Covalt v. Carey Canada, Inc.

PIVARNIK, Justice.

This cause comes to us on a certification of a question of state law from the United States Seventh Circuit Court of Appeals. This Court has jurisdiction to answer said certified question pursuant to Ind.R.App.P. 15(0). The cause now before the Seventh Circuit, on appeal from the District Court for the Southern District of Indiana, presents a circumstance where a worker is diagnosed as having asbestosis more than ten (10) years after his last exposure to asbestos in his workplace. The cause is not a worker's compensation action, but rather, a products liability action against those who are alleged to have supplied asbestos to the employer.

Cleremont Covalt worked with asbestos at Proko Industries in Indiana between 1963 and 1971. He believes that Carey Canada, Inc., a subsidiary of Celotex Corp., and Union Carbide Corp. furnished Proko with raw asbestos without properly warning either Proko or him of its dangers. In 1986, physicians concluded that Covalt had asbestosis and lung cancer. He and his wife commenced this action for personal injuries and loss of consortium promptly in the United States District Court against Carey Canada, Inc. and Union Carbide Corp. Defendants filed motions for summary judgment asserting Ind.Code § 33-1-1.5-5, the ten (10) year statute of repose in the Indiana Products Liability Act, which provides, in pertinent part, as follows:

any product liability action in which the theory of liability is negligence or strict liability in tort must be commenced within two (2) years after the cause of action acerues or within ten (10) years after the delivery of the product to the initial user or consumer; ....1

*384District Judge McKinney overruled Defendants' motions because of this Court's decision in Barnes v. A.H. Robins Co. (1985), Ind., 476 N.E.2d 84. Applying Barnes, he determined that the accrual of a cause of action should be determined by a discovery rule in cases of protracted exposure to hazardous substances. Covalt v. Carey-Canada,, Inc. (S.D.Ind.1987), 672 F.Supp. 367, 368. Defendants filed an interlocutory appeal, and the Seventh Circuit Court of Appeals found that the question of whether this action is barred by the statute is controlled by the law of the State of Indiana, and further found there were no clear controlling precedents in the decisions of the Supreme Court of Indiana to answer the precise question presented. Therefore, the Seventh Circuit found this to be an appropriate question to be certified to this Court pursuant to Ind.R.App.P. 15(0).

The Seventh Circuit Court of Appeals accordingly certified the following question to this Court:

Whether a plaintiff may bring suit within two years after discovering a disease and its cause, notwithstanding that the discovery was made more than ten years after the last exposure to the product that caused the disease.

We now answer this certified question in the affirmative and find that a plaintiff may bring suit within two years after discovering a disease and its cause, notwithstanding that the discovery was made more than ten years after the last exposure to the product that caused the disease. This is consistent with our holding in Bornes and is limited to cases, such as this one, where an injury to a plaintiff is caused by a disease which may have been contracted as a result of protracted exposure to a foreign substance.

Initially, it should be noted that in Barnes, this Court referred to other statutes for guidance in determining legislative intent. Specifically, we noted that the Legislature recognized the need for a discovery type of remedy in the case of exposure to radiation in the Occupational Diseases Act, Ind.Code § 22-8-7-9(f)(2). We noted in Barnes that although the Legislature did not apply a discovery rule to other substances, in the case of a tort of the nature contemplated by the certified question presented in Barnes, the Legislature provided for action to be brought within two years after the cause accrues, leaving the courts to determine when the cause accrues. Barnes, 476 N.E.2d at 86-87. In the instant action, Defendants concede that in cases of disease, a plaintiff's cause of action accrues on the date he discovered or should have discovered the alleged injury and that the injury was caused by the defendant's products. (Defendants-Appellants' Brief at 12-183).

As was the situation in Barnes, this case involves a latent disease which may have been contracted as a result of the introduction of a foreign substance into a person's body. In Barnes, that foreign substance was the Dalkon shield intrauterine device manufactured by A.H. Robins Co., Inc. In the present case, the foreign substance is asbestos, a naturally occurring substance that the defendants allegedly mined and supplied to the plaintiff's employer in raw, chrysotile, fibrous form. In both cases, the foreign substance was introduced into the plaintiff's body long before any injury or resultant disease became manifest, Al though it is true that the plaintiff's cause of action did not acerue for purposes of the two (2) year statute of limitations set forth in Ind.Code § 38-1-1.5-5 until such time that the plaintiff knew or should have discovered that he suffered an injury or impingement, the fact remains that the injury was inflicted, and continued to be inflicted, during the time of protracted exposure to an inherently dangerous foreign substance.

Like Judge McKinney, this Court is not unmindful of the fact that in Barnes the plaintiffs discovered their diseases within ten years of the initial introduction of the Dalkon shield intrauterine device into their bodies, whereas in the present case, the discovery did not take place until more *385than ten years after Covalt's last exposure to asbestos. Nonetheless, if a disease is the result of protracted exposure to a foreign substance, then the injury is not only ongoing and continuous in nature, but becomes compounded as time passes. By definition, the injury begins from the moment the foreign substance is introduced into the body, even if the resultant disease does not manifest itself until many years later. This was made clear in Barnes, where this Court recognized the problem as follows:

The problem comes about when the act, seemingly innocent, causes changes so subtle and latent that they are not discoverable to the plaintiff until they manifest themselves many years later.

Barnes, 476 N.E.2d at 86. Accordingly, where the seeds of injury and latent disease are introduced into the body as a result of protracted exposure to a foreign substance, a plaintiff's cause of action cannot be barred by the ten year statute of repose, no matter when the plaintiff knew or should have discovered the resultant disease.

In Berns Constr. Co. v. Miller (1987), Ind., 516 N.E.2d 1053, aff'g (1986), Ind.App., 491 N.E.2d 565, this Court summarily affirmed a decision handed down by the First District Court of Appeals in a case involving statutes of limitation and repose in a personal injury action arising out of injuries sustained on a construction site. At issue in Berns was whether Ind.Code § 34-1-2-2(1), a two year statute of limitation for injuries to person, character or personal property, was supplanted by Ind.Code § 34-4-20-2, which requires actions to recover damages against contractors and architects to be filed within ten years from the date of substantial completion of the improvement to real property. In discussing both the substantive and procedural qualities of statutes of repose, the Court of Appeals noted the following:

The statute [of repose] acquires its substantive quality by potentially barring a right of action before the injury has occurred if the injury occurs subsequent to the prescribed time period. On the other hand, the statute operates as an ordinary statute of limitation as to events occurring before the expiration of the prescribed time period.

Berns, 491 N.E.2d at 570 (emphasis added).

In cases such as this one, which involve an inherently dangerous and toxic foreign substance being visited into the body over a protracted period of time, there is no reason to distinguish whether the injury occurs "subsequent to the proscribed time period" or before. Inherently dangerous substances like raw asbestos fiber will not become any safer with time. Even assuming, arguendo, that asbestos could be made safer by some process or procedure yet unknown, that process or procedure must necessarily begin with raw asbestos. An inherently dangerous substance like the raw, chrysotile, fibrous asbestos that Clere-mont Covalt was exposed to in this case is just as hazardous when it is first introduced into the market as it is ten (10) or even fifty (50) years later. Accordingly, since one can be injured from prolonged exposure to newly milled and manufactured asbestos just as readily as asbestos which has been on the market for ten (10) years or more, no purpose is served in legally distinguishing the two. Cf. Knox v. AC & S, Inc. (S.D.Ind.1988), 690 F.Supp. 752. .

Consequently, it does not matter whether Covalt's injury was the result of protracted exposure to newly manufactured asbestos or asbestos which was introduced into the market more than ten (10) years ago. We find our statute of repose inapplicable to cases involving protracted exposure to an inherently dangerous foreign substance which is visited into the body.

Of course, the two (2) year statute of limitations contained in Ind.Code § 88-1-1.5-5 still applies and the cause of action is deemed to accrue when Cleremont Covalt knew or should have discovered his injury or disease. Since the Covalts filed their complaint within two years of discovery in the instant case, there is no issue with regard to the two year limitations period.

*386Defendants urge that there are stark parallels between the present case and Do-gue v. Piper Aircraft Corp. (1981), 275 Ind. 520, 418 N.E.2d 207. In Dague, this Court held that section five of the 1978 Product Liability Act barred Kathy Da-gue's wrongful death cause of action where her husband died as a result of injuries he sustained in an airplane crash which occurred more than ten years after the aircraft was first placed in the stream of commerce. Dague, 275 Ind. at 523, 526, 418 N.E.2d at 209, 211. Defendants argue that in Dague, as in the present case, the cause of action accrued more than ten years after the allegedly defective product was delivered to the initial user or consumer. In addition, Defendants maintain in both cases the alleged defect and damages were not "discovered" until more than ten years after the product was first placed in the stream of commerce. These arguments are unpersuasive for a number of reasons. First, Dague involved a one-time occurrence which resulted in immediate injury and death less than two months thereafter. Dague, 275 Ind. at 522, 418 N.E.2d at 209. Second, the Dague airplane crash occurred outside of the ten year statute of repose, whereas Cleremont Covalt's alleged injury and resultant disease is the result of protracted exposure to asbestos, an inherently dangerous product that was just as dangerous when first introduced into the market as it was when it was visited into his body for the very first time.

In Barnes, this Court recognized that Dague is readily distinguishable from cases involving inherently dangerous foreign substances that are visited into the body. We stated the following in discussing the rationale behind adopting a discovery rule:

Large numbers of new chemicals and products are being introduced into our economy and workplace that have resulted in a growing number of diseases and injuries that oftentimes do not manifest themselves until long after exposure ends. In some cases damage does not follow the negligent act of introducing the product or drug into the body for a period of years. In other cases the damage, in the form of progressive disease or injury, is not apparent to the extent that it can be ascertained until long after the two year statute has run.

Barnes, 4716 N.E.2d at 85 (emphasis added). The same rationale holds true today.

As Judge McKinney correctly points out, we are not concerned here with the introduction of a product into the marketplace. Here we are concerned with exposure to a hazardous foreign substance which causes disease. Covalt v. Carey-Canada, Inc. (S.D.Ind.1987), 672 F.Supp. 367, 368. In the present case, Defendants Carey Canada, Inc. and Union Carbide Corp. are alleged to have furnished Proko with raw asbestos, a naturally occurring substance which was mined by both Defendants herein. Whereas Dague dealt with product failure, the present case involves protracted exposure to a foreign substance which results in slow, progressive, undetectable injury and latent disease. We cannot say that the Legislature intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance.

Finally, even a federal court that recent ly suggested a narrower reading of Barnes than we take today aptly pointed out the primary purpose of statutes of repose, that of recognizing the improvements of product design and safety that come with time, is not served in cases involving asbestos and its related diseases. Knox v. AC & S, Inc. (S.D.Ind.1988), 690 F.Supp. 752, 760 (citing England v. Asbestos Corp. Ltd., No. IP 81-163-C (Feb. 13, 1987)). Asbestos and naturally occurring substances like it are not subject to design and safety improvements. The Knox court even went so far to say that asbestos will not and most probably cannot improve with time, will always be a dangerous product, and consequently, does not appear in any way to fall within the rationale of the rule. Knox, 690 F.Supp. at 760. On the other hand, Defendants maintain that regardless of whether asbestos can be made safer, the working conditions of raw asbestos handlers have improved over time. For example, employers now supply their workers with respira*387tors to decrease their likelihood of inhaling asbestos dust. From this, Defendants argue the policy behind the repose statute is, in fact, served in asbestos-related disease cases.

Whether the policy behind a repose statute is served in worker's occupational disease compensation actions is not at issue in this cause. While it is true that the Indiana Worker's Occupational Diseases Compensation Act specifically provides for limitations of actions against an employer for cases involving occupational diseases caused by the inhalation of asbestos dust, the present case is not a worker's compensation action. The Legislature did, in fact, set specific statutory limitations of action in occupational asbestos-related disease cases, and provided that no compensation shall be payable under the Worker's Compensation Act unless:

disablement occurs three years after last exposure to the hazards of the disease if the last exposure was before July 1, 1985, [IC 22-38-7-9(£)(8) ];
disablement occurs twenty years after last exposure to the hazards of the. disease if the last exposure was on or after July 1, 1985, and before July 1, 1988, [IC 22-3-7-9(f)(4) ]; and
disablement occurs thirty-five years after last exposure to the hazards of the disease if the last exposure was on or after July 1, 1988, [IC 22-3-7-9()(5) ].

It may very well be that the Legislature contemplated improvements in the workplace over time when one's employees handle raw asbestos. But it is apparent from the statutes enumerated above that the Legislature also recognized the long latency period between exposure and manifestation in asbestog-related diseases.

This Court has held that when the Legislature has made its intentions clear as to a statutory period of limitations, we have been guided by those intentions and applied them in our determinations. Barnes, 476 N.E.2d at 86 (citing Bunker v. National Gypsum Co. (1982), Ind., 441 N.E.2d 8, appeal dismissed (1983), 460 U.S. 1076, 103 S.Ct. 1761, 76 LEd.2d 338; and Dague, supra). Moreover, the Legislature has the sole duty and responsibility to determine what constitutes a reasonable time for bringing an action, unless the period allowed is so manifestly insufficient that it represents denial of justice. Accordingly, because of the long latency period with asbestos-related diseases, most plaintiffs' claims would be barred even before they knew or reasonably could have known of their injury or disease and they would be denied their day in court if the ten year statute of repose were applied. To require a claimant to bring his action in a limited period in which, even with due diligence, he could not be aware that a cause of action exists would be inconsistent with our system of jurisprudence. Barnes, 476 N.E.2d at 86.

Accordingly, our holding today is limited to the precise factual pattern presented and does not apply to worker's occupational disease compensation actions. This opinion is accordingly limited to product liability actions in which the theory of liability is negligence or strict liability in tort. Ind. Code § 88-1-1.5-5.

Of course, we make no determination on the merits of the Covalts' causes of action against Carey Canada, Inc. and Union Carbide Corp. which are now before the Seventh Circuit Court of Appeals. The Co-valts' causes of action are not barred by the ten year statute of repose set forth in Ind.Code § 88-1-1.5-5.

The certified question answered, this cause is remanded to the United States Court of Appeals for the Seventh Circuit for further proceedings.

DeBRULER and GIVAN, JJ., concur. SHEPARD, C.J., and DICKSON, J., dissent with separate opinions.

. While not determinative of the outcome in this case, it should be noted that the Indiana Legislature has amended Ind.Code § 33-1-1.5-5 while the certified question presented herein was pending before this Court. Ind.Code § 33-1-1.5-5 now expressly provides an exception to its limitations and repose periods for asbestos-related actions. This exception is delineated in Ind.Code § 33-1-1.5-5.5 (effective July 1, 1989), which provides in pertinent part *384that an asbestos-related action must be brought within two (2) years of the date when the injured person knows that he has an asbestos-related disease or injury.