Tomlinson v. Celotex Corp.

• Decision Date: 03 March 1989
• Docket Number: No. 62113,62113
• Citation: 770 P.2d 825,244 Kan. 474
• Parties: , 57 USLW 2564, Prod.Liab.Rep. (CCH) P 12,096 Richard W. TOMLINSON, Plaintiff, v. The CELOTEX CORPORATION, et al., Defendants.
• Court: Kansas Supreme Court

Page 825

770 P.2d 825

244 Kan. 474, 57 USLW 2564, Prod.Liab.Rep.

(CCH) P 12,096

Richard W. TOMLINSON, Plaintiff, v. The CELOTEX CORPORATION, et al., Defendants.

No. 62113.

Supreme Court of Kansas.

March 3, 1989.

Syllabus by the Court

The United States District Court for the District of Kansas certified the following question pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq.:

Does the ten-year limitation of K.S.A. 60-513(b) apply to claims based upon latent diseases and, if so, is it constitutional as applied to this plaintiff?

We hold, under the facts as certified by the United States District Court, that the ten-year limitation of K.S.A. 60-513(b) does apply to claims involving latent diseases, and that such limitation is constitutional.

Dennis J. Dobbels, of Polsinelli, White, Vardeman & Shalton, P.C., Kansas City, Mo., argued the cause, and David A. Welte and Paul E. Vardeman, of the same firm, and Joseph R. Colantuono, of the same firm, Overland Park, were with him on the briefs, for defendants The Celotex Corp., Fibreboard Corp., GAF Corp., Keene Corp., Owens-Corning Fiberglas Corp., Owens-Illinois Corp., Inc., and Pittsburgh-Corning Corp.

Bryce A. Abbott and Michael P. Oliver, of Wallace, Saunders, Austin Brown & Enochs, Chartered, Overland Park, were on the briefs, for defendant Eagle-Picher Industries, Inc.

Dan L. Wulz, of Bryan, Lykins, Hejtmanek & Wulz, P.A., Topeka, argued the cause, and Paul H. Hulsey, of Ness, Motley, Loadholt, Richardson & Poole, P.A., Charleston, S.C., was with him on the brief, for plaintiff.

ALLEGRUCCI, Justice:

This case was filed in the United States District Court for the District of Kansas and comes before this court by certification pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. This court accepted certification, and the question as framed by the certifying order is:

Does the ten-year limitation of K.S.A. 60-513(b) apply to claims involving latent diseases and, if so, is it constitutional as applied to this plaintiff?

The plaintiff, Richard W. Tomlinson, filed this action on May 11, 1987. Based upon theories of strict liability and negligence, plaintiff's suit alleges that he sustained personal injuries through exposure to asbestos manufactured, sold, or distributed by the eight defendants. Defendants named in the suit include The Celotex Corporation, Fibreboard Corporation, GAF Corporation, Keene Corporation, Owens-Corning Fiberglas Corporation, Owens-Illinois Corporation, Inc., Pittsburgh-Corning Corporation, and Eagle-Picher Industries, Inc.

The defendants filed a motion for summary judgment, arguing that plaintiff's claim was barred by the ten-year limitation contained in K.S.A. 60-513(b). Plaintiff responded that the provisions of K.S.A. 60-513(b) do not apply to claims involving injuries arising from latent diseases, and that any application of the statute to such injuries is unconstitutional. In resolving the certified question, the order from the United States District Court states that "it is assumed that plaintiff's exposure to excessive quantums of asbestos, which gave rise to his cause of action against these defendants, occurred within the years 1965 through 1971. The fact of his asbestos-related injury, i.e., diagnosis, by reason of its latent state, was not reasonably ascertainable until September, 1986."

At the time the plaintiff filed this action, K.S.A. 60-513(b) provided:

"Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action."

In the present case, the plaintiff was last exposed to asbestos products manufactured, sold, or distributed by the defendants in 1971. His injuries due to this exposure, however, did not become reasonably ascertainable until approximately 15 years later. The parties dispute the applicability of the last clause of subsection (b) of K.S.A. 60-513 that "in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action." The plaintiff contends that the ten-year limitation contained in subsection (b) does not apply to asbestos-related injuries or other injuries arising from latent diseases.

The ten-year limitation of K.S.A. 60-513(b) has received only limited attention from this court. Prior to its adoption in 1964, a plaintiff had two years in which to bring a cause of action, measured from the time of the plaintiff's injury. Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64 (1951). In 1964, the legislature retained the old rule in part, but also provided that, where the fact of the plaintiff's injury was not reasonably ascertainable until some time subsequent to the defendant's wrongful act, the limitations period would begin only upon the date the injury became reasonably ascertainable to the plaintiff. The legislature then included, however, the ten-year period as a limitation upon the new discoverability provision. In Hecht v. First National Bank & Trust Co., 208 Kan. 84, 94, 490 P.2d 649 (1971), this court summarized the effect of 60-513(b): "The Kansas provision has an outside limitation of ten years, but otherwise is essentially what has been identified as the 'discovery rule.' "

The ten-year limitation contained in K.S.A. 60-513(b) received its most important interpretation in Ruthrauff, Administratrix v. Kensinger, 214 Kan. 185, 519 P.2d 661 (1974). In Ruthrauff, the plaintiff's cause of action arose from an explosion and fire which resulted from the alleged negligent construction of a house. The defendants completed construction of the house in 1959. The explosion and fire, however, did not occur until 1970. This court held that the plaintiff, who filed suit within two years of the date of the explosion and fire, was not barred in bringing her action by the ten-year limitation. The ten-year limitation, the court held, applies "only to those cases in which the fact of injury is not reasonably ascertainable until some time after substantial injury occurs." 214 Kan. at 191, 519 P.2d 661. The ten-year limitation thus had no application "where the fact of substantial injury is immediately apparent as in the case of an explosion and resulting fire." 214 Kan. at 191, 519 P.2d 661.

In reaching this conclusion, the Ruthrauff court first briefly reviewed the rules of statutory construction:

"In construing the statutes of this state words and phrases must be construed according to the context and the approved usage of the language, but technical words and phrases which have acquired a peculiar and appropriate meaning in the law shall be construed according to their meaning acquired in the law. [Citation omitted.] A primary rule for the construction of a statute is to find the legislative intent from its language, and where the language used is plain and unambiguous and also appropriate to an obvious purpose the court should follow the intent as expressed by the words used. [Citation omitted.] In examining an act of the legislature courts are required to consider and construe all parts thereof in pari materia [citation omitted] and may consider the historical background of the legislative act [citation omitted]. It is the duty of the courts to reconcile various provisions of an act in order to make them consistent, harmonious and sensible if that can be done without doing violence to plain provisions contained therein." 214 Kan. at 187-88, 519 P.2d 661.

The court then proceeded to apply these rules to the limitation periods contained in K.S.A. 60-513(b):

"The limitation placed on the various kinds of actions mentioned in K.S.A. 1973 Supp. 60-513(1) through (6) is a primary limitation period imposed by the statute (2 years). Under K.S.A. 60-510 this primary 2-year period is not to commence until each cause of action shall accrue, i.e., when substantial injury results. The 10-year provision is secondary and speaks to this primary period when it states 'but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action.' The 'period' referred to would appear to be the 'period of limitation' mentioned immediately preceding and this refers to the primary 2-year period provided for in the statute. This would indicate to us that the legislature did not intend to place a restriction on the primary 2-year period which commences when the action accrues. It is merely a limitation on the extension of the 2-year period when substantial injury is not immediately ascertainable. If the legislature intended otherwise it could have clearly expressed itself by saying that in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action. This they did not do." 214 Kan. at 191, 519 P.2d 661.

Therefore, because the substantial injury in Ruthrauff was "immediately ascertainable," the ten-year limitation did not apply and the plaintiff's cause of action was not barred. 214 Kan. at 192, 519 P.2d 661.

Although it is not controlling in the present case, it may be noted that the legislature has subsequently acted to reverse the rule in Ruthrauff. In 1987, the legislature amended the last clause of K.S.A. 60-513(b) to provide that "in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action." Thus under the new version of the statute, the ten-year limitation applies to all actions, whether or not the...