Pustejovsky v. Rapid-American Corporation

• Decision Date: 30 November 2000
• Docket Number: No. 98-1128,98-1128
• Parties: (Tex. 2000) Joe Ann Pustejovsky, individually and as personal representative of the Heirs and Estate of Henry J. Pustejovsky, Jr., Petitioner v. Rapid-American Corporation, Respondent
• Court: Texas Supreme Court

Page 643

35 S.W.3d 643 (Tex. 2000)

Joe Ann Pustejovsky, individually and as personal representative of the Heirs and Estate of Henry J. Pustejovsky, Jr., Petitioner v. Rapid-American Corporation, Respondent

No. 98-1128

IN THE SUPREME COURT OF TEXAS

Argued September 8, 1999

Decided November 30, 2000

On Petition for Review from the Court of Appeals for the Fourth District of Texas

Justice Gonzales delivered the opinion of the Court.

This case raises the question whether a plaintiff may bring separate actions for separate latent occupational diseases caused by exposure to asbestos. Specifically, we must decide whether the single action rule or the statute of limitations bars Henry Pustejovsky, who settled an asbestosis suit with one defendant in 1982, from bringing suit against different defendants twelve years later for asbestos-related cancer. The trial court granted summary judgment for the defendants based on limitations. The court of appeals affirmed, holding that under the single action rule, Pustejovsky's cause of action for cancer accrued, and limitations began to run, when he knew of the asbestosis. 980 S.W.2d 828, 833. We conclude, however, that neither the single action rule nor the statute of limitations bars Pustejovsky's later claim for asbestos-related cancer. Accordingly, we reverse the court of appeals' judgment and remand this case to the trial court for further proceedings consistent with this opinion.

I

Henry J. Pustejovsky, Jr. was exposed to asbestos from 1954 to 1979 while employed as a metal pourer with Alcoa Aluminum in Rockdale, Texas. In the late 1970s or early 1980s, Pustejovsky learned from co-workers that exposure to asbestos could be harmful. In 1982, Pustejovsky consulted an attorney, who arranged for a doctor to examine Pustejovsky to determine whether exposure to asbestos fibers at work had affected his health. The doctor found scarring on Pustejovsky's lungs and diagnosed him with asbestosis, a nonmalignant disease caused by inhaling asbestos fibers. The doctor also informed him that the asbestosis resulted from his years of working around asbestos products. In 1982, Pustejovsky sued Johns-Manville Corporation, an asbestos supplier, for damages related to his asbestosis. That suit was promptly settled out of court for approximately $25,000.

In 1994, when Pustejovsky was 59 years old, he began experiencing shortness of breath, cold-like symptoms, and fatigue. In September of that year, a doctor examined Pustejovsky and diagnosed him with malignant pleural mesothelioma, a cancerous tumor of the lung lining. Two months later, Pustejovsky joined with three other plaintiffs and sued Rapid-American Corporation, Owens-Corning Fiberglas Corporation (Owens Corning), Pittsburgh Corning Corporation, and other suppliers of asbestos products. These four plaintiffs sought damages for their injuries caused by exposure to asbestos. In May 1995, Pittsburgh Corning filed a motion for summary judgment, asserting that Pustejovsky's claim is barred by the statute of limitations, which began to run for all asbestos-related claims, including mesothelioma, when Pustejovsky was diagnosed with asbestosis in 1982. Owens Corning and Rapid-American subsequently joined Pittsburgh Corning's motion.

Pustejovsky contested the motions with undisputed expert medical evidence that mesothelioma and asbestosis are separate conditions resulting from distinct disease processes. Because the conditions are distinct, Pustejovsky argued, limitations for mesothelioma was not triggered by the diagnosis of his asbestosis in 1982. The trial court granted defendants' motions for summary judgment and severed Pustejovsky's claim against defendants on the grounds that the statute of limitations began to run in 1982, when Pustejovsky discovered his asbestosis.¹ The court of appeals affirmed the summary judgment, holding that Pustejovsky's second action was barred by the single action rule and the statute of limitations. 980 S.W.2d at 829. The court determined that asbestosis and mesothelioma are but different damages resulting from the same injury by exposure to asbestos. The court concluded that Pustejovsky could not sue for mesothelioma after settling his asbestosis claim without violating the single action rule's prohibition against claim splitting. Although the court of appeals acknowledged that other jurisdictions had rejected the single action rule as a bar to latent disease claims, it held that any decision to do so here should be by our Court. 989 S.W.2d at 831-33.

Pittsburgh Corning, Owens Corning, and Rapid-American sought review in this Court. Following oral argument and the submission of the case, first Pittsburgh Corning, then Owens Corning, filed for bankruptcy and, after severance, are no longer parties in this appeal.²

II

The applicable standard of review is whether Rapid-American, as the summary-judgment movant, established that there is no genuine issue of material fact and that it is entitled to judgement as a matter of law on the grounds it set forth in its motion. See Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). A defendant moving for summary judgment on the affirmative defense of limitations must prove conclusively the elements of that defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). When, as here, the plaintiff pleads the discovery rule as an exception to limitations, the defendant has the burden of negating that exception as well. Id.

Pustejovsky pleaded the discovery rule, supported by the affidavit testimony of an expert on the subject of mesothelioma, Dr. James Robb, as well as Pustejovsky's affidavit and medical records. As Dr. Robb testified, asbestosis is a non-malignant disease caused by inhaling asbestos dust. When inhaled, asbestos fibers may begin a scarring process that destroys air sacs in the lung where oxygen is transferred into the blood. The condition is marked by decreased pulmonary function and lung capacity. Symptoms include shortness of breath, a dry and unproductive cough, and in some cases, weight loss and chest pain. The scarring is progressive and incurable, but it is not always fatal. According to Dr. Robb, the latency period between toxic exposure and manifestation of asbestosis is typically fifteen to twenty-five years.

Dr. Robb testified further that mesothelioma is a malignant tumor in the membranes lining the lungs, abdomen, and chest. The cancer is a very painful and severely debilitating disease that almost always causes the victim's death within seven to fifteen months of diagnosis. The latency period for mesothelioma is generally over fifteen years, averages thirty to forty years, and in some cases can extend as long as seventy years.

Dr. Robb explained that mesothelioma does not have any causal connection to asbestosis. While both diseases are associated with exposure to asbestos, mesothelioma is not dependant on a precondition of asbestosis, and asbestosis does not necessarily develop into, or cause the development of, mesothelioma. According to Dr. Robb, approximately fifteen percent of asbestosis victims also contract mesothelioma. See 980 S.W.2d at 829.

In his summary judgment response, Pustejovsky argued that because the diseases are separate, distinct conditions, his asbestosis diagnosis could not trigger limitations for a disease that would not manifest for another twelve years. Because he brought suit for mesothelioma in less than a year of its diagnosis, Pustejovsky contends that limitations does not bar his present suit.

The defendants did not offer medical evidence controverting Dr. Robb's testimony. Rather, Rapid-American argues that the fact that asbestosis and mesothelioma are distinct diseases does not matter because both diseases were caused by the same course of exposure to asbestos. Rapid-American contends that the single action rule requires that the statute of limitations for all causes of action based on asbestos exposure began to run from the 1982 diagnosis of asbestosis. Therefore, it argues, Pustejovsky's present claim for mesothelioma is time-barred as a matter of law. Accordingly, we first consider existing jurisprudence about our single action rule.

III

The single action rule, also known as the rule against splitting claims, provides a plaintiff one indivisible cause of action for all damages arising from a defendant's single breach of a legal duty. See Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136-37 (5th Cir. 1985). Our jurisprudence "was designed to prevent more than one suit growing out of the same subject-matter of litigation; and our decisions from the first have steadily fostered this policy." Galveston, H. & S.A Ry. Co. v. Dowe, 7 S.W. 368, 371 (Tex. 1888). As one court has explained:

The reason for the rule lies in the necessity for preventing vexatious and oppressive litigation, and its purpose is accomplished by forbidding the division of a single cause of action so as to maintain several suits when a single suit will suffice.

Eastland County v. Davisson, 13 S.W.2d 673, 676 (Tex. Comm'n App. 1929, judgm't adopted). This equitable doctrine is a species of res judicata that prohibits splitting a single cause of action and subsequently asserting claims that could have been litigated in the first instance. See Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985); Pierce v. Reynolds, 329 S.W.2d 76, 78 (Tex. 1959). In a recent accounting malpractice case, we reiterated a corollary rule about the accrual of a cause of action:

[A] cause of action accrues when the plaintiff knows or reasonably should know that he had been legally injured by the alleged wrong, however slightly. The fact that the plaintiff's actual damages may not be fully known until much later does not affect the determination of the accrual date . . . .

Murphy v. Campbell, 964 S.W.2d 265, 273 (Tex. 1997).

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