Covalt v. Carey Canada, Inc.

543 N.E.2d 382, 1989 WL 103233
CourtIndiana Supreme Court
DecidedSeptember 21, 1989
Docket98 S00-8811-CQ-922
StatusPublished
Cited by50 cases

This text of 543 N.E.2d 382 (Covalt v. Carey Canada, Inc.) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Covalt v. Carey Canada, Inc., 543 N.E.2d 382, 1989 WL 103233 (Ind. 1989).

Opinions

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

[384]*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 [385]*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

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Cite This Page — Counsel Stack

Bluebook (online)
543 N.E.2d 382, 1989 WL 103233, Counsel Stack Legal Research, https://law.counselstack.com/opinion/covalt-v-carey-canada-inc-ind-1989.