Richmond v. A.P. Green Industries, Inc.
| Citation | 66 Cal.App.4th 878,78 Cal.Rptr.2d 356 |
| Decision Date | 15 September 1998 |
| Docket Number | No. A071729,A071729 |
| Court | California Court of Appeals |
| Parties | Previously published at 66 Cal.App.4th 878 66 Cal.App.4th 878, 98 Cal. Daily Op. Serv. 7220, 98 Daily Journal D.A.R. 9953 Cassie RICHMOND, Plaintiff and Respondent, v. A.P. GREEN INDUSTRIES, INC., et al., Defendants and Appellants. |
Brayton Harley Curtis, Philip A. Harley, Novato, James L. Oberman, for Plaintiff/Respondent.
Haight, Brown & Bonesteel, Roy G. Weatherup, Steven E. Moyer, Santa Monica, Lisa L. Oberg, San Francisco, Jon M. Kasimov, Caroline E. Chan, Santa Monica, Carrie Cappai Bauccio, San Francisco, for Defendants/Appellants.
Wartnick, Chaber, Harowitz, Smith & Tigerman, Harry F. Wartnick, San Francisco, Law Office of Daniel U. Smith, Daniel U. Smith, Kentfield, Ted W. Pelletier, Amici Curiae on behalf of Respondent.
Defendants/appellants A.P. Green Industries, Inc. (Green), and Flexitallic, Inc. (Flexitallic), appeal a judgment by jury trial awarding plaintiff/respondent Kyle Richmond 2 damages in his action for personal injuries from asbestos exposure. Appellants The California Supreme Court granted review of our original opinion in this case and remanded it with directions to vacate and reconsider in light of Buttram v. Owens-Corning Fiberglas Corp. (1997) 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71 (Buttram ). Buttram held that "a cause of action for damages arising from a latent and progressive disease such as asbestos-related pleural mesothelioma will be deemed to have 'accrued'--thereby precluding retroactive application of Proposition 51 [ (Civ.Code, §§ 1431-1431.5) ] ... if the plaintiff was diagnosed with the disease for which damages are being sought, or otherwise discovered his asbestos-related illness or injuries prior to June 4, 1986, the effective date of Proposition 51." (Buttram at p. 540, 66 Cal.Rptr.2d 438, 941 P.2d 71.) Since respondent's disease was diagnosed after June 4, 1986, and not otherwise discovered prior to that date, Proposition 51 governs the apportionment of his noneconomic damages.
present numerous assignments of error, principal among which is that the action was barred by the statute of limitations.
Between 1942 and his retirement in 1973 respondent worked as a welder in various shipyards, through which he was exposed to airborne asbestos fibers emanating from appellants' products, the inhalation of which resulted in lung damage.
In 1983 respondent brought an action for asbestos-related injuries against multiple specifically named and fictitious defendants, naming Flexitallic but not Green as a defendant. In his 1983 action respondent alleged that he suffered from "asbestosis, other lung damage, and cancer" and "is dying" as a result of his asbestos exposure. Both respondent and his wife, although she was not a party to the 1983 action, settled with several defendants, but there is no record of any settlement with Flexitallic, and it is undisputed that Green was never designated as one of the fictitiously named defendants. The action was ultimately dismissed against the nonsettling defendants for failure to bring the case to trial within five years. (§§ 583.310 & 583.360.)
In June 1994 respondent complained of shortness of breath and pain in his lungs, and tests revealed a tumor arising in a scarred area. Subsequent exploratory surgery revealed cancer on the pleural lining of the lung and other abnormalities consistent with asbestos pleural disease. In August 1994 the tumor was diagnosed as mesothelioma.
On October 11, 1994, respondent filed the present action, from which this appeal is taken, against numerous defendants including appellants, alleging "breathing difficulties, asbestosis, lung and/or other cancer, mesothelioma, and/or other lung damage." Respondent's wife was also a named plaintiff, alleging loss of consortium, but she subsequently dismissed her action.
By special verdict the jury found that (1) appellants did not act negligently; (2) appellants' products were defectively designed; (3) the defects were a cause of respondent's injuries; (4) respondent's injuries were caused by a reasonably foreseeable use of the products; (5) respondent did not contribute to his injuries; and (6) respondent suffered appreciable harm before June 3, 1986, as a result of asbestos inhalation.
The jury awarded respondent $165,000 in economic damages and $115,000 in noneconomic damages, assessing liability against Green at 1 percent, Flexitallic at .5 percent, and "all others" at 98.5 percent.
I
Buttram, supra, 16 Cal.4th 520, 66 Cal.Rptr.2d 438, 941 P.2d 71, which precipitated the Supreme Court's transfer of our original opinion, did not address the pivotal issue in this case: whether respondent's present action is barred by the statute of limitations because of his 1983 action. We permitted the parties to file supplemental briefing on this issue, and affirm our previous conclusion that respondent's action is not time-barred.
Section 340.2, subdivision (a) provides that the time for commencing any action based on exposure to asbestos "shall be the later of the following: [p] (1) Within one year after Appellants cite Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 47 Cal.Rptr.2d 580 (Darden ) for the proposition that respondent's present action accrued when he filed his previous action in 1983, and therefore the present action is barred by the statute of limitations. In Darden the plaintiff retiree filed an action in 1987 against General Motors and others for pulmonary fibrosis and asbestos-related pleural disease that was first diagnosed in 1986. In June 1990 plaintiff settled with other defendants and dismissed his action without prejudice against General Motors, whom he had not served. In June 1991 he filed a virtually identical complaint against General Motors. Darden held the plaintiff's second action was time-barred under the one year statute of limitations in section 340.2. (Darden at p. 356, 47 Cal.Rptr.2d 580.)
the date the plaintiff first suffered disability. [p] (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." Subdivision (b) defines "disability" as "loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation." Section 340.2 has been construed as open-ended for plaintiffs, such as retirees, who are not working when asbestos-related injuries first appear, because they have not sustained a disability as that term is statutorily defined. (Duty v. Abex Corp. (1989) 214 Cal.App.3d 742, 748-753, 263 Cal.Rptr. 13 (Duty ); see also Williamson v. Plant Insulation Co. (1994) 23 Cal.App.4th 1406, 1419, 28 Cal.Rptr.2d 751.)
Darden is distinguishable. It concerned a second action against the same defendant for the same injury. By contrast, appellant Green was not named in respondent's 1983 action, Flexitallic was never served with process therein, and the 1983 action involved nonmalignant lung disease, whereas the 1994 action involves a different injury--malignancy of the lungs.
Another authority cited by appellants, Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038, 67 Cal.Rptr.2d 494 is also distinguishable. Barr upheld a summary judgment in favor of the defendant on the ground the plaintiff's second action for asbestos-related cancer sought damages for the same cancer alleged in his first action. (Id. at pp. 1054-1055, 67 Cal.Rptr.2d 494.) Barr did not decide "the intriguing question" of whether the cancer alleged in the second action constituted a separate and distinct injury to which a separate limitations period applied because the plaintiff (a) admitted seeking damages for cancer in the first action, and (b) presented no evidence that the cancer allegation in his first action was mistaken or inadvertent. (Id. at pp. 1055-1056, 67 Cal.Rptr.2d 494.)
Appellants rely on respondent's 1983 unverified complaint in which respondent alleged he was suffering from cancer. Allegations in a prior pleading constitute evidentiary admissions (Magnolia Square Homeowners Assn. v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1061, 271 Cal.Rptr. 1), thereby placing the burden on the party contesting his prior allegations of producing evidence that they were " 'inadvertently made or were not authorized by him or made under mistake of fact.' " (Ibid., quoting Dolinar v. Pedone (1944) 63 Cal.App.2d 169, 177, 146 P.2d 237, italics omitted.)
Respondent's medical experts testified that his mesothelioma was first discovered and diagnosed in August 1994, following his complaints in June 1994 that he was experiencing shortness of breath, and there is no contrary evidence. This is sufficient to satisfy respondent's evidentiary burden. Since respondent's complaint was filed within one year after his diagnosis of mesothelioma, it was timely if the mesothelioma gives rise to a separate cause of action.
California follows the general rule of American jurisprudence that all claims arising from a single wrongful act must be asserted in a single cause of action, variously The single action and certainty of damage rules are on a potential collision course in the case of injuries from asbestos exposure. Courts in this state and nationally have accepted that inhalation of asbestos fibers may result in discrete diseases which, although caused by the same exposure, have...
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Richmond v. A.P. Green Industries, Inc.
...v. A.P. GREEN INDUSTRIES, INC. et al., Appellants No. S062813. Supreme Court of California Jan. 13, 1999. Prior report: Cal.App., 78 Cal.Rptr.2d 356. Petition for review Further action in this matter is deferred pending consideration and disposition of a related issue in Mitchell v. Asbesto......