# FILED
Au gust 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESS EE

EAST ERN S ECTI ON

PA UL G. B OW M AN , et ux ., ) C/A NO. 03A01-9703-CV-00092 ) JA M ES R. K IRK LA ND , et ux ., ) K NO X C IRC UI T, D IV ISIO NS I, ) II, AND III FR AN K V . HE NS LE Y, e t ux ., ) ) HON. HAROLD WI MBERLY, Plaintiffs- Appellants, ) J UDGE ) v. ) HON
. WHE EL ER A. ROS EN BAL M, ) J UDGE A- BE ST CO M PA NY , IN C., e t al., ) ) HON. DALE C. WORKMAN, Defendan ts, ) J UDGE ) * * * ) ) OW EN S-IL LIN OI S, IN C., ) AFFI RMED ) AND Appellee. ) REMANDED

HUGH B. BRIGHT, J R., M. DENISE MORETZ, WOOLF, McCLANE, BRI GHT, ALLE N & C ARPE NTER , Knoxvill e, for Appel lee. GEORGE A. WEBER, II I, EDWARD J . L IL LY, an d MI KE G. NASSI OS, LAW OFFICES O F PETER G. ANG ELOS, P.C., Knoxvill e, and JOHN A. DA Y, Nashvill e, for Plaintiffs- Appellants.

O P I N I O N

Franks. J.1 These cas es were consolidated f

or the purposesof appe al and s elected as repre sentativ e of all such cases pending

in the Circuit Court fo

r Knox County, Tennessee, and by agreement of the parties the decision in these cases will be binding on all such cases now

pending in those

courts. 2 In thes e acti ons, pl ainti ffs clai med exposure to products cont aining asbest os, and al leged that the y cont racte d asbest osis relat ed diseas es as a r esult of occupational exposure to asbestos-contai ning products. 1

Defendant Owens-Ill inois , Inc. , fil ed a motion for “Dismissaland/or Summary Judgment” , ass erti ng that i t sol d its entire insul ation products busi ness as of April 30, 1958, and di d not manufacture, sel l or di stribute anyasbest os-cont aining pr od uc ts a fte r A pr il 3 0, 1 95 8, a nd co nc lu de d t ha t al l ex po su re to its pr od uc t, if an y,
wa s incu rred m ore tha n ten yea rs bef ore the enac tmen t of the Ten nesse e Pro ducts Liabil ity Act, i n 1978, which cont ained a ten-y ear st atuteof repose, i.e ., Tennes see Code Annotated §29-28- 103(a). The motion acknowledged t hat Tennesse e Code Ann otated §29 -28-103 (b) effective Ju ly 1, 1979 exclud ed app lication of 103 (a)’s action s resultin g fro m ex posu re to as besto s, but this ame ndm ent w ould not ap ply to claim s ba rred bef ore the e nac tme nt o f the 197 9 am end me nt.

The Trial Court , rel yi ng on Wy att v. A -Be st P rod ucts Co ., 924 S.W.2d 98 (Tenn. App. 1995) , granted defendants summary j udgment, and pl ainti ffs have appealed. On appe al, plaintif fs arg ue tha t Wy attdoes not address theissue presented in plainti ffs’ opposi tion to the moti on for summary judgment, i.e ., pl ainti ffs had suffered an injury at the ti me of exposure, and thus acquired a cause of acti on, and “that an existing cause of

acti on may not beextingui shed by the subse quent pass age of the Product s Liabil ity

Statute of Repose.” I t is further argued that thos e undiscovered injuries caus ed by defe ndants’ products “consti tute a cause of action” and si nce the Ten nesse e Pro ducts Liab ility Act “ca n on ly be app lied pro spec tively”, its pass age in3

1978 “could have no eff ect upon an exi sti ng cause of act ion acqui red by plaint

iffs, but at that point

undiscovered”. Pl ainti ffs’ ass erti on that t hey “pos sessed an e xisting cause of action which coul d not be extinguis hed by t he lat er enact ed stat

ute” i s not supported by the cases.

The record for

purposes of s ummary judgment essentiall y es tabli shes that pl ainti ffs were exposed to asbest os prior to 1958, and suffered i njuryand damage from that exposure. At the ti me of the passa ge of the Produc ts Liabi lit y Act, plaint

iffs were not aware that the ir expos ure to t he product ha d resul ted in i njuri es to t hem, and it w as a dec ade later that t hey “ disc ove red ” the ir inju ries.

Plaintif fs arg ue tha t Jon es v . M orr istow n-H am blen Ho spita l As s’n, I nc., 595 S.W.2d 816 (Tenn. App. 1979) “is di rectl y on poi nt”, quoting at page 821: Und er Teeters, decedent had onl y a “c ause of action” which had the poten tial to ripen into a “ right of action ”. She had n o pre sent rig ht to sue u ntil her a ction a ccrue d, disco very bein g a co ndition prece dent to the action. On the effecti ve date of t he Act, decede nt had not di scovered her injury; her right of action u nder Teeters had not accrued. The ri ght of acti on which had been vest ed under pri or law had expi red. It is un iv er sa lly h eld th at a n a ct o r o m iss io n w he re by o ne su sta in s in ju ry,
no m atter how sligh t, starts the s tatut e of limita tion s run nin g. Limitat ions of Action , 51 Am.Jur.2d §109, p.681. We held i n Jones in the ne xt paragr aph after the above quote, “appli cati on of §23-34-15( a) to t his sui t does not impai r any vested right of acti on existing at the tim e of its e ffec tive da te and is, theref ore, co nstitution ally permissible. ” (Emphasis appl ied). The facts of t hese cases are si milar to Jones . N o
cau se s of act io n ex is te d as def

in ed b y th e ca se s onbeh al f of th es e pl ai nt if

fs atth e t ime the st atutewas passed in 1978. In Wy att v. A -Be st C o., 910 S .W.2d 8 51 (Te nn. 1995 ), the Supreme Court

said: [a] ca use o f actio n in tort d oes n ot acc rue u ntil a jud icial rem edy is ava ilabl e. Potts v. Celotex Corp. , 796 S .W.2 d at 68 1; Fos ter v. H arris , 633 S.W.2d 304, 305 ( Tenn. 1982). A judicia l remedyis avai lablewhen (1) a br each of a legally recogniz ed dutyowed to plai ntiff by defendant (2) c aus es p laint iff le gally c ogn izab le da ma ge. Potts v. Celotex Corp. ,2 As we noted in Jones , the “accrual” date is relativ e only in those c ases where the cause of action had accrued before the p assage of a statute of repose. 4 796 S.W.2d at 681. A breach of a legal ly cognizabl e dutyoccurs when plaint iff di scovers or

“reasonabl y shoul d have discove red, ( 1) the occasion, the manner and means by which a breach of dut

y occur red that produced . . . inj ury ; and (2) the ide ntit y of t he defendant who breac hed the duty .” Foster v. Harris, 633 S.W .2d at 3 05. L egally co gniza ble damages occur when plai ntiff discover s “fact s which would support an acti on for tort agai nst the tortfeaser.
. . . ” P.855. The Supreme Court in Cron in v. Howe , 906 S.W.2d 910 ( Tenn. 1995) el ucidat ed the operati onal dif

ference between a statute of l imit ations and a stat ute of re pose. The Court sai d: [w ]here th e one -year statute of lim itations g over ns the time w ithin

which legalproceedi ngs may be commenced after a cause of acti on accrues , the three- year

medical mal practi ce stat ute of re pose li mits t

he time within which an action may be brought , but i t is entirelyunrelated to the a ccrual of a cause of act ion and can, in fact , bar a c ause of action befo re it has a ccrue d. . . . Tha t distinctio n has prom pted c ourts to hold that s tatutes of repos e are subs tanti ve and exti nguish both the ri ght and the rem edy, wh ile statutes of lim itation ar e me rely proce dura l, extin gui shin g on ly the re me dy. In thes e cases t

he causes of ac tion had not accrued, and the st atuteof repose had t he effect of barring the right and remedy before they accrued which, as Cro nin notes , is per mis sible
. The Trial Court appropri atel y r elie d on Judge Susano’s opinion i n Wy att v. A -Be st P rod ucts Co ., 924 S.W .2d 9 8 (T enn . Ap p. 19 95)
. Wy attsaid “s ince the tenyear period s et fort

h in T.C.A. §29- 28-103(a) is a st atuteof repose, we do not beli eve it i s logi cal t o focus on the date of accr ual, since, as noted above , the stat ute runs from the triggeri ng event without regard to accrual”, 2 and h eld tha t “ Wya tt’s clai m was barred bythe T.P. L.A. before he c ould be rat ionall y expec ted to ha ve been aware that he s uff ered an in jury”. P .104
.

Accordingly , we affirm the judgment of t he TrialCourt and remand at plaintiff s’ cost.5 ________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M . Goddard, P.J.

___________________________ Cha rle s D. Susa

no, Jr., J.6 

# FILED
Au gust 27, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE

PAUL G. BOWMAN, et ux., ) C/A NO. 03A01-9703- CV-00092 ) JAMES R. KIRKLAND, et ux., ) ) FRANK V. HENSLEY, et ux., ) ) Plaintiffs-Appellants,) ) ) ) v. ) APPEAL AS OF RIGHT FROM THE ) KNOX COUNTY CIRCUIT COURT ) ) A-BEST COMPANY, INC., et al., ) ) Defendants, ) ) ) * * * ) ) HONORABLE HAROLD WIMBERLY, OWENS-ILLINOIS, INC., ) HONORABLE WHEELER A. ROSENBALM, ) HONORABLE DALE C. WORKMAN,

Appellee. ) JUDGES



### CONCURR I NG OPI NI ON I concur in Judge Franks’ opinion. I adhere to the opinion authored by me in the case of Wyatt v. A-Best Products Co ., 924 S.W.2d 98 (Tenn.App. 1995), perm. app. den. May 28, 1996. I agree with Judge Franks that the result in that case, and, I would add, the reasoning advanced to support it, fully answer the issue of statutory interpretation raised by the plaintiffs. I write separately to further respond to the7

plaintiffs’ issue regarding statutory construction. I note, parenthetically, that the plaintiffs acknowledged at oral argument that their constitutional issues could not be addressed by this court since, as the plaintiffs apparently concede, a resolution of those issues in their favor would require an overruling of controlling Supreme Court precedent. Obviously, this is not our prerogative.

When the General Assembly enacted the Tennessee Products Liability Act of 1978 (TPLA), it did so in response to a perceived problem related to the availability and cost of product liability insurance, and the impact of these issues on manufacturers, distributors, and consumers. The preamble to the enacting legislation, Chapter 703 of the Public Acts of 1978, effective July 1, 1978, is instructive:

WHEREAS, The General Assembly finds and declares that the number of product liability suits and claims for damages and the amount of judgments, settlements and the expense of defending such suits have increased greatly in recent years, and because of these increases the cost of product liability insurance has substantially increased. The effect of increased insurance premiums and increased claims has increased product cost through manufacturers, wholesalers and retailers passing the cost of the premium to the consumer. Further, certain product manufacturers are discouraged from continuing to provide and manufacture such products because of the high cost and possible unavailability of product liability insurance; and WHEREAS, In view of these recent trends and for the purpose of alleviating the adverse effects which these trends are producing, it is necessary to protect the public interest by enacting measures designed to make product liability insurance more readily available at a reasonable cost so that product cost may8 be lessened to the consumer; and WHEREAS, In enacting this act, it is the purpose of the General Assembly to provide a reasonable time within which action may be commenced against manufacturers, and/or sellers while limiting the time to a specific period of time for which product liability insurance premiums can be reasonably and accurately calculated; and to provide other changes to expedite early evaluation and settlement of claims; . . .
I cannot reconcile the plaintiffs’ position regarding the interplay between their claims and the ten-year statute of repose in the TPLA, with the purpose behind that enactment --
an immediate response to a perceived insurance problem, and its aftermath, of the magnitude expressed by the General Assembly. Whether such a problem existed, in fact, is not the issue. The General Assembly believed that it did and enacted legislation to address it. I believe that the legislative body intended that an unfiled, unknown claim for damages resulting from a produce that had been in use for more than ten years as of July 1, 1978, would be extinguished, as of that date -- both the right and the remedy. I believe that any other interpretation of that statute of repose is at odds with the purpose of the TPLA. This is primarily because the continued viability of latent injury claims associated with products that had been in use for more than ten years as of July 1, 1978, would be a serious impediment to resolving the very problem that the General Assembly sought to address when it enacted the TPLA.

We must interpret a statute in a way that is consistent with its purpose. In re Conservatorship of Clayton , 914 S.W.2d 84, 90 (Tenn.App. 1995). In my judgment,9

a delayed implementation of this particular statute of repose is the antithesis of the purpose behind the legislation in question. Had the General Assembly intended to exclude latent claims from the effect of the ten-year statute of repose, or had it intended to limit the statute’s application to products “purchased for use or consumption” on or after the effective date of the legislation, it could have so provided. However, it failed to do so. I believe that these omissions, taken together with the purpose of the statute and the clear import of the language employed by the legislative body, all militate in favor of our interpretation of the TPLA’s statute of repose.

__________________________ Charles D. Susano, Jr., J.