Stagg v. Bendix Corp.

• Decision Date: 24 October 1983
• Citation: 472 A.2d 40
• Parties: Kenneth STAGG, Plaintiff, v. BENDIX CORPORATION, et al., Defendants. . Submitted:
• Court: Delaware Superior Court

Page 40

472 A.2d 40

Kenneth STAGG, Plaintiff, v. BENDIX CORPORATION, et al., Defendants.

Superior Court of Delaware New Castle County.

Submitted: Oct. 24, 1983.

Decided: Jan. 4, 1984.

Thomas C. Crumplar and Douglas B. Canfield of Jacobs & Crumplar, Wilmington, for plaintiff.

Richard K. Herrmann and Phebe S. Young of Bayard, Brill & Handelman, Wilmington, for defendant, Bendix Corporation.

WALSH, Judge.

In this asbestos action, Bendix Corporation (Bendix), one of several defendants claimed to have contributed to the plaintiff's asbestos-related ailment, has moved to dismiss the complaint as untimely filed under the applicable statute of limitations (10 Del.C. § 8119). Since material outside the pleadings has been submitted by both parties, the motion will be treated as a motion for summary judgment under Superior Court Civil Rule 56(b). As the nonmovant, plaintiff is entitled to the benefit of inferences to be drawn from any factual disputes which underlie the motion.

Plaintiff claims to have been exposed to various asbestos products during most of his work life, spanning forty-four years beginning in 1939. Specifically, he claims he was exposed to brake linings containing asbestos from 1947 to 1952 and from 1956 to 1972. After 1972, plaintiff was exposed to asbestos products manufactured by parties other than Bendix. Bendix admittedly has manufactured brake linings during those years and, for present purposes, concedes that plaintiff may have been exposed to its product prior to 1973. Bendix is charged with negligence in the manufacture and distribution of asbestos products and the failure to provide potential users with notice of its hazards.

Bendix builds its statute of limitations argument in unusual fashion. It begins by accepting plaintiff's claim that his exposure to its brake linings predated 1973. It next relies upon "medical evidence to be found in asbestos cases" to establish an asbestosis etiology to the effect that scarification of the lungs occurs "about six months" after exposure. In plaintiff's case, final exposure to Bendix's product occurred not later than 1973 and, the argument runs, since the present action was not filed until 1982, it is clearly time barred under Delaware's two year period of limitations.

Plaintiff asserts, through affidavits supporting his position, that the complaint was filed within two years of the time he first became aware that he had been injured through asbestos exposure. In his own affidavit plaintiff contends that it was in "the year or two prior to 1982" that he experienced some difficulty in breathing and considered a possible asbestos connection. But he claims to have been assured by physicians who examined him that he was not suffering from asbestosis. It was only after he consulted Dr. Susan Daum, a specialist in asbestosis diagnosis, in May, 1982, that he was advised that he had asbestosis. Dr. Daum's affidavit, claims that asbestos "does not usually develop until 15 to 25 years after exposure" and she states that she is aware of no report in the medical literature on asbestosis which indicates the condition has developed within six months of asbestos exposure.

While the parties may be in disagreement concerning the etiology of asbestosis, for present purposes plaintiff is entitled to the assumption that his condition did not clinically manifest itself earlier than two years before the action was filed on December 29, 1982. But, the record also supports Bendix's assertion that plaintiff's exposure to its product did not occur after 1973. The question is then posed: Is a claim for harmful asbestos exposure caused by a particular product barred by the Delaware personal injury statute of limitations, where the claim is filed within two years of discovery through clinical manifestation but beyond the period of exposure to that product? Put another way in the context of this case, where a plaintiff seeks recovery from multiple defendants charged with exposing him to their product over an extended period of time, does the claim against each individual defendant, for statute of limitation purposes, date from last exposure to that defendant's product even though manifestation occurs years later?

No Delaware decision has addressed the question of when the statute of limitations begin to run in cases of ailments of prolonged latency. The parties agree that the decision in Layton v. Allen, Del.Supr., 246 A.2d 794 (1968), finds some application since it dealt with the blamelessly ignorant plaintiff who has sustained an inherently unknowable injury. Bendix argues, however, that the Layton rule should not be extended to cover the claims of remote users of products and contends that recent legislative efforts to enlarge the limitation period for the filing of "Agent Orange" claims suggests a legislative recognition that § 8118 does not lend itself to a time of manifestation rationale for product diseases.

Although Layton involved a medical malpractice action and its holding has been largely eroded by specific limitations periods imparted by the Delaware Medical Malpractice Act (18 Del.C. Ch. 68), its rationale continues to be viable. It has proved to be the seminal decision leading to rulings, in cases other than medical malpractice, which have permitted a blamelessly ignorant plaintiff, who relies upon the skill and expertise of another, to file suit, within two or three years from the time when the negligent act was, or should have been, discovered. Isaacson, Stolper & Co. v. Artisan's Savings Bank, Del.Supr., 330 A.2d 130 (1974); Pioneer Nat. Title Ins. Co. v. Child, Inc., Del.Supr., 401 A.2d 68 (1979); Rudginski v. Pullella, Del.Super., 378 A.2d 646 (1977); Cf. Lembert v. Gilmore, Del.Super., 312 A.2d 335 (1973).

It is true, as Bendix asserts, that the Court in Layton did not intend a broad relaxation of the rule of ignorance as exemplified in Mastellone v. Argo Oil Corp., Del.Supr., 82 A.2d 379 (1951). But...