Tomlinson v. Owens-Corning Fiberglas Corp.

• Decision Date: 03 March 1989
• Docket Number: OWENS-CORNING,No. 62223,62223
• Citation: 244 Kan. 506,770 P.2d 833
• Parties: Richard W. TOMLINSON, Plaintiff, v.FIBERGLAS CORPORATION, Defendant.
• Court: Kansas Supreme Court

Page 833

770 P.2d 833

244 Kan. 506

Richard W. TOMLINSON, Plaintiff, v. OWENS-CORNING FIBERGLAS CORPORATION, Defendant.

No. 62223.

Supreme Court of Kansas.

March 3, 1989.

Syllabus by the Court

1. An employee is barred under K.S.A. 44-5a07 from bringing a third-party action against his employer if his only exposure to the employer's product allegedly causing his occupational disease arose out of and in the course of his employment with that employer.

2. Under the provisions of K.S.A. 44-5a01 et seq., an employee is not entitled to workers' compensation benefits unless his disablement from an occupational disease and the filing of his claim occur within one year from his last injurious exposure to the hazards of such disease.

3. As a general rule, exclusive of exceptions created in the Workers' Compensation Act itself, the Act's operation is exclusive of all other remedy and liability.

4. K.S.A. 44-5a01 et seq. affords an employee a remedy for disablement occurring within one year from the last injurious exposure to the hazard of an occupational disease arising out of and in the course of his employment, and thus any recovery for disablement occurring one year or more from the last injurious exposure would be barred.

5. Under the facts of this case, the application of K.S.A. 44-5a01 et seq. does not unconstitutionally deny the defendant a remedy.

Dennis J. Dobbels, of Polsinelli, White, Vardeman & Shalton, P.C., Kansas City, Mo., argued the cause, and Joseph R. Colantuono and Bruce W. Beye, of the same firm, Overland Park, were with him on the brief, for defendant Owens-Corning Fiberglas Corp.

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 on the brief, for plaintiff.

On certification of four questions of law from the United States District Court for the District of Kansas.

Question No. 1: If plaintiff's only exposure to a defendant's products allegedly causing his occupational disease arose out of and in the course of his employment with that defendant, does the exclusivity provision of the Workers' Compensation Act bar a third-party claim by the plaintiff against the employer defendant? Answer--Yes. Question No. 2: If plaintiff's disablement does not occur within one year from the last injurious exposure to the hazard of an occupational disease arising out of and in the course of his employment, is the plaintiff entitled to workers' compensation benefits? Answer--No. Question No. 3: If disablement does not occur within one year from the last injurious exposure to the hazard of an occupational disease arising out of and in the course of the plaintiff's employment, does the occupational disease resulting from such injurious exposure constitute an "injury" within the provisions of the Workers' Compensation Act resulting in the applicability of the exclusive remedy doctrine? Answer--Yes. Question No. 4: If a defendant employer is not liable for the payment of workers' compensation benefits because a plaintiff's last exposure to the hazard of an occupational disease causing his disablement arose out of and in the course of his employment with his last employer, and if that employer is immune from civil liability as a result of participation under the Workers' Compensation Act, would such an interpretation of the Act amount to an unconstitutional denial of a remedy? Answer--No.

ALLEGRUCCI, Justice:

The plaintiff, Richard W. Tomlinson, filed suit against various defendants in the United States District Court for the District of Kansas. Plaintiff's suit alleged that he had developed an asbestos-related disease through exposure to products manufactured, distributed, and sold by the defendants. One of the defendants, Owens-Corning Fiberglas Corporation (OCF), filed a motion in the United States District Court for summary judgment, alleging that the plaintiff's action was barred by the provisions contained in K.S.A. 44-5a06 and K.S.A. 44-5a07.

The United States District Court has certified to this court for its review four questions related to OCF's motion. The order of certification meets the requirements of K.S.A. 60-3201 et seq., and we accept certification. For purposes of this review, the District Court's order of certification provides, in part:

"[P]laintiff's exposure to excessive quantums of asbestos causing his asbestos-related occupational disease [which resulted in his claim] against the named defendants occurred within the years 1965 to 1971. The plaintiff worked for OCF and was exposed to its asbestos-containing thermal insulation products during the years 1965, 1966 and 1968. Plaintiff's only exposure to OCF's products occurred while employed by OCF. Plaintiff's disablement did not occur within one year of his last injurious exposure to the products of OCF. Plaintiff has filed a workers' compensation action against his last employer, AC & S, Inc., claiming that his asbestos-related disease also arose out of and during the course of his employment with AC & S, Inc. None of the other defendants against whom plaintiff brought this civil action employed plaintiff, and those defendants do not claim plaintiff is barred by the Act from pursuing a civil action against these defendants."

In addressing the first certified question, we note that occupational diseases, such as asbestosis, are brought within the scope of the Kansas Workers' Compensation Act by K.S.A. 44-5a01 et seq. K.S.A. 44-5a01(a) provides:

"Where the employer and employee or workman are subject by law or election to the provisions of the workmen's compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen's compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases."

The exclusive nature of the remedy provided by the occupational disease portion of the Workers' Compensation Act is established by K.S.A. 44-5a07:

"Securing payment of compensation; liability exclusive. An employer subject to the provisions of this act shall secure the payment of compensation in accordance with the provisions of this act in any method prescribed by the provisions of section 44-532 of the workmen's compensation law, and such insurance or other security may be separate and distinct from the insurance or other security under the workmen's compensation law. Where the foregoing requirement is complied with the liability of the employer under this act shall be exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise."

The occupational disease portion of the Act expressly adopts the "last injurious exposure" rule. K.S.A. 44-5a06 states, in part:

"The date when an employee or workman becomes incapacitated by an occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, shall be taken as the date of the injury equivalent to the date of accident under the workmen's compensation act. Where compensation is payable for an occupational disease, the employer in whose employment the employee or workman was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, without the right to contribution from any prior employer or insurance carrier."

Clearly, under the last injurious exposure rule, the entire responsibility for a worker's occupational disease is placed upon the employer who last created the risk of the worker's contraction of the disease by exposing him to the substance which caused the disease. Previous employers, who may also have exposed the worker to the potentially harmful substance, are shielded from liability under the rule. The rationale for the rule was stated in Bracke v. Baza'r, 293 Or. 239, 646 P.2d 1330 (1982):

"The last injurious exposure rule of proof more typically applies where one employment caused the disease, but more than one could have. By arbitrarily assigning liability to the last employment which could have caused the disease, the rule satisfies claimant's burden of proof of actual causation. The reason for the rules lies not in their achievement of individualized justice, but rather in their utility in spreading liability fairly among employers by the law of averages and in reducing litigation.

....

"The operation of the rule, as we said in Inkley [v. Forest Fiber Products Co., 288 Or. 337, 605 P.2d 1175 (1980) ], provides certainty in a way which is 'somewhat arbitrary.' It operates generally for the benefit of the interests of claimants. It is fair to employers only if it is applied consistently so that liability is spread proportionately among employers by operation of the law of averages. We hold that employers have and may assert an interest in the consistent application of the last injurious exposure rules, either as to proof or liability, so as to assure that they are not assigned disproportionate shares of liability relative to other employers who provide working conditions which generate similar risk." 293 Or. at 248-50, 646 P.2d 1330.

Although in many cases the rule has been adopted by statute, in a number of jurisdictions the courts have adopted the rule in the absence of legislation. E.g., Osteen v. A.C. & S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981). See Annot., 34 A.L.R.4th 958.

The Court of Appeals of Maryland upheld that state's adoption of the last injurious exposure rule in Lowery...