IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

September 30, 2002 Session

BILLY ALLAN BRASWELL, et ux. v. AC and S, INC., et al. 

BILLY ALLAN BRASWELL NATIONAL SERVICE

NANNIE MAE BUNTON INDUSTRIES, INC.

HENRY L. BALES

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 party to products liability action more than one year

after injury and denied seller summary judgment on defense of the statute of limitations. We affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHELPICKENS FRANKS, J., delivered the opinion of the court, in whichHOUSTON M.GODDARD,

P.J., and CHARLES D. SUSANO, JR., J., joined.

Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, for Appellant, National Service,

Industries, Inc.

Mike G. Nassios, Timothey M. McLaughlin and Robert S. Patterson, Knoxville, Tennessee, for

Appellees, Billy Allan Braswell, Nannie Mae Bunton and Henry L. Bales.

OPINION

In this products liability action the plaintiff sued the manufacturer, alleging that he
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was injured by exposure to asbestos. Subsequent to bringing the action, the manufacturer was

judicially declared insolvent, after one year had expired for bringing the action. Pursuant to Tenn.

Code Ann. §29-28-106(b), the Trial Court permitted plaintiff to amend his complaint and add

defendant, the seller of the product, and refused to grant the defendant summary judgment on the

grounds that the statute of limitations had run. We granted defendant’s application for permission

to appeal, pursuant to Rule 9, Tenn. R. App. P.

These three cases were consolidated for purposes of appeal, to determine whether the

plaintiffs may maintain a cause of action in strict tort against a seller who was not sued within the

original statute of limitations time period. It is not disputed that the original complaints against the

manufacturers were filed within one year of each plaintiffs’ discovery of a medical condition

allegedly caused by exposure to asbestos.

Defendant Owens-Corning Fiberglass, the manufacturer, filed a voluntary petition

in bankruptcy on October 5, 2000, which plaintiffs relied on in adding the seller as a party defendant.

In denying defendant’s Motion for summary Judgment, the Trial Court ruled that the limitation

period against the seller did not begin to run until the manufacturer was adjudicated bankrupt.

The applicable statutes are as follows:

T.C.A. 29-28-103. Limitation of actions.– Exception– (a) 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, . . .

T.C.A. 28-3-104. Personal tort actions.–(a) The following actions shall be

commenced within one (1) year after the cause of action accrued:

(1) Actions for . . .injuries to the person. . .

. . .

(b) For the purpose of this section, in products liability cases:

(1) The cause of action for injury to the person shall accrue on the date of the

personal injury, not the date of the negligence or the sale of a product;

(2) No person shall be deprived of the right to maintain a cause of action until

one (1) year from the date of the injury; and

(3) Under no circumstances shall the cause of action be barred before the

person sustains an injury.

T.C.A. 29-28-106. Seller’s liability.

(b) No “product liability action,” as defined in § 29-28-102(6), when based on the

doctrine of strict liability in tort, shall be commenced or maintained against any seller

of a product which is alleged to contain or possess a defective condition unreasonably
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dangerous to the buyer, user or consumer unless the seller is also the manufacturer

of the product or the manufacturer of the part thereof claimed to be defective, or

unless the manufacturer of the product or part in question shall not be subject to

service of process in the state of Tennessee or service cannot be secured by the longarm statutes of Tennessee or unless such manufacturer has been judicially declared

insolvent.

The issue before us involves a question of law which is reviewed as de novo with no

presumption of correctness of the lower court’s conclusions of law. Union Carbide Corp. v.

Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

The legislative historyoftheTennessee 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., LEXIS 6014. The Court said:

The complete abrogation of strict liability against sellers was met with considerable

hostility by numerous members of the Tennessee Senate. . . . An amendment was

twice offered to add an exception to the elimination of seller strict liability where the

manufacturer was not amenable to service of process or was insolvent. One of the

principal sponsors of the Act, Senator Blank, opposed this amendment and

characterized it as follows:

[What this amendment is saying is] you don’t get to sue the seller if the

manufacturer’s got money, but if the manufacturer doesn’t have money then

you sue the seller. . . . basically what we’re doing here is kinda like saying

you can sue so and so if the other fellow doesn’t have the money. . . . I don’t

think that this particular amendment makes much sense or much logic

because really all you’re saying is, folks if you can’t get the money off one,

we’re gonna let you have a shot at the other {**7} one. . . . 

. . . A proponent of the amendment, Senator White, indicated that it was

designed to protect consumers . . . : 

All you’re saying is if the child in Tennessee or the citizen of

Tennessee is injured by a product manufactured by somebody, no matter

where they are, well . . . no matter where the manufacturer is, if he’s

insolvent, and manufacturers go out of business every day, people go in

business and they don’t make it, if Sears & Roebuck buys a product from a

manufacturer that is bankrupt, why should you tell the person injured in

Tennessee that you can’t recover, you can’t recover because that

manufacturer is no longer solvent. Why shouldn’t Sears & Roebuck in a case

like that be liable, strictly liable for putting that defective product on the

market[?]. I think it’s a very reasonable amendment.
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The opinion goes on to state that the next day a similar, but not identical in form, amendment passed

by the Tennessee Senate and then became law.

At the time the General Assembly enacted T.C.A. §29-28-106(b), its members were

aware that the ultimate determination of whether the manufacturer could be brought before the Court

by service of process could possibly be beyond the one year limitation, and certainly, the

manufacturer’s adjudication in bankruptcy could occur after the limitation period had expired. The

General Assembly is presumed to know the existing law in this State at the time legislation is

enacted. Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994); Constantine v. Miller Industries,

Inc., 33 S.W.3d 809 (Tenn. Ct. App. 2000). The General Assembly in enacting the statute intended

to ensure that the injured consumer could maintain a strict liability action against whomever was

most likely to compensate plaintiff for his or her injuries. Seals. Prior to this enactment, our

Supreme Court had quoted with approval Judge Jerome Frank’s dissenting opinion in Dincher v.

Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir. 1952), in McCroskey v. Bryant Air Conditioning

Co., 524 S.W.2d at p.489 (Tenn. 1975).

Except in topsy-turvy land, you can't die before you are conceived, or be divorced

before ever you marry, or harvest a crop never planted, or burn down a house never

built, or miss a train running on a non-existent railroad. For substantially similar

reasons, it has always heretofore been accepted, as a sort of legal "axiom," that a

statute of limitations does not begin to run against a cause of action before that cause

of action exists, i.e., before a judicial remedy is available to the plaintiff.

It is a cardinal rule of statutory construction that the intent of the legislature must

prevail. Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975). It is further presumed that the General

Assembly will not enact a nullity. To hold that the statute of limitations ran before the manufacturer

was adjudicated bankrupt, would render the statute in part, meaningless.

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 persuasive. In

Gibson, the plaintiff had been employed 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 moved to Tennessee and was employed by defendant

Swanson, and shortly after being employed he sustained a work-related injury. He then filed for

worker’s compensation benefits in Tennessee, and some two years later he was awarded permanent,

partial disability in the Kentucky case. Within one year of the Kentucky Judgment plaintiff joined

the Second Injury Fund as a defendant in the Tennessee action. The fund argued the statute of

limitations had expired, but both the Trial Court and the Supreme Court allowed the action to be

maintained. The Supreme Court, in discussing the issue, said: 

The precise issue before us is whether the one-year statute of limitations on

the plaintiff’s claim against the Second Injury Fund began to run on the date of the

second injury, or on the date of adjudication of the permanent partial disability award
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from the plaintiff’s first injury. We conclude that the better-reasoned approach is to

hold that the statute begins to run when recovery of an award for a prior injury

actually materializes, and not, as the Fund advocates, when an employee has

knowledge of a potential claim.

. . .

Indeed, logic would seem to dictate that an employee cannot be held to have

knowledge of a claim against the Second Injury Fund until that claim actually arises -

which in this case was not until the first permanent disability was adjudicated.

Moreover, this logical proposition is consistent with our prior rulings on the accrual

of a right of action. Tennessee law recognizes that, ordinarily, a statute of limitations

begins to run when a plaintiff has cause of action and can bring suit. (Citations

omitted). Likewise, federal courts construing Tennessee law have held that a cause

of action does not accrue until a suit can be maintained. (Citations omitted).

Additionally, there must be someone capable of suing before the statute of limitations

can run. 

The Court went on to hold that the Judgment of the Kentucky court awarding permanent disability

triggered the statute of limitations as to the Second Injury Fund’s liability.

In this case, the statute prohibits the plaintiff from bringing the action against the

seller until one of the conditions set forth in the statute has been satisfied. From the foregoing

analyses, we conclude that the General Assembly intended the limitation period against the seller

would begin to run at the time the manufacturer was adjudicated bankrupt.

For the foregoing reasons, we affirm the Trial Court’s denial of defendant’s Motion

for Summary Judgment and remand these cases for proceedings consistent with this opinion. 

The cost of the appeal is assessed to National Service Industries, Inc.

_________________________

HERSCHEL PICKENS FRANKS, J.