### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Septem ber 30, 200 2 Session BILLY A LLAN B RASWE LL, et ux. v. A C and S,

INC., et al.
BILLY ALLAN

BRASWELL NATIONAL SERVICE NANNIE M

AE BUNTON INDUSTRIES, INC. HENRY L. BA LES Appellees Appellant

Direct Appeal from the Circuit Court for Knox County Nos. 2-616-91; 3-291-95, and 3-832-91 Hon. Wheeler A. Rosenbalm, Circuit Judge FILED DECEMBER 19, 2002
No. E2002-00093-COA-R9-CV

The Trial Court allowed plaintiff to add seller as pa

rty to produc ts liability

action more than one y ear after injury and

denied seller

summary judgmen t on defe nse of the statute of limitations . We affir

m. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cir

cuit Cour

t Affirme d.
H ERSCHEL P ICKEN S F RANKS , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and C HARLES D. S USANO , J R ., J., joined.
Hugh B. Bright, Jr., Michael J. King, and Robert L . Vance, for Appellant, National Service, Industries, I

nc. Mike G. Nassios, Timothey M. McL aughlin and Robert S. Patterson, Knoxville, Tennessee, f o r Appellee s, Billy

Allan Br aswell, N annie Ma

e Bunton and Henr y L . Bales

.

OPINION

In this products liability

action the plaintiff sued the manufacturer, alleging that he-2-

was injured by exposure to asbestos. Subsequent to bringing the action, the manufact ure r was judiciall y declar ed insolve

nt, after one y ear had

expired for bringing the action. Pursuant to Tenn. Code Ann. §29- 28-106(b ), the Tr ial Court p ermitted

plaintiff to amend h

is compla

int and add defenda nt, the s el ler of the product, and refused to gr ant the defendant summary judgment on the grounds that the statute of limitations had run. We granted defendant’s application for permission to appea l, pursua nt to Rule 9, Tenn. R. A

pp. P.
These three cases were consolidated for purp oses of a

ppeal, to determine whether the plaintiffs may maintain a ca use of action in strict tortagainst a seller who was not sued within the original statute of

limitationstime period. I t is not dispu

ted that th e origi nal compl aints ag ainst the manufacturers were fi led within one year of e ach plai nti f fs’ discovery

of a medical condition allege dly caused b y e

xposure to a sbestos.
Defend ant Owen s-Corning Fiberg lass, the manufacturer, filed a voluntary pe tition in bankrup tcy

on Octobe

r 5, 2000, which pla

intiffs r elied on i n adding

the selle r as a pa rty defenda nt. In deny ing def endant’ s Motion fo

r summary

Judgment, the Tria

l Court rul ed that the limit at ion period a gainst t he selle r did not be gin to ru

n until the manufac turer wa s adjudic ated ban krupt. The applicable s tatutes a

re as fo llows:
T.C.A. 29-28-10

3. Limit ation of act

ions.– Exce

ption– (a) Any action a gainst a manufacturer

or seller of a product for i njury to person

or prope rty caused b y its defective or unrea sonably dange rous cond ition must be

brough t within the period fixed by §§ 28-3-104, 28-3-105, . . .
T.C.A. 28-3-104. Personal tort actions.– (a) The followi ng actions shall be commenced within one (1) year after the cause of a ction accrued: (1) Actions for . . .injuries to the person. . .

. . . (b) For the purpo se of this s ection, i n produc ts liability cases: (1) The cau se of ac tion for in jury to the per son shall

accrue on

the date of the persona l injury , not the da

te of the neglig ence or

the sale of a prod uct; (2) No person shall be deprived of the rig ht to mainta

in a caus e of act

ion until one (1) ye ar from the date of the injury ; and (3) Under no circumstances sh all the cause of action be barred be fore the pe rs on su st ai ns an in

ju ry. T.C.A. 29-28-106. Seller’s liability. (b) No “product liability action ,” as de fined in § 29-28-102(6), when based on the doctrine of strict liability in tort, shall be commenced or ma intained against any

seller of a product whichis alleged to contain or possess a defective c ondition unreaso nably-3- dangerous to the buy

er, user or consum

er unles s the seller

is also the manufacturer of the product or the manufacturer of the pa rt thereof claimed to be defective, or unless the manufacturer of the produ ct or par

t in questio n shall not

be subject t o service of process in the state of Tennessee or service cannot be secured by

the lo ngarm statutes of Tennessee or unless such manufacture r has beenjudicially declared insolvent

. The issue before us involves a question of law which is r eviewe d as de novo with no presumption of corr

ectness of the low er cour t’s conc lu sions of law

. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

The legislat ive history of the Tenness e e Products Liability Act of 1978, T.C.A. §29-8- 101, et seq. , as it relates to T.C.A. §29-28-106(b), was reviewed in Seals v. Sears Roebuck and Co. et al. , 688 F. Supp. 1252; 1988 U.S. Dist., LEXI S 6014. The Court said:

The complete

abrog ation of s trict liab ility agains tsellers w as met with consider able hostility by numerou s members of the Tennessee Senate. . . . An amendment wa s twice offered to add an exception to the elimination of seller strict

liability where the manufacturer

was not amenable to service of process or w as insolvent. One of the principal sponsors of the Act, S enato r Blank, opposed this amendment and characterized it

as follow s: [What this amend

ment is saying is ] you don’t get to sue the se ller if the manufacturer’s got money, but if the ma nufacturer doesn’t

have money then you sue the se

ller. . . . basical l y what we’ r e doing here is kinda like say ing you can sue so and so if the other fellow doesn’t have the money

. . . . I don’t think that this particular amendment mak es much se

nse or muc

h logic because really

all you’re sa

ying is, folks if you can’ t get the money off one, we’re gonna let y

ou have a shot at the other {**7} one. . . .

. . . A pr oponent of the amendment, Senator White, indicated that it was designed to prote ct consum ers . . . : All you’re sa

y ing is i f the child in Tennessee or the citizen of Tennessee is inj ured b y a product manuf actured by

somebody, no matter where they are , well . . . no matter w here the manufacturer is, if he’s insolvent , and manuf

acture rs go ou t of busine ss every

day , people g o in business and they

do n’ t m ak e i t, if

Se ar s & Ro eb uc k b uys a produc t from a manufact urer that is ban

krupt, wh y sh ould y ou tell the

person in

jured in Tennessee that you can’t r ecover, y ou can’t recover because that manufacturer

is no longer solvent. Why shouldn’t Sears& Roebuck in a case like that b e liab le, st rictl y liable f or put ting t h at defective product on the market[?]. I

think it’s a

very reasona ble amen dment.-4-

The opinion goes on to state that the next da

y a similar, b ut not iden

tical in f orm, amendment passed by the Tennessee Senate and then became law.

At the time the Genera

l Assembly

enacte d T.C.A. §2 9-28-106 (b), its members were aware that the ultimate determination of whether the manufacturer could be br ought before the Court by service of process could possibly be beyond the one

year limitation, and ce rtainl y , the manufacturer’s adjudication in bankruptcy c ould occur after the limitation period had expired. The General Assembly

is presumed to know the existing la w in this St ate at the

time leg islation is enacted. Wilso n v. John son County , 879 S.W.2d 807 (Tenn. 1994); Constantine v. Miller In dustries, Inc., 33 S.W.3d 809 (Tenn. Ct. App. 20 00). The Genera l Assembly

in enact ing the s tatute

intended to ensure that the injured consumer could maintain a strict liability action against whomever was most likely to compen sate pla

intiff fo r his or her injuries. Seals. Prior to this enactment, our Supreme Court had quoted with approval Jud ge Jerome Fr ank’s dissenting opinion in Dincher v. Marlin Firearms Co. , 198 F.2d 821, 823 (2d Cir. 1952), in McCroske y v. Bry ant Air Conditioning Co. , 524 S.W.2d at p.489 (Tenn. 1975).

Exceptin topsy-turvy

land, you can't die before y ou are conceived , or be divo rced before ever you ma

rry, or ha rvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substan tially sim ilar reasons , it has alw ay s hereto fore be en acce pted, as a sort of le gal " axiom, " that a statute of limitati ons does n ot begin to run ag ainst a c ause of a ction bef ore that cause of action exists, i.e., before a judicial remedy is available to the plaintiff.
It is a cardina l rule of s tatutory construction that th

e intent o f the leg

islature must prevail

. Tidwell v. Collins , 522 S.W.2d 6 74 (Tenn . 1975). I t is further presumed that the General Assembly will not en act a

nullity . To hold th at the sta tute of limitations ran before the manufacturer was adju dicated

bankrupt, would re

nder the statute in part, me aningle ss. On the issue before us, McCroskey is instructive and the analogous case of Gibson v. Swanson Plating and Machine of Kentucky, Inc., 819 S.W.2d 796 (Tenn. 1991) is per sua si ve. In Gibson , the plaintiff

had been employ ed in a coal mine in Kentucky and was diagnosed as suffering from black lung disease. He then filed a worker’s compensation suit in Kentucky , seeking recovery for his lung condition. In the meantime, he mov ed to Tenn essee and was employed by defe ndant Swan son, and short ly after be ing employe d he sustained a work-related injury . He then filed for worker’s compensa

tion benefits in Tenne ssee, and some two y ears la ter he wa s award

ed perma nent, partial disability

in the Kentucky c ase. Within one year of the Kentucky

Judgment plaintiff joined the Second Injury

Fund as a defendant in the Tennessee a ction. The fund argued the statut e of limitations had expired, but both the Trial Court and the Supreme Court allowed the action t o be maintaine d. The Supr

eme Court , in discus sing the issue, sa id: The precise issue before us is whether the one-y ear statute of

limitations on the plaintiff’s claim against the Second I njury Fund beg an to run on the date of the secondinjury , or on the

date of a djudicat ion of the permane nt partia l disability

award-5- from the plain tiff’s f irst injur y. We conclude that the b etter-r

easoned approac h is to hold that th e statu te begins to run when recovery of an award for a prior injury actually materializes, and not , as the Fund advocates, when an employ ee has knowledg e of a pot

ential cl aim.

. . . Indeed, logicwould seem to dictate that an employee

cannot be held to have knowl edge of a claim against the Second Injury

Fund until that

claim ac tually

arises - which in this case was not until the first permanent disability wa s adjudica t ed. Moreover, this logical proposition is consistent with our prior rulings on the accrual of a right of actio n. Tenne ssee law

recog nizes that, ordinar

ily, a statute

of limitations begins to run when a plaintiff has cause of action and can bring suit. (Citations omitted). Likewise, federa l courts construing Tennessee law have held that a cause of action do es not ac crue unt il a suit ca

n be maint

ained. ( Citations omitted)

. Ad di ti on al ly, there m ust b e some one cap able o f suin g bef ore the statute of limitations can run. The Court went on to hold that the Judgmentof the Kentucky court awarding permane

nt disability tr ig ge re d t he st at ut e o f l im it at io ns as to th e S ec on d In ju ry F un d’ s l ia bi li ty.
In this case, the statute prohibits the plaintiff from bringing the ac tion aga inst the seller until one of the condi tion s set forth in the statute has been satisfied. From the foreg oing analy ses, we conclude that the Genera l Ass embly intended the limitation period ag ainst the seller would beg

in to run a

t the time th

e manufa cturer was adju dicated

bankrup t.
For the foregoing reasons, we affirm the Trial Court’s denial of defendant’s Motion for Summary Judgment and re mand these cases for proceeding s consistent with this opinion. The cost of the appeal is assessed to National Service I ndustries, Inc.

_________________________ H ERSCHEL P ICKENS F RANKS , J.