Terry v. Tyler Pipe Industries

• Decision Date: 25 September 1986
• Docket Number: Civ. A. No. B-85-1191-CA,B-85-1495-CA.
• Parties: Pauline V. TERRY v. TYLER PIPE INDUSTRIES, A.P. Green Fire Brick Company and A.P. Green Refractories Co., a Division of United States Gypsum Company. Pauline TERRY v. PENNSYLVANIA SAND GLASS CORPORATION, et al.
• Court: U.S. District Court — Eastern District of Texas

645 F. Supp. 1194

Pauline V. TERRY v. TYLER PIPE INDUSTRIES, A.P. Green Fire Brick Company and A.P. Green Refractories Co., a Division of United States Gypsum Company.

Pauline TERRY v. PENNSYLVANIA SAND GLASS CORPORATION, et al.

Civ. A. Nos. B-85-1191-CA, B-85-1495-CA.

United States District Court, E.D. Texas, Beaumont Division.

September 25, 1986.

Mike Jacobellis, Tonahill, Hile, Leister & Jacobellis, Beaumont, Tex., for plaintiff.

Gene Caldwell, Tyler, Tex., David Ledyard, Beaumont, Tex., Robin E. Harvey, Cincinnati, Ohio, Dale G. Markland, Dallas, Tex., John M. Smith, Longview, Tex., for defendants.

MEMORANDUM OPINION

COBB, District Judge.

In a consolidated action before this court, plaintiff Pauline V. Terry alleges the wrongful death of her husband resulted from the defendants' negligence, gross negligence, breach of warranty, and invokes the doctrine of strict products liability. This action is now before this court on defendants' motions for summary judgment.

I. FACTS

Plaintiff's husband, Herschel Terry, was employed by defendant A.P. Green Refractories Company (A.P. Green) from 1948 to 1960, and by defendant Tyler Pipe Industries (Tyler Pipe) from 1965 to 1969. During Terry's employment with these two companies, he was exposed to contaminated mixtures of air and industrial dust as part of his work environment.

In April of 1977, Terry was hospitalized for a severe cough and was treated by his physician, Dr. Bussey. During the admission history taken at this time, Terry acknowledged having been heavily exposed to industrial dust during prior conditions of employment. The hospital admissions summary showed Terry was notified that tuberculosis was suspected and was further diagnosed as having pneumoconiosis bilateral (silicosis). The pneumoconiosis/silicosis diagnosis was discussed with Terry, and he was informed that this diagnosis stemmed from his history of exposure to industrial dust and sand.

In May, 1977, further testing of Terry revealed that tuberculosis was not the cause of his ailment. Dr. Bussey's working diagnosis of pneumoconiosis/silicosis became the approach to Terry's problem, and Terry was again informed of these developments. A radiologist report later confirmed the correctness of Dr. Bussey's initial clinical diagnosis of pneumoconiosis/silicosis.

On January 26, 1980, Terry was hospitalized for accidental injuries. During his treatment for these injuries, Terry was examined by Dr. Bessell, a lung specialist. During this period of hospitalization, Terry again associated his lung problems to the working conditions of his prior employment.¹ On June 12, 1980, Terry filed a workers' compensation claim against Tyler Pipe and A.P. Green for lung problems which he related to dust exposure while in their employment.²

From January of 1981 through November of 1983, Terry was admitted and released from hospitals for respiratory problems associated with the pneumoconiosis/silicosis diagnosis. These respiratory problems eventually led to his death on December 6, 1983. An autopsy performed on Terry shortly thereafter revealed that the cause of his death was industrial related silicosis.

II. PROCEDURAL HISTORY

On August 28, 1985, after a consolidation of a prior similar case, Pauline V. Terry instituted this present action, alleging the wrongful death of her husband. Named in this lawsuit were Terry's employers, A.P. Green and Tyler Pipe, and other suppliers and distributors of the products used by Terry, namely, the Hill & Griffith Co., Inc. (Hill & Griffith), Pennsylvania Glass Sand Corp., (Pennsylvania Glass), and Dresser Industries, Inc. (Dresser). American Colloid Company (American Colloid) was brought into this suit as a third party defendant by Hill & Griffith. Pennsylvania Glass and Hill & Griffith also instituted third party actions against Dresser. A.P. Green and Hill & Griffith have separately filed cross-actions against all other defendants respectively under the ancillary jurisdiction of this court, and seek indemnity and/or contribution in the event judgment is entered against them. All defendants have moved for summary judgment.

III. CLAIMS AGAINST SUPPLIERS AND DISTRIBUTORS OF THE PRODUCTS USED BY DECEDENT ARE BARRED BY LIMITATIONS

A. THE DERIVATIVE NATURE OF THE TEXAS WRONGFUL DEATH ACT

The defendants Pennsylvania Glass, Dresser, Hill & Griffith, and American Colloid, were the suppliers and distributors of the allegedly defective products used by Terry during his employment with A.P. Green and Tyler Pipe. Plaintiff contends that Terry's use of these defective products caused his injuries and death, and now asserts claims for personal injury, breach of warranty and exemplary damages on his behalf. The issue which this court must decide is whether, pursuant to the Texas Wrongful Death Act, plaintiff is entitled to maintain said actions on behalf of Terry when these actions would be barred by limitations if Terry had brought them.

Pursuant to Texas statutory and case law, a cause of action under the Texas Wrongful Death Act is by its very nature a derivative action. Under the present Texas Wrongful Death Act, Section 71.003 of the Texas Civil Practice and Remedies Code provides in part:

(a) This subchapter applies only if the individual injured would have been entitled to bring an action.

The statutory language above clearly indicates that if the decedent cannot assert an action if he had survived, plaintiff likewise cannot maintain such an action. Texas case law is consonant with this position.

In construing Art. 4672, the predecessor statute to Section 71.001, et seq., Texas courts have recognized that a wrongful death action is derivative in that the beneficiaries stand in the decedent's shoes, and, as such, file suit on his behalf. Texas courts have also held that the controlling issue in such a case is whether the tortfeasor is liable to the decedent, and that a wrongful death action cannot be maintained successfully when the decedent could not have recovered had he survived the injuries. Washam v. Hughes, 638 S.W.2d 646 (Tex.App. — Austin 1982, writ ref'd n.r.e.); Schwing v. Bluebonnet Express, Inc., 489 S.W.2d 279 (Tex.1973); Vassallo v. Nederl-Amerik Stoomv Maats Holland, 162 Tex. 52, 344 S.W.2d 421, 424 (1961). The Fifth Circuit also recognizes and adopts this position. Delesma v. City of Dallas, 770 F.2d 1334, 1338 (5th Cir. 1985); Graffagnino v. Fibreboard Corp., 781 F.2d 1111, 1113 (5th Cir.1986). Thus, it is clear to this court a beneficiary seeking a claim under the Texas Wrongful Death Act has no greater cause of action than that which could have been asserted by the deceased.

Because of the derivative nature of a wrongful death action, a defendant is allowed to invoke several defenses that could have been raised against the decedent. Among the defenses recognized by Texas courts in this regard are release,³ contributory negligence,⁴ and governmental immunity.⁵ Although the parties have cited no cases where Texas courts have directly addressed whether limitations is a viable defense which can be asserted against the beneficiaries of the decedent, one federal court which applied Texas law held that if a decedent had survived his injuries and the decedent's recovery would have been barred by limitations, then the beneficiary could not recover. Delesma v. City of Dallas, 588 F.Supp. 35 (N.D.Tex. 1984), aff'd, 770 F.2d 1334 (5th Cir.1985). Although the Fifth Circuit, in affirming this decision, based its opinion on alternative grounds and did not address the present issue, this court is persuaded as to the validity of the cited authority and holds that when a decedent would be barred by limitations from asserting a cause of action, the beneficiaries under the Texas Wrongful Death Act likewise are precluded by limitations from asserting such a claim. Courts in other jurisdictions construing similar statutory language have agreed with this conclusion.⁶ Thus, plaintiff's wrongful death action is barred by the statute of limitations if Terry failed to assert his claim within the appropriate limitation period.

B. STATUTE OF LIMITATIONS FOR PERSONAL INJURIES

Section 16.003 of the Texas Civil Practice and Remedies Code, formerly Art. 5526 of the Revised Civil Statutes of Texas, provides a two-year limitation period in which to file an action for personal injuries. Texas courts have generally recognized under § 16.003(a) that a cause of action for personal injuries accrues from the date the plaintiff learned, or reasonably should have learned of the injury and its probable cause. Weaver v. Witt, 561 S.W.2d 792, 793-94 (Tex.1977); Hays v. Hull, 488 S.W.2d 412, 414 (Tex.1972); Stiles v. Union Carbide Corp., 520 F.Supp. 865 (S.D. Tex.1981); Timberlake v. A.H. Robins, Inc., 727 F.2d 1363, 1364-1366 (5th Cir. 1984); Mann v. A.H. Robins Co., Inc., 741 F.2d 79, 81 (5th Cir.1984). Thus, this discovery test requires that the decedent Terry knew or reasonably should have known (1) he was injured, and (2) the factual cause of his injury.

In determining whether Terry knew or should have known of his injury, Texas courts focus on whether the accumulated effects of Terry's exposure to industrial dust manifested themselves in some type of physical symptoms. Borel v. Fibreboard Paper Products Corp., 493 F.2d 1076, 1102 (5th Cir.1973). Furthermore, Texas case law indicates that a physician's diagnosis of a plaintiff's illness or injury is sufficient to establish that the plaintiff discovered the probable cause of his injuries. See, Dubose v. Kansas City Southern Ry. Co., 729 F.2d 1026 (5th Cir.1984); Fusco v. Johns-Manville Products Corp., 643 F.2d 1181, 1182 (5th Cir.1981); Roman v. A.H. Robins Co., Inc., 518 F.2d 970 (5th Cir. 1975).

It is the opinion of this court that as of May 1977, Terry came to know that he was suffering from a lung disease, and that such disease was causally related to industrial dust exposure during his employment with A.P. Green and Tyler Pipe....