Welch v. Celotex Corp., 90-9173

Decision Date28 January 1992
Docket NumberNo. 90-9173,90-9173
Citation951 F.2d 1235
PartiesProd.Liab.Rep. (CCH) P 13,037 Dallas V. WELCH, Plaintiff-Appellant, v. CELOTEX CORPORATION, etc., et al., Defendants, Armstrong World Industries, Inc., a corporation incorporated under the laws of Pennsylvania, formerly named Armstrong Cork Co., Fibreboard Corp., a corporation incorporated under the laws of Delaware, individually and as successor in interest to Plan Rubber Asbestos Company, GAF Corporation, a corporation incorporated under the laws of Delaware, individually and as successor in interest to Ruberoid Company, Keene Corporation, a corporation incorporated under the laws of New Jersey, individually and as successor in interest to Baldwin Hill Company, Baldwin-Thret-Hill Company, Keene Building Products Corporation and Ethert Magnesia Co., Pittsburgh-Corning Corporation, a corporation incorporated under the laws of Pennsylvania, United States Mineral Products Co., a corporation incorporated under the laws of New Jersey, and Owens-Illinois, Inc., Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Brent M. Rosenthal, Baron & Budd, PC, Janice Robinson, Dallas, Tex., for plaintiff-appellant.

Greene Buckley Jones & McQueen, Atlanta, Ga., for Celotex.

Neely & Player, Atlanta, Ga., Steven Heath, John H. Peavy, Jr., Athens, Ga., for Raymark.

Appeal from the United States District Court for the Northern District of Georgia.

Before KRAVITCH and BIRCH, Circuit Judges, and KAUFMAN *, Senior District Judge.

FRANK A. KAUFMAN, Senior District Judge:

In this diversity action, Dallas Welch appeals from the district court's grant of summary judgment for appellees on the ground that that court erred in holding that Georgia's applicable two-year statute of limitations barred appellant's personal injury action. We agree with appellant and reverse and remand for further proceedings in accordance with this opinion.


Since 1967 appellant Welch has worked for several companies as an insulator. During that employment, Welch allegedly was exposed to asbestos-containing products manufactured and/or distributed by appellees. In 1984, Welch began to experience shortness of breath and became concerned that he could be developing an asbestos-related disease. On or about December 14, 1984, Welch filed a workers' compensation claim 1, alleging asbestosis, against his employer, American Insulation Company. In June, 1985, Welch's chest was x-rayed. Dr. Holstein, a pulmonary specialist, read that x-ray in April, 1986, and noted some evidence of pleural thickening consistent with pleural asbestosis, but did not diagnose Welch as suffering from asbestosis. On May 1, 1987, Welch underwent a complete medical examination by Dr. Holstein. In an evaluation dated June 22, 1987, Dr. Holstein diagnosed Welch as having asbestosis.

On June 19, 1987, appellant filed this products liability suit, claiming negligence and strict liability in tort. In a supporting affidavit, Welch states that it was not until he consulted his attorney in connection with this action that he learned of the alleged wrongdoing by appellees. Appellant contends, therefore, that the two-year Georgia limitations provision raised in defense by appellees, does not bar appellant's within claim.


The sole issue raised in this appeal is whether the district court properly granted summary judgment on the grounds of limitations. The applicable Georgia statute provides that "[a]ctions for injuries to the person shall be brought within two years after the right of action accrues ..." GA.CODE ANN. § 9-3-33 (1990). In granting appellees' motion for summary judgment, the district court concluded that if the plaintiff had sufficient information to justify the filing of a workers' compensation claim in 1984, he at that time either knew or, by the exercise of reasonable diligence, should have known both the nature of his injuries and the causal connection between them and asbestos. Appellant, in response, contends that his cause of action did not accrue until Dr. Holstein diagnosed him with having asbestosis and also that there is a genuine issue of material fact as to whether he discovered more than two years before the filing of this suit that appellees' wrongful conduct caused his injury.

In continuing tort cases such as this one, the Georgia courts have held that limitations begin to run only when the plaintiff knows, or through the use of reasonable diligence should have discovered, two distinct facts: "the nature of his injury ... [and ] the causal connection between the injury and the alleged negligent conduct of appellee." King v. Seitzingers, Inc., 160 Ga.App. 318, 287 S.E.2d 252, 255 (1981); see also Anderson v. Sybron Corp., 165 Ga.App. 566, 353 S.E.2d 816, 817 (1983), aff'd 251 Ga. 593, 310 S.E.2d 232 (1983); Ballew v. A.H. Robins Co., 688 F.2d 1325, 1327 (11th Cir.1982). However, the Georgia courts have not held that the limitations are tolled until a doctor's diagnosis has been made.

Although this court must look to state law to determine the relevant period of limitations, federal law governs the sufficiency of evidence required in the face of a motion for summary judgment. Bernhardt v. Richardson-Merrell, Inc., 892 F.2d 440, 445 (5th Cir.1990); cf. New England Merchants Nat'l Bank v. Rosenfield, 679 F.2d 467, 473 (5th Cir.1982) (Tjoflat, J.) (sufficiency of evidence on motion for directed verdict is a federal question), cert. denied 459 U.S. 1173, 103 S.Ct. 819, 74 L.Ed.2d 1017 (1983). Summary judgment may be granted only when there is no genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). In determining a motion for summary judgment, the " 'inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.' " Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356-57, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)); see also Clemons v. Dougherty County, GA., 684 F.2d 1365, 1368-69 (11th Cir.1982).

Because Welch filed a workers' compensation claim alleging asbestosis in December, 1984, the district court may have been justified in concluding...

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