Joyce v. A.C. & S., Inc.

Related Cases

JAMES DICKSON PHILLIPS, Circuit Judge:

James Troy Joyce appeals the dismissal of his claims against various miners and manufacturers of asbestos products1 (manufacturers), and against E.I. DuPont de Nemours & Co. (DuPont), his former employer, for damages allegedly resulting from his occupational exposure to asbestos insulation over a period of several years. *1202The district court, 591 F.Supp. 449 (W.D. Va.1984), held that Joyce’s claims against the manufacturers were barred by Virginia’s two-year statute of limitations on actions for personal injuries, and dismissed all but one of his claims against DuPont pursuant to the exclusivity provision of the Virginia Workers’ Compensation Act. After permitting limited discovery, the district court granted summary judgment for DuPont in connection with Joyce’s remaining claim, for alleged fraudulent concealment of his medical condition. Finding no error in any of the rulings by the district court, we affirm.

I

The facts are not in dispute. James Troy Joyce2 was employed by DuPont, in its Martinsville, Virginia, plant, for four months in 1946 and later continuously from 1951 through March 1982, when he retired due to ill health. Joyce was exposed to asbestos while working as an insulator for approximately eleven years, from 1952 to 1955 and again from 1964 to 1972. In 1972, after learning from newspaper articles of the potential hazards of asbestos, Joyce obtained a job transfer in order to avoid further exposure to asbestos insulation.

Joyce nevertheless suffered pleural thickening in one lung at least as early as 1970.3 This condition, revealed by chest X-rays taken in connection with annual physical examinations, was asymptomatic and remained relatively unchanged until 1981. In his deposition testimony, Dr. James Layton, Medical Director at DuPont’s Martinsville plant, claimed that during this period he was unaware of any connection between the pleural thickening and asbestosis.

In 1979, DuPont adopted a company-wide policy of sending to outside radiologists the X-rays of all employees who had been exposed to asbestos. An independent radiologist thus reviewed Joyce’s 1980 X-rays and concluded that there had been no change over the preceding decade. In addition to chest X-rays, DuPont also began to administer pulmonary function tests to asbestos workers. Joyce’s 1980 pulmonary function test was normal.

In January 1981, citing a “heightened sensitivity” to a possible link between pleural thickening and asbestos exposure, Dr. Layton sent a group of employees, including Joyce, to Dr. William P. O’Neill, a pulmonary specialist. Dr. O’Neill determined that, although his pulmonary function remained normal, Joyce had mild pleural asbestosis manifested by pleural thickening in both lungs. Joyce was informed of this diagnosis, obtained other opinions, and eventually underwent surgery for his lung disorder.

Joyce has since developed pleural effusion and parenchymal asbestosis. Joyce, a citizen of Virginia, filed this action, invoking the district court’s diversity jurisdiction, on January 10, 1983. He sought damages relating to pleural effusion and parenchymal asbestosis4 and alleged, with respect to the manufacturers, negligent failure to warn, fraudulent misrepresentation or concealment, conspiracy, strict liability, and malicious or reckless disregard for his rights.

According to medical evidence in the record, Joyce developed pleural effusion *1203sometime between January 13 and July 1981, but showed no signs of parenchymal asbestosis until sometime after his final visit with Dr. O’Neill, on September 2, 1981. Thus, both of these diseases, which, for purposes of their motion for summary judgment, the manufacturers agreed to characterize as separate and distinct illnesses, rather than progressive stages of the initial pleural thickening, developed within two years of the filing of Joyce’s complaint.

The district court nevertheless held that Virginia’s two-year statute of limitations had been triggered by the onset, many years earlier, of Joyce’s first asbestos-related disease, pleural thickening, and that his action for damages in connection with the later diseases was therefore untimely. The manufacturers’ motion for summary judgment was granted on this basis, and the claims against them dismissed. x

Joyce’s claims against his,employer, DuPont, took two forms. First, he claimed that DuPont intentionally failed to warn of the inherent dangers of asbestos and failed to take steps to alleviate exposure to asbestos products, seeking damages for his pleural effusion and parenchymal asbestosis. The district court granted DuPont’s motion to dismiss on the ground that Virginia’s Workers’ Compensation Act provides the exclusive remedy for the injuries alleged.

Joyce separately urged that DuPont had fraudulently concealed his medical condition during the limitations period, depriving him of a valuable property right — his cause of action against the manufacturers, should they prevail on their statute of limitations defense. The district court denied DuPont’s motion to dismiss and permitted discovery on the issue of concealment, but later granted summary judgment in DuPont’s favor on the basis that Joyce had failed to raise a genuine issue of material fact with respect to the alleged fraudulent concealment and that DuPont was entitled to judgment as a matter of law.

In this appeal, Joyce challenges the adverse disposition of each of his claims, which we now examine in turn.

II

The Manufacturers

Because jurisdiction in this case is based upon diversity, we must look to Virginia law to determine both the applicable statute of limitations and the time at which these claims accrued thereunder. See Ragan v. Merchants Transfer and Warehouse Co., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). The parties agree that Virginia’s two-year statute of limitations for personal injury claims applies in this case. Va.Code § 8.01-243(A) (1984). The only issue on appeal is thus whether these claims accrued when the pleural effusions and parenchymal asbestosis diseases first appeared, within the limitations period, or when Joyce developed pleural thickening more than ten years earlier. Although this precise issue has not been addressed by the Supreme Court of Virginia, we are constrained to hold that, given that court’s prior decisions and adherence to the theory that in an action for personal injury, there is but a single, indivisible cause of action, Joyce’s only cause of action against the manufacturers accrued when he first developed pleural thickening sometime prior to 1970.

The Virginia statute of limitations for personal injuries provides, in pertinent part, that “every action for personal injuries, whatever the theory of recovery, ... shall be brought within two years next after the cause of action shall have accrued.” Va.Code § 8.01-243(A) (1984). Accrual is governed by Va.Code § 8.01-230 (1984), which provides that “[i]n every action for which a limitation period is prescribed, the cause of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained____” The issue of accrual of a cause of action for latent asbestos-related disease was addressed by the Virginia Supreme Court for the first time *1204in Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981).

In Locke, the plaintiff sought damages for malignant mesothelioma suffered as a result of occupational exposure to airborne asbestos fibers between 1948 and 1972. Locke was apparently in excellent health until he experienced symptoms in 1978, and a subsequent chest X-ray revealed mesothelioma. The trial court held that Locke’s complaint, filed in 1978, was untimely because his exposure to asbestos had ended nearly six years earlier. The issue on appeal was whether the cause of action ac-. crued at or before the last tortious exposure in 1972 or at the time that Locke first developed mesothelioma several years later.

Defining “injury” (for purposes of § 8.01-230, the date on which a cause of action accrues) to mean “positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded,” the court held that Locke’s action was timely. 275 S.E.2d at 904-05. Stressing that it was not embracing a “discovery” rule, the court noted that it is conceivable that in a given case the evidence will demonstrate that an injury occurred months or even years before the onset of symptoms and diagnosis. Id. at 905. Rather, observing that a cause of action involves three essential elements, (1) a legal obligation of a defendant to a plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff caused by the violation or breach, the court held that a cause of action for personal injuries is keyed to the date of injury rather than the date of the wrongful act.5 Id. at 904. To hold otherwise, reasoned the court, would “result in the inequity of barring the mesothelioma plaintiff’s cause of action before he sustains injury.” Id. at 906.

The Locke court had no occasion to consider the further wrinkle presented by this case, i.e., assuming that the statute begins to run on the date of injury, whether it begins to run anew for each successive injury caused by the same wrongful act. Joyce argues that under Locke, a personal injury plaintiff has a separate cause of action and a separate two-year limitations window for each distinct injury caused by the plaintiff’s wrongful conduct, here exposure to asbestos. We disagree.

Virginia courts have long applied the rule that, for purposes of the statute of limitations, there is but a single, indivisible cause of action for all injuries sustained,6 whether or not all of the damage is immediately apparent. A common articulation of the rule states that

where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.

Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), citing Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 80 S.E.2d 574 (1954). See also Louisville and Nashville Railroad v. Saltzer, 151 Va. 165, 144 S.E. 456, 457 (1928) (“Whenever any injury, however slight it may be, is complete at the time the [act or omission] is completed, the cause of action then accrues.”).

*1205Nothing in the Locke opinion suggests that the Supreme Court of Virginia intended to depart from the indivisible cause of action theory. Rather, the court stressed that “[t]he rule we adopt today is but an application of our prior decisions ... to the facts of the present case.” Locke, 275 S.E.2d at 906.

In a recent case, this court, applying Virginia law, held that Locke did not afford a personal injury plaintiff separate causes of action for distinct injuries caused by the same tortious conduct by the defendant. In Brown v. American Broadcasting Co., Inc., 704 F.2d 1296 (4th Cir.1983), the plaintiff sued for defamation and emotional distress caused by an allegedly defamatory television program broadcast in 1978. The plaintiff was unaware of the broadcast until 1980, and filed her complaint in 1981, more than two years after the program was aired.

This court rejected the plaintiffs argument that under Locke the statute of limitations did not accrue until 1980, when she suffered the emotional harm for which she sought relief, because “[a]ll the necessary elements of these two claims were present, if they were ever present, upon the broadcast of the allegedly false and defamatory statement about the plaintiff.” 704 F.2d at 1300. The court went on to note that under Virginia law the statute of limitations does not accrue separately for each set of damages which results from a wrongful act. “Once a cause of action is complete and the statute of limitations begins to run, it runs against all damages resulting from the wrongful act, even damages which may not arise until a future date____ The emotional distress ... was only an additional injury resulting from the same wrongful act.” Id. See also Large v. Bucyrus-Erie Co., 707 F.2d 94 (4th Cir.1983), affirming the district court’s grant of summary judgment for defendants, 524 F.Supp. 285 (E.D. Va.1981) (“Of course, the general rule in Virginia is that the limitations period begins to run when the initial injury, even if relatively slight, is sustained, and the manifestation of more substantial injuries at a later date does not extend the limitations period.” 524 F.Supp. at 289).

In this case, although the date of Joyce’s first injury' — pleural thickening — is unclear, he does not dispute that it developed more than two years before this action was filed.7 Under Locke, the statute of limitations was not triggered until the pleural thickening developed; under Virginia’s indivisible cause of action rule, Joyce’s only cause of action for all of his asbestos-related injuries also accrued on that date. Therefore, Joyce’s complaint seeking damages from the manufacturers for pleural effusion and parenchymal asbestosis, both of which were allegedly caused by exposure to asbestos, was not timely filed and was properly dismissed by the district court.

We recognize that this rule may effectively preclude recovery for serious injuries that develop more than two years after an initial hurt, however slight, given the difficulty of proving future damages when the fact and extent of future injury is unknown. Although the indivisible cause of action theory is readily justified in cases of traumatic injury, where all damages are generally immediately apparent, its result may be harsh when applied to asbestos-related or other “creeping disease” cases where, by definition, there may be gaps between the onset of various distinct injuries caused by exposure to asbestos. We are not, of course, at liberty to modify the rule. Any change in favor of asbestos or other latent disease plaintiffs must come from the Supreme Court of Virginia or the General Assembly of that state.

Ill

DuPont

(A) Intentional failure to warn of or alleviate the danger of asbestos exposure.

In the first of two claims against DuPont, Joyce sought damages for his pleural *1206effusion and parenchymal asbestosis on the ground that his injuries were caused by DuPont’s failure to warn of or remove the hazards of asbestos.8 The district court granted DuPont’s motion to dismiss pursuant to the Virginia Workers’ Compensation Act’s exclusivity clause, which provides, in pertinent part, that “[t]he rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this Act ... shall exclude all other rights and remedies of such employee....” Va.Code § 65.1-40 (1980).

Joyce argues that the district court erred by failing to take proper account of the fact that he alleged an intentional tort. He claims that intentional torts are outside the scope of the Virginia Act,9 Va.Code §§ 65.1 et seq. (1980 & Supp.1985), and are therefore unaffected by its exclusivity provision.

The basis of an intentional tort exception to workers’ compensation exclusivity rules, recognized in many states, is the statutory language, also widely employed, in which application of an Act is limited to “injury by accident.”10 The Supreme Court of Virginia has not yet addressed the question whether an employer’s intentional tort gives rise to a cause of action outside of the Act.11 In Virginia, however, the Act also covers, in addition to injuries by accident, “occupational disease.”12 Because the occupational disease coverage is not expressly modified by a requirement that the disease be accidentally produced, Joyce’s remedy against DuPont for even an intentional tort would appear to be exclusively within the Act.

Joyce nevertheless urges that, if confronted with the issue, the Supreme Court of Virginia would recognize an intentional tort exception to coverage of injuries by accident and would extend that exception to occupational diseases caused by inten*1207tional employer misconduct. Even assuming that occupational disease coverage is so construed, however, the conduct alleged would be insufficient to invoke the exception, as applied in those jurisdictions which recognize an exception for intentional torts.

The Virginia Workers’ Compensation Act was modeled after the analogous statute in Indiana. Virginia courts have therefore considered decisions interpreting the Indiana Act13 in construing the substantially similar statute in Virginia. Barksdale v. H.O. Engen, Inc., 218 Va. 496, 237 S.E.2d 794, 796 (1977). Indiana has adopted the majority rule limiting the intentional tort exception to conduct by an employer intended to injure the employee. Intentional acts which merely cause, but are not designed to produce, an injury, are within the coverage of the Act. In Cunningham v. Aluminum Company of America, Inc., 417 N.E.2d 1186 (Ind.App.1981), an Indiana court held that “ ‘the mere knowledge and appreciation of a risk, short of substantial certainty, is not the equivalent of intent.’ ” Id. at 1190, quoting Prosser, Law of Torts, 4th Ed. 1971, 32. See also Blade v. Anaconda Aluminum Co., 452 N.E.2d 1036, 1038 (Ind.App.1983) (allegation that employer had intentionally jeopardized the safety of employees was insufficient to take claim out of the Act because plaintiff failed to allege facts supporting her assertion that the employer created unsafe working conditions toward the end that the decedent be injured); Larson’s Workmen’s Compensation Law, § 68.13 (1983) (“the common-law liability of the employer cannot, under the almost unanimous rule, be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or other misconduct of the employer short of genuine intentional injury.” More specifically, even conduct that includes such elements as “knowingly permitting a hazardous work condition to exist, knowingly ordering claimant to perform an extremely dangerous job, ... or even wilfully and unlawfully violating a safety statute, ... still falls short of the kind of actual intention to injure that robs the injury of accidental character.”)

In this case, Joyce alleged that DuPont knowingly exposed him to asbestos, but not that this exposure was designed to cause asbestos-related diseases. Thus, even under the Indiana rule, which would likely be followed by the Supreme Court of Virginia in the event it decides to adopt an intentional tort exception to its Workers’ Compensation Act, Joyce’s complaint fails to allege the sort of intentional conduct by DuPont that would remove his claim from the ambit of the Act.

(B) Fraudulent concealment of plaintiffs medical condition.

Joyce alleged, in the alternative, that DuPont fraudulently concealed from him his medical condition — pleural thickening — during the limitations period and thereby deprived him of his cause of action against the manufacturers, which the district court held, and which we agree, was not timely filed. The district court denied DuPont’s motion to dismiss this claim,14 and provided Joyce an opportunity to engage in discovery on the issue of concealment. Following discovery, the district court granted DuPont’s motion for summa*1208ry judgment,15 determining that Joyce had failed to raise a genuine issue of material fact with respect to his claim of fraudulent concealment.16 We agree and affirm the judgment of the district court.

The record on summary judgment is devoid of any forecast of evidence that DuPont intended to conceal from Joyce the existence of an actionable injury. Dr. Lay-ton, the Martinsville plant’s medical director, testified that he believed, until 1980,17 that the unilateral pleural thickening he had observed in Joyce’s X-rays, relatively unchanged since 1970, was not asbestos-related. Once he became sensitive to the possible link between pleural thickening and asbestos exposure, Dr. Layton sent Joyce to a pulmonary specialist, who first diagnosed pleural asbestosis in 1981. Lay-ton was not otherwise alerted to Joyce’s condition before this time; Joyce’s pulmonary function test was normal in 1980, and an outside radiologist who had reviewed the X-rays agreed that Joyce’s condition had not changed over the preceding decade.

In answer to DuPont’s interrogatories seeking from Joyce all facts in support of his claim of fraudulent concealment, Joyce responded only that DuPont knew of, but failed to disclose, the dangers of asbestos in 1964. The company’s possible awareness of such hazards, however, is not probative of its alleged intent to conceal Joyce’s pleural thickening. We therefore agree that summary judgment for DuPont was appropriate on the summary judgment record before the district court.

AFFIRMED.

. Joyce named as defendants A.C. and S., Inc., Eagle-Picher Industries, Owens-Corning Fiberglas Corp., Pittsburgh Corning Corp., Armstrong World Industries, Inc., The Celotex Corp., Fiberboard Corp., Armstrong Cork Co., Atlas Turner, Ltd., Bell Asbestos Mines, Ltd., E.I. DuPont de Nemours & Co., Inc., Gale Corp., Keene Corp., Lake Asbestos of Quebec, Ltd., GAF Corp., Southern Textile Corp., Raymark Industries, Inc., Nicolet, Inc., and Forty-Eight Insulation, Inc., each of which had its citizenship in states other than Virginia.

. In an order dated August 15, 1983, the district court granted the motions of William S. Legus, Sr., James S. Moore, both DuPont employees, and William S. Legus, Sr., Executor of the Estate of Bessie C. Legus, to intervene in this action. All of the claims of the Estate of Bessie C. Legus, as well as the claims of Moore and Legus against the manufacturers, were later settled. With respect to their claims against DuPont, references in this opinion to Joyce refer to the plaintiffs Moore and Legus as well.

. According to the deposition of DuPont’s medical director, prior to 1970 the company’s policy was to retain only an employee's initial X-ray and the most recent one taken, so long as intervening X-rays were free of changes. Consequently, the company retained only Joyce’s initial 1946 chest X-ray until 1970, after which time it saved X-rays taken each year.

. Joyce also claims to be in the high risk category for mesothelioma, lung and intestinal cancer, and other asbestos-related diseases.

. The Virginia statute of limitations was amended in 1985 to provide that actions for asbestos-related injuries or diseases accrue “when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician.” Va.Code § 8.01-249 (Supp.1985).

. A well-established exception to the rule permits plaintiffs separate rights of action for personal injuries and property damage. See Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949).

. Plaintiffs’ "Memorandum in Opposition of Celotex’ Motion for Summary Judgment,” at 3, n. 3.

. Virginia’s two-year statute of limitations would appear, of course, potentially to foreclose Joyce's claims against DuPont just as it bars his claims against the manufacturers. DuPont did not plead a statute of limitations defense, however, and the district court disposed of the claims on other grounds. We address the issue accordingly.

. Section 65.1-7 defines "injury” and "personal injury” to include “only injury by accident, or occupational disease as hereinafter defined, arising out of and in the course of the employment ____”

. For a detailed discussion of the intentional tort exception, see Larson’s Workmen's Compensation Law, § 68 (1983). Other theories for the exception include a notion that the employer severs the employment relationship by his intentional wrong or that the wrong does not arise out of or in the course of employment. Id. at § 68.11.

. That court has determined that injuries resulting from the intentional acts of third persons or fellow employees may be considered “accidental” within the meaning of the Act, provided they arise in the course of employment. See Continental Life Insurance Co. v. Gough, 161 Va. 755, 172 S.E. 264 (1934).

. Section 65.1-46 of the Act defines "occupational disease" as follows:

As used in this Act, unless the context clearly indicates otherwise, the term "occupational disease” means a disease arising out of and in the course of the employment. No ordinary disease of life to which the general public is exposed outside of the employment shall be compensable, except:

(1) When it follows as an incident of occupational disease as defined in this title; or
(2) When it is an infectious or contagious disease contracted in the course of employment in a hospital or sanitarium or public health laboratory.
A disease shall be deemed to arise out of the employment only if there is apparent to the rational mind, upon consideration of all the circumstances:
(1) A direct causal connection between the conditions under which work is performed and the occupational disease,
(2) It can be seen to have followed as a natural incident of the work as a result of the exposure occasioned by the nature of the employment,
(3) It can be fairly traced to the employment as the proximate cause,
(4) It does not come from a hazard to which workmen would have been equally exposed outside of the employment,
(5) It is incidental to the character of the business and not independent of the relation of employer and employee, and
(6) It must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence, though it need not have been foreseen or expected before its contraction.

. See Ind.Code Ann. (BURNS 1974 & Supp. 1985) §§ 22-3-2-1 et seq.

. DuPont contends that Joyce’s claim for fraudulent concealment is remediable under the Virginia Workers' Compensation Act and therefore should have been dismissed pursuant to the Act’s exclusivity provision. Although there is no Virginia authority on this point, a number of other jurisdictions allow separate actions for fraud where it produces a second injury or loss, such as the loss of a property right — Joyce’s cause of action against the manufacturers— claimed here. See Larson’s Workmen’s Compensation Law, § 68.32(a)-(c) (1983). We need not reach this issue, however, in light of the district court's disposition of Joyce’s claim on summary judgment. To the extent that the district court may have erred by reaching the merits of this claim, that error was harmless.

. The district court treated DuPont’s motion for a protective order as a motion for summary judgment pursuant to Fed.R.Civ.P. 56.

. DuPont sought and the district court granted a protective order pursuant to Fed.R.Civ.P. 26(c), after Joyce sought to depose a number of present and former DuPont employees without any showing that those individuals could have knowledge bearing on the alleged fraudulent concealment of Joyce’s medical condition. In his memorandum in opposition to DuPont’s motion for a protective order, Joyce argued that the proposed depositions would prove that DuPont knew as early as 1964 of the risks incident to asbestos exposure. Evidence that DuPont employees were aware of such hazards, however, although possibly relevant to Joyce’s claim of intentional failure to warn of and alleviate the risk, would not be probative of the company’s alleged fraudulent concealment of Joyce’s condition.

. In his deposition testimony, Dr. Layton attributed his enlightenment with respect to the possible connection between pleural thickening and asbestos to a lecture that he attended in 1980.