School Bd. of City of Norfolk v. U.S. Gypsum Co.

Decision Date04 September 1987
Docket NumberNo. 870265,870265
Citation234 Va. 32,360 S.E.2d 325
Parties, 56 USLW 2176, 41 Ed. Law Rep. 1142 SCHOOL BOARD OF the CITY OF NORFOLK, et al. v. UNITED STATES GYPSUM COMPANY, et al. Record
CourtVirginia Supreme Court

Keith D. Boyette (Charles F. Witthoefft, Richmond; John C. Ivins, Jr.; Shepard M. Remis; Marjorie S. Cooke, Boston, Mass.; James C. Roberts; Bradfute W. Davenport, Jr.; Russell V. Palmore, Jr.; George B. Wickham, Richmond; Richard P. Brown, Jr.; Thomas W. Murrell, III; Thomas B. Kenworthy, Philadelphia, Pa.; Daniel A Carrell; Denise D. Daggett, Richmond; Gregory N. Stillman, Norfolk; Lawrence T. Hoyle, Jr.; Eleanor I. Druckman, Philadelphia, Pa.; Hirschler, Fleischer, Weinberg, Cox & Allen, Richmond; Goodwin, Proctor & Hoar, Boston, Mass.; Mays & Valentine, Richmond; Morgan, Lewis & Bockius, Philadelphia, Pa.; Hunton & Williams, Norfolk; Hoyle, Morris & Kerr, Philadelphia, Pa., on briefs), for defendants.

Thomas J. Michie, Jr. (Gary W. Kendall; James P. Cox, III; Michie, Hamlett, Donato & Lowry, Charlottesville, on brief), for plaintiffs.

William H. Hauser, Sr. Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen.; Stephen D. Rosenthal, Deputy Atty. Gen.; Calvin F. Tiller, Fred R. Kozak, Asst. Attys. Gen., on brief), for amicus curiae Com. of Va.

D. Patrick Lacy, Jr.; John A. Gibney, Jr. (Lacy & Mehfoud, P.C., Richmond, on brief), for amicus curiae Virginia School Boards Ass'n.

Present: All the Justices.

POFF, Justice.

Pursuant to Acts 1985, c. 620, and Acts 1986, cc. 250, 646, the people of this Commonwealth, at the general election held November 4, 1986, ratified an amendment to Va. Const. art. VI, § 1, which vested this Court with original jurisdiction "to answer questions of state law certified by a court of the United States or the highest appellate court of any other state." By order entered January 16, 1987, we amended the Rules of this Court by adding Rule 5:42 which is appended to the foot of this opinion.

As contemplated by Rule 5:42(a) and (e), we entered an order March 18, 1987, accepting for consideration a question of law certified to us by orders entered in the above-captioned case by the United States District Court for the Eastern District of Virginia, Norfolk Division. The certification orders fully comply with the requirements of Rule 5:42(c) and (d), and we look to those orders for the facts and circumstances underlying the question certified.

As stated in the certification orders, the City of Norfolk and the School Board of the City of Norfolk (the plaintiffs) filed a civil complaint on June 27, 1986, seeking "compensatory and punitive damages allegedly sustained in inspecting, analyzing, containing, removing and replacing asbestos-containing products which they claim were placed in certain school buildings between 1939 and 1971." The complaint, containing fifteen counts, demanded judgment against the manufacturers of the asbestos products, U.S. Gypsum, National Gypsum Company, W.R. Grace & Co. (the defendants), and Pfizer, Inc. At the time the question was certified to this Court, the complaint had been reduced to six counts claiming restitution, negligence, breach of express warranties, breach of implied warranties, fraud, and unfair trade practices. By stipulation, Pfizer, Inc., has been dismissed as a party-defendant.

In answer to the complaint, the defendants contended that the cause of action asserted by the plaintiffs was extinguished by Code § 8.01-250. 1 In response, the plaintiffs contended that this statute merely barred the right of action, and that Code § 8.01-250.1 as amended effective April 6, 1986 by Acts 1986, c. 458, 2 revived the right of action and extended the filing deadline to July 1, 1990. By rejoinder, the defendants filed a motion for partial summary judgment, contending that § 8.01-250 vests them with a property interest 3 and that § 8.01-250.1 violates that part of the due process clause of the Constitution of Virginia, which provides that "no person shall be deprived of his ... property without due process of law".

Finding that the issue framed by the parties "may be determinative in this case" and that it is controlled by the Constitution and laws of this Commonwealth, the federal district court has certified the following question:


In oral argument before this Court, the defendants advocated the affirmative of the question and the plaintiffs the negative. Although the question as certified does not implicate the federal Constitution, the plaintiffs argue that the due process clause of the Fourteenth Amendment and the due process clause of the Virginia Constitution are coextensive and, hence, that decisions of the United States Supreme Court are relevant to determination of the certified question. They cite Chase Securities Corp. v. Donaldson, 325 U.S. 304, 311, 65 S.Ct. 1137, 1141, 89 L.Ed. 1628 (1945), where the Court said:

In Campbell v. Holt, [115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483 (1885) ], this Court held that ... a state legislature, consistently with the Fourteenth Amendment, may repeal or extend a statute of limitations, even after right of action is barred thereby, restore to the plaintiff his remedy, and divest the defendant of the statutory bar.

See also Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 243-44, 97 S.Ct. 441, 450-51, 50 L.Ed.2d 427 (1976).

These decisions support the plaintiffs' view that "statutes of limitation are procedural in nature" and that "there are no vested rights in procedural statutes" for purposes of the Fourteenth Amendment. But the federal decisions are inapposite to our inquiry. Code § 8.01-250 is not a procedural statute.

An ordinary statute of limitations is a procedural statute, one which creates a temporal bar to the maintenance of a legal remedy arising out of an accrued cause of action. Code § 8.01-250 is not a statute of limitations. In Virginia Military Institute v. King, 217 Va. 751, 758, 232 S.E.2d 895, 899 (1977), the plaintiff argued that the statutory precursor of Code § 8.01-250 was "the applicable statute of limitations". In response to that argument, we said:

We do not agree. That statute sets an outside limit within which the applicable statutes of limitation operate. Its purpose is ... to establish an arbitrary termination date after which no litigation of the type specified may be initiated.


Although "statutes of limitations" and "statutes of repose" are terms sometimes loosely employed as interchangeable, they are, in fact, different in concept, definition, and function. As a general rule, the time limitation in a conventional statute of limitations begins to run when the cause of action accrues. We are of opinion the General Assembly intended Code § 8.01-250 to be a statute of repose. The time limitation in such a statute begins to run from the occurrence of an event unrelated to the accrual of a cause of action, and the expiration of the time extinguishes not only the legal remedy but also all causes of action including those which may later accrue as well as those already accrued. Cheswold Vol. Fire Co. v. Lambertson Const., 489 A.2d 413, 421 (Del.1985); see also Restatement (Second) of Torts § 899, comment g (1979). Conceptually, statutes of repose reflect legislative decisions that "as a matter of policy there should be a specific time beyond which a defendant should no longer be subjected to protracted liability. Thus a 'statute of repose' is intended as a substantive definition of rights as distinguished from a procedural limitation on the remedy used to enforce rights." Stevenson, Products Liability and the Virginia Statute of Limitations--A Call for the Legislative Rescue Squad, 16 U.Rich.L.Rev. 323, 334 n. 38 (1982). See generally McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579 (1981).

As a statute of repose, Code § 8.01-250 is a redefinition of the substantive rights and obligations of the parties to any litigation "arising out of the defective and unsafe condition of an improvement to real property". Specifically, we think the lapse of the statutory period was meant to extinguish all the rights of a plaintiff, including those which might arise from an injury sustained later, see Deaconess Home Assn. v. Turner Constr., 14 Ohio App.3d 281, 283-84, 470 N.E.2d 950, 954 (1984), and to grant a defendant immunity from liability for all the torts specified in the statute, see Harris v. Clinton Corn Processing Co., 360 N.W.2d 812, 816 (Iowa 1985).

The defendants contend that this legislative grant of immunity is a vested right and that they cannot be divested of that right by a statute enacted after the statutory period has expired. 4 It is immaterial to our decision whether this right is characterized as "vested" or as "substantive".

This Court has consistently held that the due process clause of the Virginia Constitution protects not only rights that have vested, but also substantive property interests which may ripen into vested rights. In Shiflet v. Eller, 228 Va. 115, 319 S.E.2d 750 (1984), the question on appeal was whether a tort-feasor's potential right to contribution from a joint tort-feasor was entitled to due process protection. We noted that such a right arises at the time damage results from a joint tort and that such a right does not vest until one of the tort-feasors has paid an unfair share of the common obligation. We concluded that the right, although inchoate, is substantive, and we held that " 'substantive' rights, as well as 'vested' rights, are included within those interests protected from retroactive application of statutes", id. at 120, 319 S.E.2d at 753, because "[s]uch a retroactive application ... would violate ... due process rights and would be invalid", id. at 121...

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