Wyatt v. A-Best Products Co.

Decision Date30 November 1995
Docket NumberA-BEST
Citation924 S.W.2d 98
PartiesProd.Liab.Rep. (CCH) P 14,433 Herbert E. WYATT and Brenda Wyatt, his wife, Plaintiffs-Appellants, v.PRODUCTS COMPANY, INC., et al., Defendants-Appellees.
CourtTennessee Court of Appeals

George A. Weber, III, Mike G. Nassios, Jere Franklin Ownby, III, of The Law Offices of Peter G. Angelos, Knoxville, and Jerry J. Phillips, of counsel, for Appellants.

Louis C. Woolf, Hugh B. Bright, M. Denise Moretz, J. Ford Little, of Woolf, McClane, Bright, Allen & Carpenter, Knoxville, for Appellee Owens-Illinois, Inc.

Donald F. Paine, Dwight E. Tarwater, Thomas A. Bickers, Andrew R. Tillman, Knoxville, for Appellee Owens-Corning Fiberglas Corporation.

Charles W. Burson, Attorney General and Reporter, Kevin Steiling, Assistant Attorney

General, for Intervenor, Attorney General of the State of Tennessee.

Paul T. Gillenwater of Gillenwater, Nichol & Ames, Knoxville, and David F. Partlett, Vanderbilt University School of Law, Nashville, filed Amicus Curiae brief.

Michael Y. Rowland, Janet Edwards, of Rowland & Rowland, P.C., Knoxville, filed Amicus Curiae brief.

David E. Waite of Brown & Waite, Knoxville, filed Amicus Curiae brief.

Robert H. Hood, G. Mark Phillips, James D. Gandy, III, Joseph C. Wilson, IV, of the Hood Law Firm, Charleston, S.C., and R. Hunter Cagle of Kennerly, Montgomery & Finley, Knoxville, filed brief of Amici A.P. Green Industries, Inc., Armstrong World Industries, Inc., Asbestos Claims Management Corporation f/k/a National Gypsum Company, GAF Corporation, T & N PLC, and United States Gypsum Company.

SUSANO, Judge.

The complaint in this case seeks damages for lung disease caused by exposure to asbestos. Herbert E. Wyatt (Wyatt) sued numerous manufacturers and sellers of products to which he was allegedly exposed during his working years. His wife, Brenda Wyatt, sued for loss of consortium. The trial judge granted the defendants summary judgment. He held that the Wyatts' action was time-barred by the ten-year statute of repose found at T.C.A. § 29-28-103(a) 1, a part of the Tennessee Products Liability Act of 1978 (TPLA) 2. He also concluded that the 1979 amendment 3 to the TPLA, codified at T.C.A. § 29-28-103(b) 4, the so-called asbestos exception, could not be constitutionally construed to revive the Wyatts' already-barred claims. This latter holding was based on the trial court's determination that the defendants had acquired a vested right in repose as a result of the 1978 enactment of the TPLA, and that this vested right could not be retroactively divested by the asbestos exception. The trial court also struck down the asbestos exception as unconstitutional class legislation in violation of Article XI, Section 8 of the Tennessee Constitution. The Wyatts appeal, raising issues that pose the following questions:

1. Did the defendants acquire a right in the bar of the ten-year period of limitations that could not be divested by enactment of the asbestos exception without running afoul of Article I, Section 20, of the Tennessee Constitution?

2. Is the asbestos exception unconstitutional class legislation in violation of Article XI, Section 8, of the Tennessee Constitution?

I

Wyatt worked as a carpenter from 1951 to 1984. He claims employment-related exposure to products containing asbestos that were manufactured and/or sold by the defendants. Although it is not clear when he was last exposed to asbestos, it is undisputed that none of the defendants sold or distributed any asbestos-containing products relevant to this action within ten years of July 1, 1978, the effective date of the original enactment of the TPLA.

In 1984, Wyatt opted for early retirement due to health problems, including unexplained shortness of breath. In May, 1989, he was diagnosed with asbestosis. He and his wife filed this action on May 2, 1990, within one year of the date he discovered that he was suffering from an asbestos-related lung disease.

II

The resolution of this case depends upon the proper interpretation of T.C.A. § 29-28-103(a). That statute provides, in pertinent part, as follows:

Any action against a manufacturer or seller of a product for injury to person or property caused by its defective or unreasonably dangerous condition must be brought within the period fixed by §§ 28-3-104, 28-3-105, 28-3-202 and 47-2-725, but notwithstanding any exceptions to these provisions it must be brought within six (6) years of the date of injury, in any event, the action must be brought within ten (10) years from the date on which the product was first purchased for use or consumption ...

(Emphasis added). A threshold question in this case is whether the italicized part of the statute is properly characterized as a statute of limitations, or as one of repose. Wyatt argues that it should be classified as a conventional statute of limitations, pointing out that it was a part of a section entitled "Statute of Limitations" when the TPLA was originally enacted by the legislatures 5; and that the 1979 asbestos exception 6 to the TPLA refers to "limitation of actions" but not "repose." We think, however, that the analysis should revolve around the substance of the statutory language, and its logical and intended effect, rather than how it was entitled or labeled.

Courts in Tennessee have consistently pointed out the distinction between a statute of limitations and a statute of repose. The former has been described as affecting only a party's remedy for a cause of action, while the running of a statute of repose has been said to "nullif[y] both the remedy and the right." Bruce v. Hamilton, 894 S.W.2d 274, 276 (Tenn.App.1993); Via v. General Elec. Co., 799 F.Supp. 837, 839 (W.D.Tenn.1992). Generally speaking, the critical distinction in classifying a statute as one of repose or one of limitations is the event or occurrence designated as the "triggering event," i.e., the event that starts the "clock" running on the time allowed for the filing of suit. In a traditional statute of limitations, the triggering event is typically the accrual of the action, i.e., when all the elements of the action, including injury or damages, have coalesced, resulting in a legally cognizable claim. A statute of repose, on the other hand, typically describes the triggering event as something other than accrual, prompting courts to note that such statutes are "entirely unrelated to the accrual of any action ..." Watts v. Putnam Co., 525 S.W.2d 488, 491 (Tenn.1975), Cronin v. Howe, 906 S.W.2d 910, 913 (Tenn.1995).

Because a statute of repose sets the triggering event as something other than accrual, it can have the effect of barring a plaintiff's claim before it accrues, most typically before the plaintiff becomes aware of his or her injury. See Cronin, 906 S.W.2d at 913; Bruce, 894 S.W.2d at 276 ("A statute of repose is a substantive provision because it expressly qualifies the right which the statute creates by barring a right of action even before the injury has occurred if the injury occurs subsequent to the prescribed time period.") This possibility has prompted courts to hold that statutes of repose affect the substantive right of a party to bring suit, as well as the remedy. Id.

The ten-year period set forth in T.C.A. § 29-28-103(a) is properly characterized as a statute of repose. Its triggering event is the "date on which the product was first purchased for use or consumption." It starts the "clock" running from that occurrence, and the time is up after ten years. When the TPLA was originally enacted in 1978, the legislature did not provide an exception or allowance for latent injuries or the like; its use of the words "in any event" underscores the unconditional nature of the ten-year limitation. Further, several courts that have addressed this issue, or issues closely related to it, have interpreted the ten- year period to be a statute of repose. Via, 799 F.Supp. at 839; Jones v. Five Star Engineering, Inc., 717 S.W.2d 882, 883 (Tenn.1986); Myers v. Hayes Int'l. Corp., 701 F.Supp. 618, 624-25 (M.D.Tenn.1988); Wayne v. TVA, 730 F.2d 392, 400-01 (5th Cir.1984). Accordingly, we hold that the ten-year period established by T.C.A. § 29-28-103(a) is a statute of repose.

III

The next issue we must address is the effect of the TPLA's enactment upon Wyatt's cause of action. Wyatt and supporting amici strenuously and ably argue that since Wyatt's cause of action did not accrue until after the asbestos exception 7 became effective in 1979, that exception should apply to, and save, his action. They rely upon Tennessee caselaw to the effect that "there is no vested right in a statute of limitation unless and until the cause or action has accrued and expired." Watts, 525 S.W.2d at 492. If the ten-year period was a conventional statute of limitations, we would agree, since a statute of limitations generally does not start to run until accrual, which, under the discovery rule (see Teeters v. Currey, 518 S.W.2d 512 (Tenn.1974); McCroskey v. Bryant Air Cond. Co., 524 S.W.2d 487 (Tenn.1975)), does not occur until the plaintiff discovers or should have discovered his or her injury.

Since the ten-year period set forth in T.C.A. § 29-28-103(a) is a statute of repose, we do not believe it is logical to focus on the date of accrual, since, as noted above, the statute runs from the triggering event without regard to accrual. In the present case, the plain language of T.C.A. § 29-28-103(a) requires an interpretation that the ten-year period starts to run from and after the date of the product's original sale for use or consumption. Since it is undisputed that all of the products complained of in this case were sold more than ten years prior to the passage of the 1978 enactment of the TPLA, that act, specifically T.C.A. § 29-28-103(a)...

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