Tyson v. Johns-Manville Sales Corp.

• Decision Date: 15 May 1981
• Docket Number: JOHNS-MANVILLE
• Citation: 399 So.2d 263
• Parties: James R. TYSON, et al. v.SALES CORPORATION, et al. 79-144 to 79-153, 79-323 and 79-518 to 79-523.
• Court: Alabama Supreme Court

Page 263

399 So.2d 263

James R. TYSON, et al. v. JOHNS-MANVILLE SALES CORPORATION, et al.

79-144 to 79-153, 79-323 and 79-518 to 79-523.

Supreme Court of Alabama.

May 15, 1981.

M. Clay Alspaugh and R. Ben Hogan, III of Hogan, Smith & Alspaugh, Birmingham, for appellants.

Albert H. Parnell and A. Lane Young of Freeman & Hawkins, Atlanta, Ga., and Lyman H. Harris of Lorant, Harris & Yearout, Birmingham, for Johns-Manville Sales Corp.

James L. Clark of Lange, Simpson, Robinson & Sommerville, Birmingham, for appellee Owens-Corning Fiberglass Corp. Thomas W. Christian of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee Celotex Corp.

James S. Sledge of Inzer, Suttle, Swann & Stivender, Gadsden, for appellee Forty-Eight Insulation, Inc.

John H. Morrow and Walter J. Sears, III, Birmingham, Henry G. Garrard, III of Erwin, Epting, Gibson & McLeod, Athens, Ga., for appellee Pittsburgh Corning Corp. and Combustion Engineering, Inc.

Wilbur J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellee Eagle-Picher Industries, Inc.

Bibb Allen of London, Yancey, Clark & Allen, Birmingham, for appellee Fibreboard Corp.

William B. Eyster of Eyster, Eyster, Key & Tubb, Decatur, for appellee Keene Corp.

Eugene D. Martenson of Huie, Fernambucq, Stewart & Smith, Birmingham, for appellee Unarco Industries, Inc.

Joe R. Wallace of Davies, Williams & Wallace, Birmingham, for appellee Armstrong Cork Co.

William E. Hereford of Hereford & Blair, Pell City, for appellee Nicolet Industries.

John W. Clark, Jr. of Porterfield, Scholl, Clark & Harper, Birmingham, for appellee Rock Wool Manufacturing Co.

Sydney F. Frazier, Jr. of Cabaniss, Johnston, Gardner, Dumas & O'Neal, Birmingham, for appellee GAF Corp.

William J. Sullivan, Jr. of Sadler, Sadler, Sullivan, Sharp & Stutts, Birmingham, for appellee Flintkote Company, Inc.

Robert D. Norman of Norman, Fitzpatrick & Wood, Birmingham, for appellee Standard Asbestos Manufacturing and Insulating Co., Inc.

W. Michael Atchison of Stranes & Atchison, Birmingham, for appellee Raybestos-Manhattan, Inc.

PER CURIAM.

This is a consolidated appeal by plaintiff asbestos workers, from an order entered in favor of the defendant manufacturers of asbestos products allegedly causing asbestosis injury to the plaintiffs, which held Act No. 80-566, Acts of Alabama 1980, to be inapplicable to these cases and unconstitutional. We reverse the judgment appealed from and remand the several cases for reconsideration in light of this opinion.

The plaintiffs are or have been asbestos insulation workers with the exception of one plaintiff, who was a mason and used asbestos cement in constructing coke ovens. The plaintiffs filed suit on separate dates from November, 1977, to October, 1978. The cases were consolidated for appeal. The plaintiffs sought recovery under the Alabama Extended Manufacturer's Liability Doctrine and for defendants' alleged wantonness and negligence.

Defendants moved for summary judgment, which motions were granted to several defendants on the grounds that the actions were barred by the one-year statute of limitations in § 6-2-39, Code of Alabama 1975, as the plaintiffs had failed to prove exposure to defendants' products within the year preceding the suit. On October 5, 1979, the court entered final summary judgment on these grounds as to the claims of some of the plaintiffs in favor of some of the defendants.

These plaintiffs appealed the final judgments in March, 1980. On May 19, 1980, Act No. 80-566, Acts of Alabama 1980, became effective. ¹ The Act amended § 6-2- 30, Alabama Code 1975, stating that a "civil action for any injury to the person or rights of another resulting from exposure to asbestos, including asbestos-containing products, shall be deemed to accrue on the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action" and that the provisions of the Act "shall apply retroactively to all pending causes of action."

We remanded the cases to the circuit court "to make a determination as to the applicability, if any, of this Act to each case and also as to the constitutionality of the Act." The circuit court ruled that:

Act No. 80-566 is not applicable to these cases and is unconstitutional for the following reasons:

(1) The legislature has expressly exempted these sixteen actions from the retroactive reach of Act No. 80-566 which applies only to causes of action.

(2) Application of a statute of limitations which would revive actions already barred is constitutionally impermissible under the Constitution of Alabama of 1901, Sec. 95.

(3) Act No. 80-566 violates the Constitution of Alabama of 1901, Sec. 45 because the retroactive feature of the Act is not expressed in the title of the Act.

(4) Since it relates only to asbestos exposure, Act No. 80-566 is void in that it violates the equal protection guarantees of both the Alabama and the federal constitutions, as well as Sec. 105 of the Alabama Constitution.

The plaintiffs appealed the circuit court ruling, stating that the court erred in holding Act No. 80-566 to be inapplicable and unconstitutional.

We remand all these claims to the trial court for reconsideration in the light of this opinion. If certain plaintiffs did not refute or take issue with defendants' proof on summary judgment by raising a genuine issue as to plaintiffs' exposure, then summary judgment is appropriate. Even if there is a factual question as to a plaintiff's exposure, if, before the effective date of Act No. 80-566, one year had elapsed between the date of plaintiff's exposure and the date on which plaintiff's action was commenced, then that claim is nevertheless barred by the statute of limitations.

Constitutionality of the Act

We now turn to the constitutionality of Act No. 80-566. We hold that the Act is constitutional under §§ 45, 105, and the equal protection guarantees of the Alabama Constitution of 1901 and the Federal Constitution, and reverse the court's ruling on those issues. However, we hold the Act unconstitutional under § 95 of the Alabama Constitution, as applied to actions which were time barred by the statute of limitations at the time Act No. 80-566 was passed.

A. Constitutionality under § 95 of the Alabama Constitution.

Section 95 of the Alabama Constitution of 1901 states in pertinent part that "the legislature shall have no power to revive any right or remedy which may have become barred by lapse of time, or by any statute of this state. After suit has been commenced on any cause of action, the legislature shall have no power to take away such cause of action, or destroy any existing defense to such suit."

Until May 18, 1980, § 6-2-30 of the Alabama Code of 1975, and Garrett v. Raytheon, 368 So.2d 516 (Ala.1979), dictated the limitations period and date of accrual of causes of actions for injury due to radiation and other insidious agents.

Under §§ 6-2-30 and 6-2-39 of the Alabama Code of 1975, all actions for injury to the person not arising from contract must be commenced within one year after the cause of action has accrued. In Garrett v. Raytheon, supra, the Court held that a cause of action for radiation injury accrued and "the statute of limitations of one year began to run when plaintiff was last exposed to radiation and plaintiff's ignorance of the tort or injury, there being no fraudulent concealment, does not postpone the running of the statute until the tort or injury is discovered." 368 So.2d at 521. Asbestos injury, like radiation injury, results from a latent, insidious agent and, prior to the passage of Act No. 80-566 and Act No. 79-468, Alabama Acts of 1979, ² following Raytheon, a claim based on asbestos injury would have accrued on the last date of plaintiff's exposure to defendant's product.

It is true that the legislature has the inherent power to determine the period within which an action may be brought, provided that the time fixed is reasonable. Sellers v. Edwards, 289 Ala. 2, 265 So.2d 438 (1972); Plant v. Reid, Inc., 294 Ala. 155, 313 So.2d 518 (1975). It also has the power to retroactively alter, extend, or curtail an existing limitations period. However, this power "can only be exercised so as to apply ... where the bar was not complete before the enactment of the statute, for, if the action was ... barred (before enactment), its effect would be to revive a cause of action already barred and would violate § 95...." Floyd v. Wilson, 171 Ala. 139, 141, 54 So. 528 (1911); see, Martin v. Martin, 35 Ala. 560 (1860). Such a statute may be made applicable to "an existing cause of action not then barred, provided it is clear that it was intended to be retroactive...." Cronheim v. Loveman, 225 Ala. 199, 201, 142 So. 550 (1932). (Emphasis added.) However, the Act cannot be permitted to apply retroactively to claims, such as the ones at hand, which had not been brought within one year of the date of last exposure and which, therefore, had been barred under the statute of limitations in existence at the time the action was commenced, because such application would revive a time-barred remedy in contravention of § 95.

This is not the first time that the Court has considered the question of which of two successive statutes of limitations should be applied. We have held that the statute in effect at the time of commencement of action should apply rather than that in effect at the time the cause of action arose. U. S. Veterans Administration v. Walker, 356 So.2d 631 (Ala.1978); Street v. City of Anniston, 381 So.2d 26 (Ala.1980). However, in those cases, the later statute had been enacted before the action was time barred by the previous statute.

Such, however, is not the case here. Here, the bar was complete, the plaintiffs' remedies had been time barred and, therefore, Act No. 80-566 is unconstitutional under § 95, insofar as it is applied to their claims.

We also hold that, as...