IN THE COURT OF APPEALS OF TENNESSEE
WILLIAM LEFFEW, and wife, ) C/A NO. 03A01-9508-CV-00280
CHRISTINE LEFFEW, ) KNOX COUNTY CIRCUIT COURT
)
Plaintiffs-Appellants, )
)
)
)
FILED
)
v. ) March 29, 1996
)
) Cecil Crowson, Jr.
) Appellate C ourt Clerk
)
)
AcandS, Inc., et al., )
) HONORABLE DALE WORKMAN,
Defendants-Appellees. ) JUDGE
CONCURRING OPINION
I concur in the result reached in the opinion authored
by Judge McMurray; however, I believe the bankruptcy claims
produced by the plaintiffs in discovery do present an issue that
was not directly addressed in Wyatt v. A-Best Company, 910 S.W.2d
851 (Tenn. 1995). Those claims raise this question: did the
plaintiff William Leffew (Leffew) acknowledge in the claims
submitted on his behalf that he knew, more than one year before
the plaintiffs filed suit, that he was suffering from an
asbestos-related disease? The question in this case is not
whether the June 6, 1990, diagnosis was one of asbestosis. That
question is clearly answered in the negative by the holding in
Wyatt. The real question in the instant case is the significance
of Leffew’s statement in the claims that he was suffering from an
“asbestos related condition[]” that was “first diagnos[ed]” on
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June 6, 1990. Does this mean that, prior to June 27, 19901, he
had some knowledge of an asbestos-related condition over and
above the “bare bones” June 6, 1990, diagnosis of “interstitial
fibrosis consistent with pneumoconiosis”? I write separately to
explore, in more detail, the claims filed on behalf of Leffew
against the Manville Personal Injury Settlement Trust and the UNR
Asbestos-Disease Claims Trust.
In its present posture, this case is still one “on the
papers.” We are dealing with a question of summary judgment.
The affirmative defense of the statute of limitations has not
been tried on the merits. Therefore, neither the trial court nor
this court is permitted to weigh the evidence. Byrd v. Hall, 847
S.W.2d 208, 211 (Tenn. 1993) (“The court is not to ‘weigh’ the
evidence when evaluating a motion for summary judgment.”) Summary
judgment is designed to resolve cases “on the papers” when it is
clear that all of the material facts required to resolve a given
issue are undisputed and that those undisputed material facts
demonstrate conclusively that the moving party is entitled to a
judgment, as a matter of law. Tenn. R. Civ. P. 56.03.
In a summary judgment evaluation, there is a mandated
bias in favor of the nonmoving party. We must view the evidence
in a light favorable to that party. Byrd at 215. By the same
token, and particularly relevant here, we must allow the
nonmoving party all reasonable inferences from the record in that
party’s favor. Id. If two mutually exclusive reasonable
inferences can be drawn from the record--one favorable to the
1
The original complaint was filed on June 27, 1991.
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movant and one favorable to the nonmovant--the latter is entitled
to the one favorable to him or her. I will review these claims
with these principles in mind.
In order to understand the essence of the defendants’
position with respect to these essentially similar bankruptcy
claims, it is necessary to examine the claim forms filed on
behalf of Leffew. I will analyze the one filed against the
Manville Personal Injury Settlement Trust; however, my comments
are equally applicable to the other claim. For ease of
reference, the portions of the Manville Trust claim completed on
behalf of Leffew are shown in italics:
SOCIAL SECURITY NO. [Redacted]
IN 1. ASBESTOS RELATED CONDITIONS
CONDITION-LOCATION-ORIGIN DATE OF FIRST DIAGNOSIS
Interstitial fibrosis (6) MONTH (6) DAY (90) YEAR
PHYSICIAN NAME(S)
Myung-Sup Kim, M.D.
CONDITION-LOCATION-ORIGIN DATE OF FIRST DIAGNOSIS
Probable asbestos related lung (6) MONTH (28) DAY (90) YEAR
disease
PHYSICIAN NAME(S)
Steve G. Ferguson
The defendants argue that this claim reflects that
Leffew knew, prior to June 27, 1990, that he was suffering from
asbestosis. The argument goes something like this: the claim
asked the claimant to identify “asbestos related conditions”;
Leffew’s counsel filled in the condition of “interstitial
fibrosis” as one of his “asbestos related conditions”; he
indicated that this “asbestos related condition[]” was “first
diagnos[ed]” on June 6, 1990; therefore, the argument goes,
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Leffew knew on or about June 6, 1990, that he was suffering from
an “asbestos related condition[].”
Assuming, for the purpose of argument, that the
interpretation placed on the bankruptcy claims by the defendants
is a reasonable one2, it is obvious that their interpretation is
not a conclusive one. Therefore, the question remains--is there
a reasonable interpretation of the claims favorable to the
plaintiffs? If there is, we must discard the interpretation
favorable to the defendants as “countervailing evidence.” Id. at
210-11.
It must be remembered that Leffew’s claims were
submitted after Dr. Steve G. Ferguson made his diagnosis of
asbestosis3. It can be legitimately argued that Leffew, in his
claims, was asserting that, after he got the definite diagnosis
of asbestosis from Dr. Ferguson, he then knew4 that the broader
x-ray diagnosis of “interstitial fibrosis” was really evidence of
asbestosis. This is a fair inference from the bankruptcy claims,
it is favorable to Leffew, and he is entitled to it under our
summary judgment procedure.
The bankruptcy claims filed by Leffew are clearly
2
I express no opinion as to whether the defendants’ “spin” on the claims
is persuasive; however, I would point out that there is no express statement
in either claim that Leffew knew he had asbestosis more than one year prior to
the filing of the complaint. This is arguably significant because the date
one learns of a diagnosis obviously can be different from the date the
diagnosis is made.
3
The Manville claim, for example, was transmitted to the Trust by a
letter from Leffew’s counsel dated August 8, 1990.
4
I say “knew” because once Leffew learned on or about June 28, 1990,
that he had asbestosis, he would have then realized that the June 6, 1990,
diagnosis of a lung disease was in fact a diagnosis of asbestosis.
4
susceptible to a reasonable interpretation--a “slant” as it were
--favorable to his position, i.e., that he did not know of, and
is not legally chargeable with knowledge of, his condition of
asbestosis until he learned of that diagnosis from Dr. Ferguson.
The bankruptcy claims, properly construed, do not
establish a fact essential to the defendants’ motion, i.e.,
accrual of the plaintiffs’ cause of action more than one year
before the instant case was filed. This being the case, the
facts of this case, from the defendants’ standpoint, are no
stronger than those in Wyatt. Therefore, there is no reason to
reach the defendants’ estoppel argument, dependent as it is on
our adoption of the defendants’ interpretation of the bankruptcy
claims.
Summary judgment on the affirmative defense of the
statute of limitations is not appropriate. It remains to be seen
what the admissible evidence on this particular issue will
reflect when this issue and the other issues made by the
pleadings are tried on the merits.
________________________________
Charles D. Susano, Jr., J.
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