Copeland v. Armstrong Cork Co.

447 So. 2d 922
CourtDistrict Court of Appeal of Florida
DecidedApril 25, 1984
Docket81-1369
StatusPublished
Cited by19 cases

This text of 447 So. 2d 922 (Copeland v. Armstrong Cork Co.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Copeland v. Armstrong Cork Co., 447 So. 2d 922 (Fla. Ct. App. 1984).

Opinion

447 So.2d 922 (1984)

Lee Loyd COPELAND and Vaudeen Copeland, Appellants,
v.
ARMSTRONG CORK COMPANY, et al., Appellees.

No. 81-1369.

District Court of Appeal of Florida, Third District.

March 6, 1984.
As Corrected on Denial of Rehearing April 25, 1984.

*924 Frederick M. Baron, P.A. and Jane N. Saginaw, Dallas, Tex., Robles & Robles and Brian Weinstein, Miami, for appellants.

Dixon, Dixon, Hurst, Nicklaus & Webb and M. Stephen Smith, III, Miami, for Armstrong Cork Co.

Paul & Thomson and Jon W. Zeder, Miami, for GAF Corp.

Lee, Schulte, Murphy & Coe and Thomas J. Schulte, Miami, for Keene Corp.

Blackwell, Walker, Gray, Powers, Flick & Hoehl and James C. Blecke, Miami, for Owens-Corning Fiberglas Corp.

Steven R. Berger, Miami, for H.K. Porter Co., Inc.

Corlett, Merritt, Killian & Sikes and Gerald E. Rosser, Miami for Fibreboard Corp.

Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern, Miami, for Eagle-Picher Industries, Inc.

Thompson & Clark and Robert H. Schwartz, Miami, for Pittsburgh Corning Corp. and Combustion Engineering, Inc.

No appearance for Nicolet Industries, Inc.

No appearance for Owens-Illinois, Inc.

Before HUBBART and DANIEL S. PEARSON, JJ., and EZELL, BOYCE F., Jr. (Ret.) Associate Judge.

HUBBART, Judge.

The central issue presented by this appeal is at what point in time does a cause of action accrue for purposes of the statute of limitations in a products liability tort action [§§ 95.11(3)(e), 95.031(2), Fla. Stat. (1981)] where the claimed injury is a so-called "creeping disease," such as asbestosis, acquired over a period of years as a result of long-term occupational exposure to deleterious substances. We hold, in accord with the established law, that such a cause of action accrues when "the facts giving rise to the cause of action [a] were [actually] discovered [by the claimant] or [b] should have been discovered [by the claimant] with the exercise of due diligence...", § 95.031(2), Fla. Stat. (1981), whichever is earlier; this occurs whenever the accumulated effects of the deleterious substance manifest themselves to the claimant in a way which reasonably supplies some evidence of causal relationship to the subject manufactured product. We conclude that, absent special circumstances, this determination is generally a question of fact for the jury and is not, as a rule, appropriate for resolution on a summary judgment. We, accordingly, reverse the final summary judgments entered below in favor of the defendants in this products liability tort action. The action herein was not barred as a matter of law by the applicable statute of limitations; nor was it barred on the additional product identification ground relied upon by the trial court below.

I

The facts relating to the central issue on appeal are as follows. From 1942 until his retirement in 1975, the plaintiff Lee Loyd Copeland worked as a boilermaker in various shipyards and at numerous other jobs in and around the state of Florida, during which time he was exposed to various asbestos products. These products, in turn, were allegedly manufactured, sold and distributed by 16 separate companies or their predecessors in interest, all of which were made party defendants in this action.[1] The plaintiff Copeland claims that *925 this long-term exposure to these asbestos products caused his health to deteriorate slowly over a period of years until he contracted the disease of asbestosis from which he suffers today. These asbestos products primarily appeared in a white, dust-like form which was present during a good deal of the plaintiff Copeland's entire work life.

The plaintiff Copeland apparently first became aware of the possible health hazards from this asbestos dust in 1958 or 1959 when another crew at his work site walked off the job because of alleged health hazards from the excessive dust. From that point on, he heard general rumors from fellow workers that the asbestos dust could be harmful to one's health. It was not until the late 1960's, however, that he began to experience physical discomfort; he began at times to have breathing problems and watery eyes when working around the white asbestos dust. In April 1972, he experienced more serious symptoms — shortness of breath and coughing up blood — and immediately thereafter consulted two doctors in Plant City, Florida. These doctors both diagnosed the plaintiff's condition as pneumonia and emphysema. Neither doctor linked this condition to the plaintiff's work, but one doctor did suggest a change in jobs to avoid the dusty conditions at the job site. The plaintiff thereafter returned to the job site, but this time worked in a supervisory capacity.

From 1972 on, the plaintiff's physical condition slowly deteriorated until he retired in April 1975. At that point, he was unable to work due to shortness of breath, a symptom consistent with emphysema, and accordingly retired pursuant to his doctor's advice. In 1978, the plaintiff was referred to another doctor from Tampa who examined and diagnosed the plaintiff as having asbestosis, contracted as a result of his long-term exposure to asbestos dust at work from 1942-1975;[2] a second doctor concurred in this diagnosis.

On April 17, 1979, the plaintiff filed the instant lawsuit against the defendants in the Circuit Court for the Eleventh Judicial Circuit of Florida in and for Dade County, Florida. The complaint, as amended, alleged that the plaintiff during his occupational life was exposed to and injured by asbestos products manufactured, sold and distributed by the various defendants herein, that the defendants failed to warn the plaintiff that exposure to asbestos products creates a grave health risk, that defendants' failure to so warn was a proximate cause of plaintiff's injuries and that the defendants are therefore liable under theories of strict liability in tort, negligence and breach of warranty. The plaintiff's wife Vaudeen Copeland also sued as a co-plaintiff in this cause, claiming loss of consortium and damages as a result of the disease allegedly inflicted upon her husband.

After discovery revealed the above-stated facts, the 13 defendants remaining in the lawsuit[3] filed motions for summary judgment on various grounds. The trial court, after a full hearing, entered a final summary judgment for all defendants on the ground that the action was time-barred by the applicable statutes of limitations [§§ 95.11(3)(e), 95.031(2), Fla. Stat. (1981)]. The trial court also entered a final summary judgment for the defendants GAF Corporation, H.K. Porter Company, Inc. and Raybestos Manhattan, Inc. on the ground that the plaintiff had failed to adduce sufficient proof that the asbestos products to which he was exposed were manufactured, *926 distributed or sold by the above-stated defendants. This appeal follows.[4]

II

We turn first to the controlling rules of law which govern this appeal, as to both the statute of limitations and the product identification grounds given below for the final summary judgments herein.

A

The applicable statute of limitations in Florida plainly provides that "[a]n action [in tort] for injury to a person founded on the design, manufacture, distribution, or sale of personal property ...," as here, "shall be commenced ... [w]ithin four years." § 95.11(3)(e), Fla. Stat. (1981).

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