# FILED
July 24, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

MARY S. H OOPER, individually and as ) sur vi vi ng s pous e andnex

t of k in of ) ROBERT HOOPER , deceased, ) KNOX CIR CUIT ) Plaintiff/Appellant ) ) NO. 03A01-9703- CV-00103 v. ) ) OWENS-CORNING FIBERG LAS ) HON. DALE C. W ORKMAN, CORPORATION, et al., ) JUDGE ) Defendants/Appellees ) AFFIRMED

Michael Y . Rowland and Janet Edwar ds, Rowl and & Rowl and, P.C., Knox ville, for the Appellant Dwig ht E. Tarwate r, Thomas A. Bick ers, Andrew

R. Tillman, Kn oxvil le, for the Appellees

O P I N I O N INMAN, Se nior Jud ge

This is an acti on for damages for w rongful death. The plaintiff alleg ed that her husband died of malignant mesothelioma caused by asbestos to which he was last exposed in 1962. He died on August 7, 19 94, 32 years after his last exposure. This action was

filed August 1 9, 1994 against various manufacturers of produc ts containing asbestos. As relevant here, it was dismissed on mo tion for summary judgment w hich applied t he bar of the statute of repose, T.C.A. § 29-28-103(a). The plaintiff appeals and presents for review the issue of w hether the appli cation of the statute of repose v iolates Arti cle 1, Sectio n 17 of the Constitu tion of Tennessee, the open courts pr

ovision. We hold that it does not and affirm the j udgment. Our review of this case is de novo on the record with no presumption of the correctness

of the trial court’s finding s. Carve ll v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995).1 The limitation does no t apply to an asbestos-related injury occurring after July

1, 1979. T.C.A. § 2 9-28-103(b); Wyatt v. A-Best Pr od. Co. , 924 S.W.2d 98 (Tenn. App. 1995). 2 T.C.A. § 29-28-1 03(a) prov ides as perti nent that: Any action against a manufactur er or sell er of a product for i njury to person or property caused by its

defective or

unreasonably

dangerous co ndition must be brought w ithin . . . six (6)years of the d ate of injury , in any event, the action must be brought within ten (10) ye ars from the date on which the product was first purchase d for use or cons umption, . . . 1 The plaintiff argues

that the latency

period for mesothel ioma exceeds the tenyear li mitation and thus the statute operates to abolish her right to seek compensation for her

husband’s inj ury contr ary to Ar ticle 1, Sect ion 17 of the Constitution of Te nnessee, which provides: That all courts shall be open; a nd every man, for an injury done him in his lands, goods, person or reputation, shallhave remedy by due cour

se of law and right and j usti ce ad mini ster ed wit hou t sale , den ial, or de lay. The appellees res pond that the statute was enacte d in 1978 and has withstoo d repea ted ons laughts, citing Jones v. Five Star Engineering, Inc. , 717 S.W.2d 882 (Tenn. 1986); King-Bradwell Partnership v. John son Controls, Inc. , 865 S.W.2d 18, 21 (Tenn. App. 1993.), appeal denied (Tenn. 1993); Kochins v. LindenAllmak, Inc. , 790 F.2d 1128, 1140 (6th Cir. 1986); Wayne v. Tennessee Val ley Authority

, 730 F.2d 392 (5t h Cir. 1984) , cert. denied , 469 U.S. 1159 ( 1985); Mathia v. Eli Lilly and Co. , 719 F.2d 134 (6t h Cir. 1983) ; Spence v Miles Laboratories, Inc. , 810 F. Supp. 952 (E. D. Tenn. 1992), af f’d, 37 F.3d 1185 (6t h Cir. 1994) ; Buckner v. G.A.F. Corp. , 495 F. Supp. 351 ( E.D. Tenn. 1979), af f’d, 659 F.2d 1080 (6th Cir. 1981). In Jones, supra , our Supreme Co urt expres sly adopted and approved th e reasoning of the Sixth Ci rcuit in Kochins in upholding the statute over due process challenges of the Federal and State Constituti ons and the open cour ts provi sion of the Tennessee Consti tution. Jones at 883; Kochins , 799 F.2d 1141.2 The allegations as to latency , etc. are not supported by the record, see Byrd v. Hall , 847 S.W .2d 208 (Tenn. 199 3). As did the trial judge, we accept these allegations

as true for the p urpose of decidingthe constituti onal issue. 3 We agree with the appell ees that a statuteof repose cannot be r e-examined on a case-by-case basis . As stated i n Jones:
Whenever the General Assembl y enacts a statute of limitati ons or a statute of repose, there ar

e bound to be cases lying just outside t he line wh ich the legislative body has drawn. This would be true whether the statute of repose fixed a ten-year period, as here, a three-year peri od as in Harrison, supra , a four-year period as in Harmon, supra , or any ot her prescri bed period of time. The statute in question was enacte d after lengthy debates and f ull consideration by the General Assem bly. In our opinion, it represents a reasonable balanc ing of the conflic ting interests and concer ns with which the Legislature had to deal.
Jones , 717 S. W .2d at 8 83 (citin g Harrison v . Schrader

, 569 S.W.2d 822 (Tenn. 1978); Harmon v. Angus R. Jessup Assoc., Inc. , 619 S.W .2d 522 (Tenn. 198 1). This Court i s not at liber ty to rev ise the opinio ns of the Supreme Cour t, or to infringe the l egislati ve function and pr erogative. The judgment i s affirmed at the costs of the appell ant. 2

_____________________________ W illiam H. I nman, Senior Ju dge CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_____________________________ Don T. Mc Murray, Jud ge