." When plaintiff's deposition was taken in 1983, plaintiff was still employed at his usual occupation, that of a construction estimator.

In seeking summary judgment, defendants contended that plaintiff's causes of action were subject to the limitation period of section 340, subdivision (3). (See fn. 2, supra.) They argued that plaintiff had become informed of his condition as early as February 1977--but had failed to file suit until March 30, 1979, and was thus barred from recovery; defendants made the assumption that the accrual of plaintiff's causes of action commenced the running of the statute from the time of his receipt of Lugliani's diagnosis. (See Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 885-889, 159 Cal.Rptr. 113.) ³

Plaintiff sought to invoke the enlarged statute of limitations for asbestos victims enacted by the Legislature in 1979 and effective January 1, 1980. It is set forth in Code of Civil Procedure section 340.2 (Stats.1979, ch. 513) and provides:

"(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:

"(1) Within one year after the date the plaintiff first suffered disability.

"(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.

"(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.

"(c) In an action for the wrongful death of any plaintiff's decedent, based upon exposure to asbestos, the time for commencement of an action shall be the later of the following:

"(1) Within one year from the date of the death of the plaintiff's decedent.

"(2) Within one year from the date the plaintiff first knew, or through the exercise of reasonable diligence should have known, that the death was caused or contributed to by such exposure."

The trial court rejected plaintiff's contention that the new statute applied to his case. As the minute order of the court declares, the trial court relied on the prior limitation statute, section 340, subdivision (3), and determined that plaintiff was barred from recovery by the untimely filing. Thus, judgment was awarded defendants.

We have concluded that the trial court applied the wrong statute to plaintiff's causes of action, and we reverse the judgment rendered below.

DISCUSSION

I. Legislative Intent

The general principles for determining legislative intent concerning the exclusively prospective or retroactive application of a statute have been set forth in In re Marriage of Bouquet (1976) 16 Cal.3d 583, 587, 128 Cal.Rptr. 427, 546 P.2d 1371, by the California Supreme Court. There it is explained that "[a]lthough legislative enactments are generally presumed to operate prospectively and not retroactively, [fn. omitted; citations], this presumption does not defy rebuttal. We have explicitly subordinated the presumption against the retroactive application of statutes to the transcendent canon of statutory construction that the design of the Legislature be given effect. [Citation.]" Bouquet sets forth some of the sources to which a reviewing court may look to determine the issue of retroactivity, including (1) the language of the statute itself; (2) the intention of the framers of the specific enactment; and (3) in the absence of statutory language, "[a] wide variety of factors ... 'such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction.' [Citations.]" (Ibid.)

The matter before us, and the statute under scrutiny demonstrate the difficulties inherent in fashioning a statute of limitations applicable to causes of action seeking redress for injuries resulting not from a traumatic incident but from a progressive, gradually disabling disease.

There is no doubt that plaintiff herein was advised as early as February 1977 that he was suffering from asbestosis, due to conditions of his employment extant over twenty years earlier. At the time of that diagnosis, however, plaintiff was apparently Our Legislature has attempted to redress the problem of the gradually progressive nature of the disease by enacting the special statute of limitations for victims of asbestosis, section 340.2. Both language in the enactment and the remarks of the author of the legislation support the conclusion 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.

only mildly affected by the condition, and returned to work very shortly thereafter. Over the next two-year period he sought medical attention sporadically but received only the most general of directions relative to his health. There is evidence, too, that plaintiff has a history of problems with weight control and of smoking cigarettes. What is also suggested by the medical history available is that plaintiff, as a reasonably concerned person, may very well have lacked comprehension concerning the potential severity of his disease; the disease, which is progressively disabling, had just began to disclose itself in 1977. Indeed, at the time plaintiff filed his lawsuit in 1979 and through the taking of his deposition in February 1983, he was still employed at his regular occupation, that of a construction estimator. We have not been called upon to decide the possible prematurity of plaintiff's claim, but only whether it could be appropriately terminated by a summary judgment.

The bill which created section 340.2 set forth in section 2, at page 1689, that "[t]he provisions of this act shall apply to those causes of action which accrued prior to...