O'Stricker v. Jim Walter Corp., 82-403

• Decision Date: 13 April 1983
• Docket Number: No. 82-403,82-403
• Citation: 4 Ohio St.3d 84,447 N.E.2d 727
• Parties: , 4 O.B.R. 335 O'STRICKER et al., Co-Executors, Appellants, v. JIM WALTER CORPORATION et al., Appellees.
• Court: Ohio Supreme Court

Page 84

4 Ohio St.3d 84

447 N.E.2d 727, 4 O.B.R. 335

O'STRICKER et al., Co-Executors, Appellants, v. JIM WALTER CORPORATION et al., Appellees.

No. 82-403.

Supreme Court of Ohio.

April 13, 1983.

Syllabus by the Court

1. Absent legislative definition, it is left to the judiciary to determine when a cause "arose" for purposes of statutes of limitations.

2. When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purposes of the statute of limitations contained in R.C. 2305.10.

Wilmo O'Stricker, plaintiff-appellant, was trained and pursued his trade as plasterer until 1979. Beginning in 1969 and continuing until he quit working, plaintiff was a journeyman fireproofer, which entailed applying fireproofing material to new and existing commercial and public structures. Some of the fireproofing material used contained asbestos, a known carcinogenic agent. The material was sprayed through a hose and nozzle, usually in enclosed spaces, onto decks, beams and columns. Although plaintiff had worn a respirator early in his career as a fireproofer, and such was supplied by the contractors, plaintiff apparently discontinued its use due to discomfort and the respirator's failure to filter out all dust.

Sometime prior to November 1978, plaintiff began to experience shortness of breath, loss of balance, difficulty in swallowing and hoarseness. Upon consulting a physician, plaintiff discovered the possible relation between his illness and asbestos exposure. Following a period of hospitalization and a biopsy, in June 1979 he was diagnosed as suffering from squamous cell carcinoma of the larynx. Plaintiff's larynx was removed in December 1979. ¹

This action was brought August 31, 1979, plaintiff claiming negligence and gross negligence in the production and distribution of various fireproofing materials alleged to contain asbestos. Plaintiff further alleged strict liability in tort, claiming defendants introduced defective products into the stream of commerce, and sought compensatory and punitive damages for his injuries.

The various defendants, ² who were claimed to have mined, manufactured or distributed asbestos and fireproofing products containing asbestos used by plaintiff, answered and denied liability. Each raised as an affirmative defense, inter alia, that the action was barred by R.C. 2305.10, the applicable statute of limitations. In their answers to interrogatories propounded by plaintiff, the defendant corporations indicated that in no event were any asbestos fireproofing products manufactured or distributed by them after 1973. Plaintiff, however, in his answers to interrogatories and in his deposition, testified that he continued to be exposed to defendants' fireproofing materials containing asbestos as late as 1979.

Plaintiff moved for a preliminary order to clarify the applicable statute of limitations, contending that his cause of action arose at the date of discovery of the injury. The trial court, applying R.C. 2305.10, the bodily injury statute of limitations, held that the action must be commenced within two years of plaintiff's last exposure to asbestos, and dismissed the complaint, finding his last exposure to be in 1973.

Plaintiff then appealed to the court of appeals, which reversed and remanded the cause. Although it held that plaintiff's cause of action accrued no later than his last exposure to asbestos products manufactured by defendants, the court found a question of fact arose over whether plaintiff had been exposed within two years from the date of filing the complaint. Judge (now Justice) James Celebrezze concurred in judgment only, stating he would apply a discovery rule in this case.

The matter is before this court upon the allowance of a motion to certify the record.

Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L.P.A., Maurice L. Heller, Harlan M. Gordon, Richard C. Alkire and Thurlow Smoot, Cleveland, for appellants.

Hesser, Armstrong, Toomey & Disantis Co., L.P.A., Richard J. Disantis and William E. Blackie, III, Cleveland, for appellee W.R. Grace Co.

Joseph N. Giamboi, New York City, for appellee Spraycraft Corp.

David Ross, Cleveland, for appellee Carey Canada, Inc.

Frank S. Hurd and Hilary S. Taylor, Cleveland, for appellee U.S. Mineral Products Co.

James L. Malone, Washington, D.C., for appellees Celotex Corp. and Panacon Corp.

Robert E. Sweeney Co., L.P.A., Robert E. Sweeney and Thomas H. Terry, III, Cleveland, urging reversal for amici curiae, plaintiffs similarly situated.

Jones, Day, Reavis & Pogue, Thomas P. Mulligan, Michael A. Nims, Robert C. Weber, Peter A. Carfagna and

Stephen Q. Giblin, Cleveland, urging affirmance for amicus curiae, Johns-Manville Sales Corp.

CLIFFORD F. BROWN, Justice.

The issue raised for decision by this court is whether plaintiff's action is barred under R.C. 2305.10, the statute of limitations for bodily injury actions. Plaintiff claims his injury (cancer) was caused by exposure to asbestos products mined, manufactured and distributed by defendants.

The past decade has seen an explosion of asbestos-related injury claims against various defendants engaged in asbestos industries. A recent Wall Street Journal article reported that some 16,000 damage suits have been filed and each month 450 additional claims are filed. ³ These claims follow publication of medical research linking asbestos exposure to various forms of cancer, including asbestosis, mesothelioma, lung cancer, and squamous cell carcinoma of the larynx. ⁴ Asbestos exposure may cause disease many years after inhalation of the fibers. See, e.g., Bunker v. National Gypsum Co. (Ind.1982), 441 N.E.2d 8 (twenty-six years); Harig v. Johns-Manville Products Corp. (1978), 284 Md. 70, 394 A.2d 299, 1 A.L.R. 4th 105 (twenty-one years). Given the long latency period of asbestos cancer, statutes of limitations often present formidable roadblocks to prosecution of injury claims.

In the instant case, defendants raise R.C. 2305.10 as a bar to plaintiff's claims. Prior to June 12, 1980, that statute provided:

"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."

In 1980, the General Assembly amended that statute by adding the following proviso, effective June 12, 1980:

"For purposes of this section, a cause of action for bodily injury caused by exposure to asbestos or to chromium in any of its chemical forms arises upon the date on which the plaintiff is informed by competent medical authority that he has been injured by such exposure, or upon the date on which, by the exercise of reasonable diligence, he should have become aware that he had been injured by the exposure, whichever date occurs first."

Plaintiff filed his action prior to the effective date of this amendment to R.C. 2305.10. "It is well settled in other jurisdictions, and it is recognized in Ohio, that the legislature has the power to increase the period of time necessary to constitute a limitation, and also to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations." 34 Ohio Jurisprudence 2d 492-493, Limitation of Actions, Section 8. Accordingly, in order to determine whether the legislatively created discovery rule applies to plaintiff's cause of action, we must first determine whether that action was extinguished under the pre-existing statute of limitations. Turning to the unamended statute, we must focus on the language of accrual in the statute. Here, we must determine under unamended R.C. 2305.10 when the cause of action "arose."

No definition of the subject language appears in the statute. Absent legislative definition, it is left to the judiciary to determine when a cause "arose." Harig v. Johns-Manville Products Corp., supra, at page 75, 394 A.2d 299. In general, a cause of action exists from the time the wrongful act was committed. However, in situations such as the case at bar, the application of the general rule "would lead to the unconscionable result that the injured party's right to recovery can be barred by the statute of limitations before he is even aware of its existence." Wyler v. Tripi (1971), 25 Ohio St.2d 164, 168, 267 N.E.2d 419 . In such cases, a cause of action for damages does not arise until actual injury or damage ensues. See Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St.3d 79, 437 N.E.2d 1194 (cause of action against insurer for failure to obtain coverage accrued at date of loss); Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 433 N.E.2d 147 , paragraph two of the syllabus ("actual injury" rule applied in action for negligence brought by vendee against builder-vendor of completed residence).

In asbestos-cancer cases, most courts which have examined the medical evidence have concluded that bodily injury does not occur contemporaneously with exposure. Eagle-Picher Industries, Inc. v. Liberty Mut. Ins. Co. (C.A. 1, 1982), 682 F.2d 12, 19, fn. 3; Pauley v. Combustion Engineering, Inc. (S.D.W.Va.1981), 528 F.Supp. 759, 764; Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill.App.3d 778, 788, 30 Ill.Dec. 307, 315, 392 N.E.2d 1352, 1360. Compare Insurance Co. of North America v. Forty-Eight Insulations, Inc. (C.A. 6, 1980), 633 F.2d 1212. ⁵ Nevertheless, defendants urge that the general rule should be applied here, so that plaintiff could only pursue his action if it was filed within two years of defendants' last negligent act, i.e., plaintiff's last exposure to defendants' asbestos products. ⁶

Conversely, plaintiff urges that the cause of action "arose" at the time of injury, i.e., when plaintiff discovered his cancer and the causal relationship to asbestos exposure. This...