Givens v. Anchor Packing, Inc.

466 N.W.2d 771, 237 Neb. 565, 1991 Neb. LEXIS 129

• Court: Nebraska Supreme Court
• Decided: March 15, 1991
• Docket: 90-697
• Status: Published

Opinions

Caporale, J.

Pursuant to the provisions of Neb. Rev. Stat. § 24-219 (Reissue 1989), this court accepted certification from the U.S. District Court for the District of Nebraska of the following question:

Whether the 1981 amendment to Neb. Rev. Stat. § 25-224(2) and (5) can be retroactively applied to causes of action based upon injury allegedly resulting from exposure to asbestos products which were first sold for use or consumption more than ten years prior to August 30, 1981, which causes had earlier been extinguished by the provisions of the 1978 enactment of Neb. Rev. Stat. § 25-224(2).

We answer in the negative; that is, the amendment may not be applied retroactively.

In considering a motion for summary judgment filed by some of the defendants, the certifying court has found that there is no genuine issue as to the following material facts: Plaintiff Harold Givens was employed as a plumber in the construction industry from 1945 until he retired in 1984 at the age of 62; in the course of his employment he was exposed to asbestos products manufactured and sold for use or consumption by the defendants prior to August 30,1971; these asbestos products contained at least some of the components mentioned in Neb. Rev. Stat. § 25-224(5) (Reissue 1989); in 1987, plaintiff discovered facts which led to a diagnosis of injury caused by his employment exposure to asbestos products; and he filed his lawsuit on June 17,1988.

Prior to its amendment, § 25-224 (Reissue 1979) read, in pertinent part:

(1) All product liability actions shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action . . . shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

Effective August 30,1981, § 25-224 was amended to read, in pertinent part:

(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.

(2) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed ... by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30,1981.

Thus, the present statutory language purports to except from the 10-year period contained in § 25-224(2) damages based on injuries allegedly resulting from exposure to certain asbestos components. The question is whether this exception can be retroactively applied to lift a bar which had already been completed before the exception was adopted.

Plaintiffs argue that the postamendment text of the statute, being the edition in effect both at the time the cause of action accrued and when the claim was filed, is the version which is applicable to the suit. However, as we have said many times down through the years:

“ ‘It is well settled that it is competent for the legislature to change statutes prescribing limitations to actions, and that the one in force at the time suit is brought is applicable to the cause of action. The only restriction on the exercise of this power is, that the legislature cannot remove a bar or limitation which has already become complete, and that no limitation shall be made to take effect on existing claims without allowing a reasonable time for parties to bring action before these claims are absolutely barred by a new enactment.’...”

Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 563-64, 279 N.W.2d 603, 607 (1979), quoting Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974), quoting Horbach v. Miller, 4 Neb. 31 (1875), quoting Bigelow v. Bemis, 84 Mass. (2 Allen) 496 (1861), citing Darling v. Wells, 55 Mass. (1 Cush.) 508 (1848), Brigham v. Bigelow, 53 Mass. (12 Met.) 268 (1847), Willard v. Clarke, 48 Mass. (7 Met.) 435 (1844), Wright v. Oakley & another, 46 Mass. (5 Met.) 400 (1843), and Battles v. Fobes, 35 Mass. (18 Pick.) 532 (1836), more fully reported 36 Mass. (19 Pick.) 578 (1837). This maxim has been followed by this court for fivescore and 16 years.

While we have never applied to the statute and amendment in question the rule that the Legislature cannot remove a limitations bar which has become complete, the maxim states a broad principle on the limits of legislative power, clearly applicable to the question certified. Whether § 25-224(2) is characterized as a statute of repose (as correctly advocated by defendants), or as a statute of limitations (as advocated by plaintiffs), it is a statute prescribing limitations on actions. As such, its amendment cannot resurrect an action which the prior version of the statute had already extinguished.

Although we have never fully articulated the rationale behind this rule, it is grounded upon the due process guarantee found in Neb. Const, art. I, § 3, which prevents persons from being deprived of their property without due process of law. The immunity afforded by a statute of repose is a right which is as valuable to a defendant as the right to recover on a judgment is to a plaintiff; the two are but different sides of the same coin. Just as a judgment is a vested right which cannot be impaired by a subsequent legislative act, Karrer v. Karrer, 190 Neb. 610, 211 N.W.2d 116 (1973), so, too, is immunity granted by a completed statutory bar. See Denver Wood Products Co. v. Frye, 202 Neb. 286, 275 N.W.2d 67 (1979) (a person has no vested right in the running of a statute of limitations unless it has completely run and barred the action before the new limitation becomes effective). These are substantive rights recognized by Nebraska law and protected by its Constitution.

Plaintiffs cite us to a number of cases from other jurisdictions in support of their argument against the vested right theory. Most of these cases are from jurisdictions which either had a history of viewing even a perfected bar as a mere procedural right or made no distinction between statutes of limitations and statutes of repose.

For example, plaintiffs point to the case of Campbell v. Holt, 115 U.S. 620, 6 S. Ct. 209, 29 L. Ed. 483 (1885), as authority against the vested right theory. In Campbell, the U.S. Supreme Court upheld the Texas Supreme Court’s determination that the repeal of a statute of limitations removed an already completed bar on an action for debt and that this did not deprive the defendant of a constitutionally protected property right. Justices Bradley and Harlan dissented, quoting the same passage from Bigelow v. Bemis, supra, which we have been repeating these long years. While this might suggest a disapproval of Bigelow v. Bemis on the part of the Campbell majority, we observe that Campbell merely affirmed a determination of the Texas Supreme Court that retroactive application did not offend the federal Constitution. Since the statute at issue in Campbell was suspended by a provision of the Texas Constitution, the Texas court did not need to address state law questions. Our determination, however, is controlled by state law. It is interesting to note that just 2 years after the U.S. Supreme Court decided Campbell, the Texas court, without criticizing Campbell, found that a statute preventing the assertion of a statute of limitations in tax cases was unconstitutional ex post facto legislation as applied to parties who already enjoyed a completed bar. See Mellinger v. City of Houston, 68 Tex. 37, 3 S.W. 249 (1887).

Plaintiffs also place particular emphasis on Murphree v. Raybestos-Manhattan, Inc., 696 F.2d 459 (6th Cir. 1982), in which a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit held that revival of a barred asbestos claim was not impermissible under Tennessee’s vested rights doctrine, predicting that the Tennessee Supreme Court would overrule Ford Motor Company v. Moulton, 511 S.W.2d 690 (Tenn. 1974), cert. denied 419 U.S. 870, 95 S. Ct. 129, 42 L. Ed. 2d 109, which held that revival of a barred cause of action was impermissible under the state Constitution. The rationale for this prediction was language in McCroskey v. Bryant Air Conditioning Company, 524 S.W.2d 487 (Tenn. 1975), holding that a statute of limitations runs from discovery, quoting from the Moulton dissent. The language relied upon in Murphree was concerned with when a statute of limitations begins to run and not with whether rights vested after the period had expired. The Murphree court also ignored the effect of the completed bar of a statute of repose (as distinguished from one of limitations), that is, that a statute of repose eliminates the possibility of a cause of action accruing. See Colton v. Dewey, 212 Neb. 126, 321 N.W.2d 913 (1982) (a medical malpractice case citing Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972)). Whatever the accuracy of the sixth circuit court’s prediction may be as to the future conduct of the Tennessee Supreme Court, the prediction is not applicable to Nebraska.

While in MacMillen v. A. H. Robins Co., 217 Neb. 338, 348 (1984), we held one fraudulently concealing a product’s dangers was estopped from asserting the product liability statute of repose, we have consistently stated that a completed bar is a substantive, vested right which the Legislature cannot abrogate. Grand Island School Dist. #2 v. Celotex Corp., 203 Neb. 559, 279 N.W.2d 603 (1979); Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974); Horbach v. Miller, 4 Neb. 31 (1875); Denver Wood Products Co. v. Frye, 202 Neb. 286, 275 N.W.2d 67 (1979). In doing so, we have followed the path set forth in Bigelow v. Bemis, 84 Mass. (2 Allen) 496 (1861), and advocated by the Campbell dissent, and we have not been unaccompanied. See, e.g., LeBlanc v. City of Lafayette, 558 So. 2d 259 (La. App. 1990); Dickens v. Southtrust Bank of Alabama, 570 So. 2d 610 (Ala. 1990); Waller v. Pittsburgh Corning Corp., 742 F. Supp. 581 (D. Kan. 1990); Conoco, Inc. v. Phipps, 789 P.2d 253 (Okla. App. 1989); Whitt v. Roxboro Dyeing Co., 91 N.C. App. 636, 372 S.E.2d 731 (1988); School Bd. of the City of Norfolk v. U.S. Gypsum, 234 Va. 32, 360 S.E.2d 325 (1987); Pait v. Ford Motor Co., 515 So. 2d 1278 (Fla. 1987); Ayo v. Control Insulation Corp., 477 So. 2d 1258 (La. App. 1985), cert. denied 481 So. 2d 1349 (1986); Cheswold Vol. Fire Co. v. Lambertson Const., 489 A.2d 413 (Del. 1984); Matter of M. D. H., 437 N.E.2d 119 (Ind. App. 1982); Dobson v. Quinn Freight Lines, Inc., 415 A.2d 814 (Me. 1980); Del Monte Corp. v. Moore, 580 P.2d 224 (Utah 1978); D.Z.M. v. D.A.G., 41 Colo. App. 377, 592 P.2d 1 (1978); Haase v. Sawicki, 20 Wis. 2d 308, 121 N.W.2d 876 (1963); Jackson v. Evans, 284 Ky. 748, 145 S.W.2d 1061 (1940); In re Swan’s Estate, 95 Utah 408, 79 P.2d 999 (1938); Wasson v. State ex rel. Jackson, 187 Ark. 537, 60 S.W.2d 1020 (1933); Cathey v. Weaver, 111 Tex. 515, 242 S.W. 447 (1922).

It is true that some states have recently departed from this “vested right” approach in order to accommodate those suffering from asbestos illnesses. See, e.g., City of Boston v. Keene Corp., 406 Mass. 301, 547 N.E.2d 328 (1989). Such an approach, however, tramples upon the vested rights of others. An edict which is not applied uniformly and in accordance with preestablished principles to all who are subject to its provisions cannot be characterized as a rule of law.

It is plaintiffs’ further position that the Legislature intended the 1981 amendments to § 25-224 to have retroactive application. Even assuming, arguendo, that the Legislature did have such an intent, Grand Island School Dist. #2, supra, Educational Service Unit No. 3, supra, and Horbach, supra, all state that the Legislature does not have the power to remove a bar which has already become complete. If the bar was completed before passage of the amendment, then the Legislature’s intent as to retroactive application is immaterial.

Plaintiffs next contend that application of the prior version of § 25-224 to asbestos cases violates the open courts doctrine of Neb. Const, art. I, § 13. Whatever the merits of this contention may be, it is not now properly before us. This is true for two reasons. First, the constitutionality of the prior variant of this provision is not a question certified to this court; the question certified is whether the 1981 amendments may be applied retroactively. Second, Neb. Ct. R. of Prac. 9E (rev. 1989) requires a party presenting a case involving a constitutional issue to file a copy of its brief with the Attorney General and proof of such service with the Clerk of the Supreme Court. This requirement is to allow the state the opportunity to defend the laws which it has enacted. The record does not evince compliance with rule 9E. If a party fails to observe rule 9E, this court will not consider the constitutionality of the statute under attack. Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).

Plaintiffs further contend that “[t]he ten-year limitations period of Neb. Rev. Stat. § 25-224 [prior to the 1981 amendment] does not apply generally to causes of action for diseases caused by defective products which are preceded by long latency periods and specifically to such diseases caused by asbestos.” Again, the question before us is the scope of § 25-224 after its amendment in 1981 and not the range of the statute prior to its amendment. Thus, this contention, whatever its merits, is outside the scope of the inquiry here, for we are limited to answering the question of law which was certified. § 24-219 (“[t]he Supreme Court may answer questions of law certified to it [by a federal court] when requested by the certifying court”). The question certified presupposes that plaintiffs’ action would be barred under the earlier version of § 25-224.

For the foregoing reasons, we answer the question certified to us in the negative.

Judgment entered .