Sopha v. Owens-Corning Fiberglas Corp.

• Decision Date: 27 October 1999
• Docket Number: No. 98-1343.,98-1343.
• Citation: 601 N.W.2d 627,230 Wis.2d 212
• Parties: Margaret M. SOPHA, Individually and as Special Administrator of the Estate of Robert W. Sopha, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, Pittsburgh-Corning Corporation, Rapid American Corporation, Owens-Illinois, Inc., Building Service Industrial Sales Co., Inc., Allied Insulation Supply Co., Inc., Sprinkmann Sons Corporation, Milwaukee Insulation Co., Inc., All-Temp Insulation Inc., GAF Corporation, Armstrong World Industries, Asbestos Claim Management Corporation, and Amchem Products, Inc., Defendants-Respondents.
• Court: Wisconsin Supreme Court

230 Wis.2d 212

601 N.W.2d 627

Margaret M. SOPHA, Individually and as Special Administrator of the Estate of Robert W. Sopha, Plaintiff-Appellant, v. OWENS-CORNING FIBERGLAS CORPORATION, Pittsburgh-Corning Corporation, Rapid American Corporation, Owens-Illinois, Inc., Building Service Industrial Sales Co., Inc., Allied Insulation Supply Co., Inc., Sprinkmann Sons Corporation, Milwaukee Insulation Co., Inc., All-Temp Insulation Inc., GAF Corporation, Armstrong World Industries, Asbestos Claim Management Corporation, and Amchem Products, Inc., Defendants-Respondents.

No. 98-1343.

Supreme Court of Wisconsin.

Oral argument September 10, 1999.

Decided October 27, 1999.

For the plaintiff-appellant there were briefs by Bruce A. Ranta and Cunningham & Lyons, S.C., Milwaukee and oral argument by Bruce A. Ranta.

For the defendants-respondents there was a brief by Trevor J. Will, G. Michael Halfenger, Marti L. Schreier and Foley & Lardner, Milwaukee and oral argument by Trevor J. Will.

¶ 1. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

This case comes before the court on certification of the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (1997-98).¹ Margaret Sopha, individually and the Estate of Robert Sopha, acting through the special administrator Margaret Sopha, the plaintiffs, appeals an order of the Circuit Court for Dane County, Gerald C. Nichol, Judge. The order granted the motion of Owens-Corning Fiberglas Corporation et al., the defendants, to dismiss the plaintiffs' action on the ground that it was barred by the statute of limitations. We reverse the order of the circuit court and remand the cause to the circuit court for further proceedings not inconsistent with this opinion.

¶ 2. In March 1987, Robert Sopha and his wife Margaret filed a complaint in the Circuit Court for Milwaukee County seeking damages for injuries to Robert's lungs allegedly caused by exposure to asbestos. The action was dismissed "on the merits and with prejudice."²

¶ 3. The plaintiffs commenced this action in March 1997, alleging that Robert Sopha had been diagnosed with mesothelioma, a malignant condition allegedly caused by exposure to asbestos. The plaintiffs assert, and the circuit court found, that mesothelioma is distinct from the asbestos-related injuries alleged in the plaintiffs' 1987 complaint.

¶ 4. The first issue presented is whether a diagnosis of a non-malignant asbestos-related condition (here either pleural thickening or asbestosis) triggers the statute of limitations for any and all injuries to the plaintiffs caused by exposure to asbestos, or whether a later diagnosis of a distinct and later manifested malignant asbestos-related condition (here mesothelioma) triggers a new statute of limitations on the distinct and later manifested condition. We conclude that a diagnosis of a non-malignant asbestos-related lung pathology does not trigger the statute of limitations with respect to a claim for a later diagnosed, distinct malignant asbestos-related condition.

¶ 5. The second issue presented is whether the doctrine of claim preclusion bars the plaintiffs, whose first action for a non-malignant asbestos-related condition ended in a judgment of dismissal, from bringing a second action for damages for a malignant asbestos-related condition. We conclude that the doctrine of claim preclusion is not applicable in this case.

¶ 6. Our holding in this case implicates important interests for the plaintiffs, defendants, and the legal system. After weighing carefully the interests underlying the statute of limitations, the single cause of action rule, the discovery rule, rules limiting recovery to damages that are reasonably certain and the doctrine of claim preclusion, the court concludes that the plaintiffs should be allowed to go forward with their suit. We hold that a person who brings an action based on a diagnosis of a non-malignant asbestos-related condition may bring a subsequent action upon a later diagnosis of a distinct malignant asbestos-related condition. The diagnosis of a malignant asbestos-related condition creates a new cause of action and the statute of limitations governing the malignant asbestos-related condition begins when the claimant discovers, or with reasonable diligence should discover, the malignant asbestos-related condition.

I

¶ 7. For purposes of this appeal we set forth the following facts. Robert Sopha worked as an insulator from 1951 until his retirement in 1995. He was regularly exposed to insulation products containing asbestos during his employment. Sometime prior to 1987 Robert Sopha was apparently diagnosed with non-malignant pleural thickening. Pleural thickening is a non-malignant physical condition involving the lining surrounding each lung and the lining inside the chest cavity and is often indicative of exposure to asbestos.

¶ 8. In March 1987, Robert Sopha and his wife filed a complaint in the Circuit Court for Milwaukee County seeking damages for injuries to his lungs, namely, "asbestosis, pulmonary fibrosis and other pathology of the lungs plus the risk of cancer," allegedly caused by exposure to asbestos. After the defendants moved to dismiss the lawsuit on the basis of the three-year statute of limitations, the plaintiffs moved to voluntarily dismiss the action. The action was dismissed "on the merits and with prejudice" by order dated October 23, 1989.³ The circuit court made no findings of fact.

¶ 9. In December 1996 Robert Sopha was diagnosed for the first time with mesothelioma, a malignant condition of the pleural lining allegedly caused by exposure to asbestos. The plaintiffs brought an action to recover damages for mesothelioma in March 1997.

¶ 10. Although the defendants, the circuit court and the court of appeals asserts that the case is suitable for summary judgment and that no material facts are in dispute, the parties apparently disagree about the nature of Robert Sopha's injuries in 1987.⁴

¶ 11. The plaintiffs assert that Robert Sopha's 1987 complaint contains numerous generic allegations that were not applicable to Robert Sopha's condition at that time. They assert that although the 1987 complaint indicates that Robert Sopha was diagnosed with asbestosis, he was really diagnosed with non-disabling pleural thickening. Brief and Appendix of Plaintiff-Appellant at 6 n. 1.

¶ 12. The defendants disagree with the plaintiffs' characterization of Robert Sopha's asbestos-related physical condition in 1987. The defendants point out that, according to Robert Sopha's 1987 complaint, he had asbestosis and his injuries were serious, permanent and excruciatingly painful.⁵ The significance of the disagreement between the parties is not altogether clear. The defendants may be suggesting that if Robert Sopha had asbestosis in 1987, he might have been able to prove that it was reasonably certain he would develop mesothelioma and he therefore could have recovered damages for mesothelioma in the 1987 action.

¶ 13. The defendants assert, however, that whether Robert Sopha had asbestosis in 1987 or whether he had pleural thickening is neither material nor in dispute. It is not material, according to the defendants, because under existing law the result is the same regardless of which condition Robert Sopha had in 1987. According to the defendants, the 1997 action is barred. It is not in dispute, according to the defendants, because the plaintiffs offered no evidence at the circuit court in the present case concerning Robert Sopha's diagnosis as of 1987. Joint Brief and Appendix of Defendants-Respondents at 9.

¶ 14. The circuit court and court of appeals assumed, and this court accepts, the following undisputed facts for purposes of the summary judgment ruling: In December 1996 Robert Sopha was diagnosed for the first time with mesothelioma, a malignant condition distinct from the other asbestos-related conditions from which Robert Sopha suffered in 1987. Furthermore, according to the circuit court and court of appeals, it could not be predicted with reasonable certainty in 1987 that Robert Sopha would develop an asbestos-related malignancy. ¶ 15. Robert Sopha died in November 1997 of mesothelioma, and the complaint was amended to include a claim for wrongful death. On November 26, 1997, the defendants moved to dismiss the action on the grounds that the action was barred by the statute of limitations and by the doctrine of claim preclusion. Relying on information outside the pleadings, the circuit court treated the motion to dismiss as one for summary judgments. See Wis. Stat. § 802.06(3).

¶ 16. The circuit court concluded that the statute of limitations barred the 1997 action. The circuit court applied the "single cause of action" rule, which dictates that all claims for personal injury caused by a tortfeasor's course of conduct are part of a single cause of action and must be brought in a single lawsuit. According to the circuit court, the plaintiffs' cause of action against the defendants for all personal injuries caused by exposure to asbestos accrued in the 1980s when the plaintiffs first discovered the injuries caused by Robert Sopha's exposure to asbestos. The circuit court ruled that the later appearance of mesothelioma, a new injury not known earlier, did not start a new limitation period or give the plaintiffs a new cause of action.

¶ 17. Accordingly, the circuit court held that the 1997 cause of action was barred because it accrued more than three years before the 1997 action was commenced. Although the circuit court acknowledged that it was troubled by the result, it concluded it was not at liberty to adopt a new theory of the application of the statute of limitations to asbestos cases.

¶ 18. The circuit court rejected the defendants' argument that claim preclusion barred the plaintiffs' cause of action. The circuit court held that because the plaintiffs could not have recovered for mesothelioma in the 1987 action, claim preclusion would not bar them...