No 

No. 97-614

293 Mont. 531

975 P. 2d 1258

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 67

JOHN GOMEZ,

Plaintiff and Appellant,

v.

STATE OF MONTANA, and its responsible agents

or agencies of the State of Montana as Does One 

through Five; and other unknown defendants as

Does One through Ten,

Defendants and Respondents.

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APPEAL FROM: District Court of the Fourth Judicial District,

In and for the County of Missoula,

The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Richard J. Pyfer (argued); Small, Hatch, Doubek & Pyfer, Helena, Montana

For Respondents:

Michael R. King (argued), Special Assistant Attorney General, Risk

Management & Tort Defense Division, Department of Administration,

Helena, Montana

For Amicus Curiae:

Elizabeth A. Brennan; Rossbach Brennan, Missoula, Montana

(for Montana Trial Lawyers Association)

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Argued: October 20, 1998

Submitted: November 19, 1998

Decided: April 1, 1999

Filed:

__________________________________________

Clerk

Justice Karla M. Gray delivered the Opinion of the Court.

¶1. John Gomez (Gomez) appeals from the judgment entered by the Fourth Judicial 

District Court, Missoula County, on its order granting summary judgment to the 

State of Montana (State). We affirm.

¶2. The issue on appeal is whether the District Court erred in granting summary 

judgment to the State on the basis that Gomez's causes of action were barred by the 

applicable statute of limitations.

BACKGROUND

¶3. Gomez was employed by the City of Missoula, Montana (City), from May of 1988 

to December 4, 1992. His job duties included painting city streets and cleaning 

painting equipment. The paints and other chemicals with which Gomez worked were 

supplied by the State from a State facility located in Missoula.

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¶4. Shortly after beginning his employment with the City, Gomez began experiencing 

medical problems which included headaches, respiratory ailments, nasal polyps and 

infections; he believed his medical problems were connected to his exposure to paint 

and chemical fumes at work. Gomez first sought medical treatment in June of 1989 

and subsequently was referred to four doctors, each of whom eventually confirmed 

his belief that his medical problems stemmed from his workplace exposure to 

chemical fumes.

¶5. In June of 1992, Gomez filed a claim for workers' compensation benefits from the 

City in which he stated that he had been injured by exposure to paints, solvents and 

chemicals in his workplace. The claim apparently was determined to be compensable 

as an occupational disease in August of 1992. In the fall of 1992, Gomez retained an 

attorney for the purpose of suing the State for damages arising from his medical 

problems. Notwithstanding Gomez's belief that he had a cause of action against the 

State at that time, however, he did not initiate legal proceedings. Gomez 

subsequently terminated his employment with the City on December 4, 1992.

¶6. Several years later, Gomez again retained an attorney and filed a claim against 

the State with the Risk Management and Tort Defense Division of the Department of 

Administration (RMTD). The RMTD received the claim on November 6, 1995, and 

denied it on March 4, 1996. Gomez then filed a complaint against the State in the 

District Court on April 2, 1996, alleging that he had been permanently injured by 

products manufactured or distributed by the State and used by him during his 

employment with the City, and bringing causes of action based on products liability, 

negligence and breach of the implied warranties of fitness and suitability. The State 

answered the complaint, conducted discovery and moved the District Court for 

summary judgment based on its assertion that all of Gomez's causes of action were 

barred because the statute of limitations had run. The District Court granted the 

State's summary judgment motion and entered judgment accordingly. Gomez 

appeals.

STANDARD OF REVIEW

¶7. We review a district court's ruling on a summary judgment motion de novo, using 

the same Rule 56, M.R.Civ.P., criteria applied by the district court. Ross v. City of 

Great Falls, 1998 MT 276, ¶9, 967 P.2d 1103, ¶ 9, 55 St.Rep. 1127, ¶ 9. Rule 56(c), M.

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R.Civ.P., provides that 

[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.

In the usual summary judgment case, we begin our review by determining whether the 

moving party established the absence of genuine issues of material fact. Ross, ¶ 10. Here, 

however, the parties agree on the material facts and, as a result, the question before us is 

whether the District Court correctly concluded that the State was entitled to judgment as a 

matter of law. We review a district court's conclusions of law to determine whether the 

court's interpretation of the law is correct. Ross, ¶ 10.

DISCUSSION

¶8. Did the District Court err in granting summary judgment to the State on the 

basis that Gomez's causes of action were barred by the applicable statute of 

limitations?

¶9. Before addressing the issue before us, it is appropriate to briefly review statute of 

limitations principles applicable to factual scenarios similar to the present case. First, 

the parties do not dispute that the three causes of action Gomez alleged against the 

State--products liability, negligence and breach of implied warranties--sound in tort 

and that tort actions must be commenced within three years of the date the cause of 

action accrues. See § 27-2-204(1), MCA; Hando v. PPG Industries, Inc. (1989), 236 

Mont. 493, 501, 771 P.2d 956, 961; Bennett v. Dow Chemical Co. (1986), 220 Mont. 

117, 122, 713 P.2d 992, 995.

¶10. Section 27-2-102(1)(a), MCA, provides that

a claim or cause of action accrues when all elements of the claim or cause exist or have 

occurred, the right to maintain an action on the claim or cause is complete, and a court or 

other agency is authorized to accept jurisdiction of the action . . . .

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A party's lack of knowledge of a cause of action or its accrual generally does not postpone 

the commencement of the statute of limitations period. Section 27-2-102(2), MCA. Under 

the "discovery rule," however, the limitations period does not begin to run when the facts 

constituting a claim or cause of action for personal injury are, by their nature, concealed or 

self-concealing, until the injured party has discovered the facts constituting the claim or, 

with due diligence, should have discovered those facts. See § 27-2-102(3)(a), MCA; 

Kaeding v. W.R. Grace & Co., 1998 MT 160, ¶ 17, 961 P.2d 1256, ¶ 17, 55 St.Rep. 640, 

¶ 17.

¶11. We previously have held that, where a person's exposure to chemicals or other 

substances results in a latent disease or injury, the situation involves facts which, by 

their nature, are self-concealing. See, e.g., Hando, 236 Mont. at 501-02, 771 P.2d at 

962; Kaeding, ¶ 17. Consequently, in latent disease or injury cases, the point at which 

the statute of limitations begins to run is ascertained by applying the discovery rule 

and determining when the injured person knew or, in the exercise of due diligence, 

should have known of the facts constituting the cause of action.

¶12. Finally, when a claim is filed with the RMTD prior to bringing suit, the statute 

of limitations on the claim is tolled for 120 days from the date the RMTD receives the 

claim. Section 2-9-301(2), MCA. Thus, in the present case, when the RMTD received 

Gomez's claim on November 6, 1995, the three-year statute of limitations applicable 

to his tort causes of action was tolled for 120 days.

¶13. The District Court applied the above principles in analyzing whether Gomez's 

causes of action were barred as a matter of law. Applying the three-year tort statute 

of limitations and tolling that limitations period for 120 days as a result of Gomez 

filing his claim with the RMTD, the court counted backward 3 years and 120 days 

from April 2, 1996--the date on which Gomez filed his District Court complaint--and 

determined that, if Gomez's causes of action against the State accrued prior to 

December 3, 1992, they would be time barred. It then determined, based on the 

medical notes and reports from Gomez's doctors filed by the State in support of its 

motion for summary judgment, that the latest time Gomez knew or should have 

known that his medical problems were caused by exposure to paint and chemical 

fumes at his workplace was November of 1992. As a result, the District Court 

concluded that, under the discovery rule, Gomez's causes of action accrued prior to 

December 3, 1992, and were barred by the three-year statute of limitations.

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¶14. Gomez does not challenge the District Court's calculations or conclusions 

regarding application of the discovery rule. Indeed, he concedes that, if the discovery 

rule is applied to the facts of this case, his claims are barred. Gomez contends, 

however, that his exposure to the chemical fumes which allegedly injured him 

occurred each day he worked for the City and was in the nature of a continuous tort. 

He argues that, because the harmful exposure to the chemicals was continuous, his 

causes of action did not accrue until December 4, 1992, his last day of employment 

with the City and the date of his last exposure to the paint and chemicals which 

allegedly caused his injury. Contending that the three-year statute of limitations for 

his tort claims did not begin to run until that date, Gomez asserts that the District 

Court erred in concluding that his complaint was time barred.

¶15. Acknowledging that we have never expressly adopted a continuous tort theory 

in determining when the statute of limitations begins to run in a latent disease case 

where exposure to a harmful substance occurs over an extended period of time, 

Gomez advances a number of arguments in support of his assertion that we should 

adopt such a theory in this case. He first asserts that we recognized in Hando that, 

where a person is exposed to paint fumes in the workplace over a period of time, the 

statute of limitations does not begin to run until the "last on-the-job exposure" to the 

fumes. Thus, according to Gomez, we have "hinted" that we would apply a 

continuous tort theory under such circumstances. We disagree.

¶16. The plaintiff in Hando brought a tort action asserting that she had been injured 

by repeated exposure to paint manufactured by one of the defendants. Hando, 236 

Mont. at 496, 771 P.2d at 958. In addressing the statute of limitations question, we 

held that the limitations period began to run when the plaintiff received a medical 

opinion linking her injuries to her exposure to the paint. Hando, 236 Mont. at 502, 

771 P.2d at 962. Stated differently, the statute of limitations began to run at the point 

when the plaintiff "discovered" the causal connection between her injuries and her 

exposure to the paint.

¶17. The portion of Hando on which Gomez relies for his proposition that we 

"hinted" at our agreement with a continuing tort theory is the paragraph outlining 

the defendants' argument that the limitations period began to run after the plaintiff's 

last exposure to the paint rather than at the later time when a medical opinion linked 

her injuries to the paint exposure. See Hando, 236 Mont. at 500-01, 771 P.2d at 961. 

We did not discuss that argument in Hando, much less express or suggest agreement 

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with--or willingness to adopt--the defendants' argument in that regard. Indeed, in 

holding that the limitations period ran from the date the plaintiff discovered the 

connection between her injuries and the paint exposure, we implicitly rejected the 

defendants' continuing tort--or "last on-the-job exposure"--theory. We conclude that 

Hando does not support Gomez's argument for adoption of that theory in this case.

¶18. Next, Gomez cites to two cases in which we held that, where a nuisance is of a 

continuing nature and can be readily abated, a new cause of action accrues each time 

the nuisance causes damage and the statute of limitations period for the last possible 

cause of action begins to run from the date the nuisance is removed. See Graveley 

Ranch v. Scherping (1989), 240 Mont. 20, 782 P.2d 371; Shors v. Branch (1986), 221 

Mont. 390, 720 P.2d 239. He argues that his continuing exposure to paint and 

chemical fumes while working for the City is analogous to the continuing nuisances 

in Graveley Ranch and Shors because the State readily could have abated the 

harmful exposure by making its products safer, removing the products from his 

workplace or otherwise protecting him from the deleterious effects of the chemicals. 

On this basis, Gomez urges us to extend the accrual rule applied in those continuing 

nuisance cases to cases in which a latent disease is caused by continuing exposure to 

chemicals or other substances, and hold that the statute of limitations on his claims 

did not begin to run until his exposure to the chemicals was abated by his 

terminating his employment with the City on December 4, 1992.

¶19. In Graveley Ranch, the plaintiff filed a complaint alleging that a number of its 

cattle died from lead poisoning caused by leaking batteries located on the defendant's 

property. The defendant moved for summary judgment, arguing that the two-year 

statute of limitations began to run when the plaintiff discovered the cause of the 

injury to its cattle and barred the plaintiff's action. Graveley Ranch, 240 Mont. at 21-

22, 782 P.2d at 372. We held that the presence of the batteries was a continuing 

nuisance and that, for as long as the batteries remained on the property, a new cause 

of action arose each time one of the plaintiff's cattle died. Graveley Ranch, 240 Mont. 

at 25, 782 P.2d at 375. In Shors, the plaintiffs brought an action for damages based, 

in part, on their allegation that the defendant had built a gate across a road which 

blocked the access from their property to a nearby river. Shors, 221 Mont. at 396, 

720 P.2d at 243. In addressing the defendant's argument that the action was barred 

by the two-year statute of limitations, we held that the presence of the gate was a 

continuing nuisance because it easily could be abated by removing the gate and, 

therefore, the plaintiffs could recover damages for causes of action accruing within 

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two years prior to the initiation of the lawsuit. Shors, 221 Mont. at 397, 720 P.2d at 

243-44.

¶20. In both Graveley Ranch and Shors, although the nuisance was a continuing 

presence on the property, the injuries resulting from the nuisance were discrete 

incidents--the death of a cow or the inability to access the river each time the 

plaintiffs desired to do so--with each injury creating a new cause of action. In the 

present case, however, while the purportedly tortious actions were continuous in 

nature, the injuries Gomez alleges resulted therefrom were not discrete incidents 

separable from each other. Rather, Gomez alleges that his medical problems began 

almost immediately upon beginning his employment with the City, gradually 

increased in severity over time and eventually became a permanent condition. In 

light of the notable difference between the nature of the injuries alleged by Gomez 

here and those in Graveley Ranch and Shors, we conclude that the cases are 

distinguishable and decline to extend the continuing nuisance theory to the facts of 

the present case.

¶21. Next, Gomez cites to several cases from other jurisdictions which have applied a 

continuing tort theory to toll the statute of limitations for claims such as sexual 

harassment, employment discrimination, false imprisonment, infliction of emotional 

distress and breach of contract until the last day on which the plaintiff was exposed 

to the alleged tortious conduct. See Mears v. Gulfstream Aerospace Corp. (Ga. App. 

1997), 484 S.E.2d 659; Black v. Rieth-Riley Const. Co., Inc. (S.D. Ind. 1997), 957 F.

Supp. 177; C.B. Realty and Trad. v. Chicago & N.W. Ry. (Ill. App. 1997), 682 N.E.2d 

1136; Rendall-Speranza v. Nassim (D.D.C. 1996), 942 F.Supp. 621; Leonhard v. 

United States (2nd Cir. 1980), 633 F.2d 599; Thomas v. City of New York (E.D.N.Y. 

1993), 814 F.Supp. 1139. On the basis of these cases, he posits that the trend in other 

jurisdictions supports applying a continuing tort theory to toll the statute of 

limitations in a latent disease case until the last day on which the injured person is 

exposed to the harmful substance. We disagree.

¶22. The courts in the above-cited cases applied law from the states of Georgia, New 

York, Indiana and Illinois, as well as from the District of Columbia. However, when 

addressing statute of limitations questions in latent disease cases, each of these 

jurisdictions applies the discovery doctrine, rather than the continuing tort theory, to 

determine when the cause of action accrues. See, e.g., King v. Seitzingers, Inc. (Ga.

App. 1981), 287 S.E.2d 252; Anderson v. Sybron Corp. (Ga.App. 1983), 299 S.E.2d 

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160 (aff'd Sybron Corp. v. Anderson (Ga. 1983), 310 S.E.2d 232); N.Y. C.P.L.R. 214-c

(2) (codifying discovery rule in latent injury cases); Whitney v. Quaker Chemical 

Corp. (N.Y. 1997), 683 N.E.2d 768; Allied Resin Corp. v. Waltz (Ind. 1991), 574 N.

E.2d 913. Nolan v. Johns-Manville Asbestos (Ill. 1981), 421 N.E.2d 864; OwensCorning Fiberglas Corp. v. Henkel (D.C. App. 1997), 689 A.2d 1224. Consequently, 

we conclude that the cases on which Gomez relies, which involve claims for injuries 

other than latent diseases, are not persuasive authority for his argument that we 

should extend the continuing tort theory to latent disease cases.

¶23. Furthermore, the Texas Supreme Court recently observed that "almost every 

jurisdiction applies some formulation of the discovery rule, either legislatively or 

judicially, in latent injury and disease cases." Childs v. Haussecker (Tex. 1998), 974 S.

W.2d 31, 37. The Texas court supported its observation with statutory and case 

citations from 37 states and the District of Columbia applying the discovery doctrine 

in latent injury cases. Childs, 974 S.W.2d at 37, n.2. Indeed, the only state we have 

located which applies a continuing tort--or last on-the-job exposure--rule under any 

circumstances in determining when the statute of limitations begins to run in latent 

disease cases is Alabama.

¶24. In Garrett v. Raytheon Co., Inc. (Ala. 1979), 368 So.2d 516, 521, for example, 

the Alabama Supreme Court specifically declined to apply the discovery rule to a 

latent disease case and held that the statute of limitations began to run from the time 

the plaintiff was last exposed to the radiation which injured him. In so holding, the 

court noted that the Alabama legislature had the inherent power to determine the 

date of accrual of--and the time within which to bring--a claim and that the 

legislature had never enacted a statute authorizing application of the discovery rule 

to determine when causes of action accrue. Absent legislative recognition of the 

discovery rule, the Alabama courts consistently refused to judicially adopt the rule. 

Garrett, 368 So.2d at 520-21. In later cases, however, Alabama has applied the 

discovery rule in some latent disease cases after the legislature enacted statutes 

authorizing application of the rule in specific circumstances such as cases involving 

asbestosis. See, e.g., Cazalas v. Johns-Mansville Sales Corp. (Ala. 1983), 435 So.2d 55. 

Thus, it appears that even Alabama considers the continuing tort theory to be less 

desirable than the discovery rule and applies it only where constrained to do so by 

lack of legislative authority to apply the discovery rule. In Montana, of course, the 

discovery rule is statutory. See § 27-2-102(3)(a), MCA.

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¶25. Finally, it is our view that applying a continuing tort theory to determine that 

Gomez's causes of action accrued--and the statute of limitations began to run--on the 

date of Gomez's last exposure to the paint and chemical fumes is contrary to the 

general policy underlying statutes of limitation.

The primary purpose of statutes of limitations is the suppression of stale claims which, 

with the attendant passage of time, inhibits a party's ability to mount an effective 

defense. . . . The policy underlying the bar imposed by statutes of limitations is, at its 

roots, one of basic fairness. Our system of jurisprudence is designed to achieve substantial 

justice through application of the law after the parties have had an opportunity to fully 

present both sides of a controversy. The failure to bring an action within a reasonable time 

is clearly not conducive to a full presentation of the evidence nor a search for the truth. 

Consequently, the law will not reward the plaintiff who sleeps on his or her rights to the 

detriment of a defendant.

E.W. v. D.C.H. (1988), 231 Mont. 481, 484, 754 P.2d 817, 818-19. Here, Gomez was 

aware of his injuries, of the cause of those injuries and of the fact that he had a cause of 

action against the State by November of 1992, if not earlier, yet he did not take action on 

his claims until 1996. In essence, Gomez has slept on his rights and should not be 

rewarded under the law for his lack of diligence. Furthermore, to apply a continuing tort 

theory to delay the beginning of the limitations period until the last injurious exposure to a 

harmful substance, thereby allowing and even encouraging injured persons to remain in 

harmful conditions for 

an indeterminate amount of time, could delay the running of the limitations period 

indefinitely. We previously have concluded that such a result is unacceptable. See E.W., 

231 Mont. at 486-87, 754 P.2d at 820-21; Bennett, 220 Mont. at 121-22, 713 P.2d at 995.

¶26. In light of these policy considerations and the dearth of authority supporting 

Gomez's arguments, we decline to adopt a continuing tort theory to determine the 

accrual date of Gomez's causes of action under the facts of this case. Consequently, 

we hold that the District Court did not err in concluding that, under the three-year 

tort statute of limitations and the discovery rule, Gomez's complaint was not timely 

filed and in granting summary judgment to the State on the basis that Gomez's 

causes of action were barred by the applicable statute of limitations.

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¶27. Affirmed.

/S/ KARLA M. GRAY

We concur:

/S/ J. A. TURNAGE

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ JIM REGNIER 

Justice Terry N. Trieweiler specially concurring.

¶28. I concur that in the greater number of cases the discovery rule is fairer to most 

parties, whether plaintiff or defendant, than the last injurious exposure rule or 

continuing tort rule when occupational diseases are alleged to have been tortiously 

caused. Therefore, as applied to the facts in this case, I concur in the result of the 

majority opinion. However, I do not agree with all the reasons stated for that opinion 

and, therefore, specially concur.

/S/ TERRY N. TRIEWEILER

Justice William E. Hunt, Sr., joins in the foregoing specially concurring opinion of Justice 

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Terry N. Trieweiler. 

/S/ WILLIAM E. HUNT, SR.

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