White v. Johns-Manville Corp.

• Decision Date: 10 January 1985
• Docket Number: JOHNS-MANVILLE,No. 50772-4,50772-4
• Citation: 693 P.2d 687,103 Wn.2d 344
• Parties: , 49 A.L.R.4th 955, 53 USLW 2364 .CORP., Defendant, Eagle-Picher Industries, Inc., et al., Appellants. Supreme Court of Washington, En Banc
• Court: Washington Supreme Court

Page 344

103 Wn.2d 344

693 P.2d 687, 49 A.L.R.4th 955, 53 USLW 2364

Certification From the United States District Court for the

Western District of Washington In Jeanne Zenzen

WHITE, as Personal Representative of the

Estate of August Zenzen,

deceased, Respondent, v. JOHNS-MANVILLE CORP., Defendant, Eagle-Picher Industries, Inc., et al., Appellants.

No. 50772-4.

Supreme Court of Washington,

En Banc.

Jan. 10, 1985.

Burns, Schneiderman & Davis, P.S., George A. Finkle, Seattle, for plaintiff.

Williams, Lanza, Kastner & Gibbs, Randy J. Aliment, Joseph J. Lanza, Seattle, for defendants.

DOLLIVER, Justice.

The United States District Court for the Western District of Washington, pursuant to RCW 2.60, has certified the following issue:

Does the "discovery" rule set forth in Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 598 P.2d 1358 (1979) and Sahlie v. Johns-Manville Corp., 99 Wash.2d 550, 663 P.2d 473 (1983) apply to plaintiff's actions commenced under Washington Survival and Wrongful Death Statutes, R.C.W. Sections 4.20.010, 4.20.046 and RCW 4.20.060, so as to toll the applicable statutes of limitation until such time as plaintiff, as the surviving spouse and personal representative of the decedent, discovers or should reasonably have discovered the essential elements of her possible causes of action?

The stipulated facts are:

August Zenzen was exposed to asbestos while working as a welder/burner in shipyards during 1942 and 1943. He died March 8, 1974 of pulmonary congestion alleged to be as a consequence of mesothelioma of the right pleura. Mr. Zenzen's surviving spouse and personal representative, Jeanne Zenzen White, commenced this lawsuit against the defendant companies on October 3, 1980. Plaintiff alleged that Mr. Zenzen's prior shipyard exposure to asbestos-containing products manufactured and/or distributed by defendants was the cause of his death; that the decedent never knew that he was suffering from any adverse effects of exposure to asbestos-containing materials; and that she did not learn until late 1978 that his death may have been due to asbestos exposure.

In this lawsuit, plaintiff has alleged three distinct causes of action:

(1) A claim under RCW 4.20.010 (wrongful death statute);

(2) A claim under RCW 4.20.046 (survival statute); (3) A claim under RCW 4.20.060 (survival of actions for personal injury resulting in death).

Defendants assert that all three causes of action are time barred by the applicable statutes of limitation, and that the "discovery" rule tolling the statutes does not apply after death of decedent in favor of his personal representative and statutory beneficiaries.

Plaintiff responds that the applicable statutes of limitation were tolled until she, as personal representative and statutory beneficiary, discovered or reasonably should have discovered the elements of her cause of action. See, e.g., Sahlie v. Johns-Manville Corp., 99 Wash.2d 550 (1983).

"Mesothelioma is a type of cancer affecting primarily the lining of the lungs. It was relatively rare until the widespread use of asbestos." Comment, Manifestation: The Least Defensible Insurance Coverage Theory for Asbestos-Related Disease Suits, 7 U.Puget Sound L.Rev. 167, 170 n. 9 (1983) (citing Mehaffy, Asbestos-Related Lung Disease, 16 Forum 341, 343 (1980)). "Mesothelioma becomes a serious problem 30 to 35 years after onset of exposure. Untreated cases almost always result in death within a year, and current conventional treatment has done little to alter the prognosis." Comment, 7 U.Puget Sound L.Rev. at 170 n. 9 (citing 4A R. Gray, Attorney's Textbook of Medicine p 205C.72 (3d ed. 1980)). The medical profession has produced strong evidence establishing a causal connection between mesothelioma and asbestos exposure. In his study of 307 consecutive asbestos worker deaths occurring between 1943 to 1964, Dr. Irving Selikoff found four with pleural mesothelioma and six with peritoneal mesothelioma; this is considered to be an extraordinarily high occurrence. Six of the seven men with mesothelioma in the autopsy series had histories of prolonged employment in the asbestos industry. See Comment, Asbestos Litigation: The Dust Has Yet to Settle, 7 Fordham Urb.L.J. 55, 60-61 (1978) (citing Selikoff, Relation Between Exposure to Asbestos and Mesothelioma, 272 New Eng.J.Med. 560 (1965)).

We answer the federal court's certified issue in the affirmative.

I

Wrongful Death Action

A.

Defendants argue that the "discovery rule", applicable to medical malpractice and products liability actions, does not apply to wrongful death actions; that the wrongful death statute creates a new and original cause of action in the claimant which accrues and vests in the statutory beneficiaries on the date of the decedent's death; and that there is no logical or equitable reason to extend the "accrual" date for a wrongful death action past the date the decedent dies since death marks the time at which the claimant has the duty to inquire into and prosecute an action based on the decedent's death.

Plaintiff, the deceased's surviving spouse and personal representative, argues the "discovery rule" should be applied to wrongful death actions. She contends she should have the chance to prove at trial that, at the time of the deceased's death, neither she nor the deceased knew or should have known his death was caused by his occupational exposure to asbestos.

Preliminarily, we note we are not faced with, nor do we decide, a case in which the deceased is alleged by the defendant to have known the cause of the disease which subsequently caused his death. In that case there is a question as to whether the wrongful death action of the deceased's representative "accrued" at the time of the decedent's death, when the decedent first discovered or should have discovered the injury, or when the claimant first discovered or should have discovered the cause of death. See Wilson v. Johns-Manville Sales Corp., 684 F.2d 111 (D.C.Cir.1982); Fisk v. United States, 657 F.2d 167, 170-72 (7th Cir.1981); In re Johns-Manville Asbestosis Cases, 511 F.Supp. 1235, 1239 n. 6 (N.D.Ill.1981).

B.

The wrongful death statute, RCW 4.20.010, provides:

When the death of a person is caused by the wrongful act, neglect or default of another his personal representative may maintain an action for damages against the person causing the death ...

Washington's wrongful death statute does not contain an express statute of limitation; rather, it is governed by RCW 4.16, which sets forth the statutes of limitation applicable to different types of actions. Dodson v. Continental Can Co., 159 Wash. 589, 591-92, 294 P. 265 (1930). (Unlike in Washington, most states have a special statutory limitation, independent of the general statute of limitation, within which an action for wrongful death must be brought. See S. Speiser, Recovery for Wrongful Death § 11:8 (2d ed. 1975). The 3-year tort statute of limitation (RCW 4.16.080(2)) applies to the present action.) RCW 4.16.010 provides: "Actions can only be commenced within the periods herein prescribed after the cause of action shall have accrued ..." (Italics ours.)

The issue in this case is when a wrongful death cause of action accrues. In an ordinary personal injury action, the general rule is that a cause of action "accrues" at the time the act or omission occurs. 51 Am.Jur.2d Limitation of Actions § 135, at 704 (1970). In certain torts, however, injured parties do not, or cannot, know they have been injured; in these cases, a cause of action accrues at the time the plaintiff knew or should have known all of the essential elements of the cause of action. The rule of law postponing the accrual of the cause of action is known as the "discovery rule". See Sahlie v. Johns-Manville Sales Corp., 99 Wash.2d 550, 552, 663 P.2d 473 (1983) (products liability action due to asbestos exposure); Ohler v. Tacoma Gen. Hosp., 92 Wash.2d 507, 598 P.2d 1358 (1979) (medical malpractice action).

C.

Defendants first contend the issue in the present case was decided in Dodson v. Continental Can Co., 159 Wash. 589, 294 P. 265 (1930). We disagree. In Dodson the personal representative of a deceased brought an action against the deceased's employer after the expiration of the 3-year statute of limitation. To get around the statute of limitation, the claimant argued the statute of limitation "accrued" not at the time of the deceased's death but at the time she, the personal representative, was appointed. Rejecting the claimant's argument, we held that the wrongful death action "accrued" at the time of death. Dodson, 159 Wash. at 598-99, 294 P. 265.

Dodson, however, is a prediscovery rule case and is significantly distinguishable from the present case. The claimant here alleges that, at the time of her husband's death, she could not have discovered facts enabling her to prosecute a cause of action, thus invoking the "discovery rule" which would operate to toll the statute of limitation. Dodson merely decided the statutory word "accrued" meant time of death and not appointment of a personal representative; the court, however, assumed the facts necessary to prosecute a cause of action were discoverable.

D.

Defendants next cite several recent state court decisions in which the highest courts of Minnesota, North Dakota, and Pennsylvania held the wrongful death statute of limitation "accrues" at the time of the decedent's death. To toll the statute past the date of death, these courts require the wrongful death claimant to demonstrate the defendant employer fraudulently withheld information from which the plaintiff could have prosecuted a cause of action. DeCosse v. Armstrong Cork Co., 319 N.W.2d 45 (Minn.1982); Krueger v. St. Joseph's Hosp., 305 N.W.2d 18 (N.D.1981); Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181 (1981).

In DeCosse the decedent's personal representative sued an asbestos manufacturer alleging the decedent's death was caused by his...