FILED

July 24, 1997

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF APPEALS OF TENNESSEE

EASTERN SECTION AT KNOXVILLE

MARY S. HOOPER, individually and as )

surviving spouse and next of kin of )

ROBERT HOOPER, deceased, ) KNOX CIRCUIT

)

Plaintiff/Appellant )

) NO. 03A01-9703-CV-00103

v. )

)

OWENS-CORNING FIBERGLAS ) HON. DALE C. WORKMAN,

CORPORATION, et al., ) JUDGE

)

Defendants/Appellees ) AFFIRMED

Michael Y. Rowland and Janet Edwards, Rowland & Rowland, P.C., Knoxville, for the

Appellant

Dwight E. Tarwater, Thomas A. Bickers, Andrew R. Tillman, Knoxville, for the 

Appellees

O P I N I O N

INMAN, Senior Judge

This is an action for damages for wrongful death. The plaintiff alleged that her

husband died of malignant mesothelioma caused by asbestos to which he was last

exposed in 1962. He died on August 7, 1994, 32 years after his last exposure. This

action was filed August 19, 1994 against various manufacturers of products

containing asbestos. As relevant here, it was dismissed on motion for summary

judgment which applied the bar of the statute of repose, T.C.A. § 29-28-103(a). The

plaintiff appeals and presents for review the issue of whether the application of the

statute of repose violates Article 1, Section 17 of the Constitution of Tennessee, the

open courts provision. We hold that it does not and affirm the judgment.

Our review of this case is de novo on the record with no presumption of the

correctness of the trial court’s findings. Carvell v. Bottoms, 900 S.W.2d 23, 26

(Tenn. 1995).
1The limitation does not apply to an asbestos-related injury occurring after July

1, 1979. T.C.A. § 29-28-103(b); Wyatt v. A-Best Prod. Co., 924 S.W.2d 98 (Tenn. 

App. 1995).

2

T.C.A. § 29-28-103(a) provides as pertinent that:

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 . . . six (6) years of the date of injury, in any event, the action

must be brought within ten (10) years from the date on which the product was

first purchased for use or consumption, . . . 1

The plaintiff argues that the latency period for mesothelioma exceeds the tenyear limitation and thus the statute operates to abolish her right to seek

compensation for her husband’s injury contrary to Article 1, Section 17 of the

Constitution of Tennessee, which provides:

That all courts shall be open; and every man, for an injury done him in his

lands, goods, person or reputation, shall have remedy by due course of law

and right and justice administered without sale, denial, or delay.

The appellees respond that the statute was enacted in 1978 and has

withstood repeated onslaughts, citing Jones v. Five Star Engineering, Inc., 717

S.W.2d 882 (Tenn. 1986); King-Bradwell Partnership v. Johnson 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 Valley

Authority, 730 F.2d 392 (5th Cir. 1984), cert. denied, 469 U.S. 1159 (1985); Mathia v.

Eli Lilly and Co., 719 F.2d 134 (6th Cir. 1983); Spence v Miles Laboratories, Inc., 810

F. Supp. 952 (E.D. Tenn. 1992), aff’d, 37 F.3d 1185 (6th Cir. 1994); Buckner v.

G.A.F. Corp., 495 F. Supp. 351 (E.D. Tenn. 1979), aff’d, 659 F.2d 1080 (6th Cir.

1981).

In Jones, supra, our Supreme Court expressly adopted and approved the

reasoning of the Sixth Circuit in Kochins in upholding the statute over due process

challenges of the Federal and State Constitutions and the open courts provision of

the Tennessee Constitution. Jones at 883; Kochins, 799 F.2d 1141.
2The allegations as to latency, etc. are not supported by the record, see Byrd

v. Hall, 847 S.W.2d 208 (Tenn. 1993). As did the trial judge, we accept these

allegations as true for the purpose of deciding the constitutional issue.

3

We agree with the appellees that a statute of repose cannot be re-examined

on a case-by-case basis. As stated in Jones:

Whenever the General Assembly enacts a statute of limitations or a statute of

repose, there are bound to be cases lying just outside the line which the

legislative body has drawn. This would be true whether the statute of repose

fixed a ten-year period, as here, a three-year period as in Harrison, supra, a

four-year period as in Harmon, supra, or any other prescribed period of time. 

The statute in question was enacted after lengthy debates and full

consideration by the General Assembly. In our opinion, it represents a

reasonable balancing of the conflicting interests and concerns with which the

Legislature had to deal.

Jones, 717 S.W.2d at 883 (citing Harrison v. Schrader, 569 S.W.2d 822 (Tenn.

1978); Harmon v. Angus R. Jessup Assoc., Inc., 619 S.W.2d 522 (Tenn. 1981).

This Court is not at liberty to revise the opinions of the Supreme Court, or to

infringe the legislative function and prerogative. The judgment is affirmed at the

costs of the appellant.2

_____________________________

William H. Inman, Senior Judge

CONCUR:

_______________________________

Houston M. Goddard, Presiding Judge

_____________________________

Don T. McMurray, Judge