In re Joint Eastern & Southern District Asbestos Litigation

721 F. Supp. 433, 1988 U.S. Dist. LEXIS 16897, 1989 WL 119736
District Court, E.D. New York·Decided September 22, 1988·No. No. CV-87-5277·Published·Cited by 8 cases

Opinion

MEMORANDUM AND ORDER

SIFTON, District Judge.

Defendants in this asbestos-related personal injury and wrongful death case move for summary judgment based on New York’s borrowing statute. Because that statute applies only to causes of action that “accrue without the state” and because defendants have not established this to be the case here as a matter of law, the motions are denied.

The facts are in large part undisputed. Plaintiff and her decedent resided in New York from 1962 to 1975, during which time deceased husband worked as an insulator with asbestos products. Plaintiff testified in her deposition, “He [decedent] would get winded, dizzy, coughing. I would hear a wheezing, you know.... I think I noticed it early in the ’70’s.” In 1975, plaintiff and her husband moved to Arizona, and in that and other states her husband continued to be exposed to asbestos. In 1979, he was diagnosed in Arizona as having lung cancer and died in 1981. This action would be time-barred under Arizona’s statute of limitations, but, unless subject to the borrowing statute, it is timely under New York’s revival statute, L.1986 Ch. 682 § 4, reprinted in 1 McKinney’s Session Laws of New York 1567 (1986).

Because jurisdiction is based on diversity of citizenship, we apply New York law, including New York conflict-of-laws rules. Klaxon Co. v. Stentor Electric Mfg. Co. [434]*434313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Under New York conflict rules, New York applies its own statutes of limitations to lawsuits brought within the state regardless of the location of the facts that gave rise to the lawsuit. Martin v. Julius Dierck Equipment Co., 43 N.Y.2d 583, 403 N.Y.S.2d 185, 374 N.E.2d 97 (1978).

The feature of New York’s statutes of limitations with which we are concerned here is the so-called borrowing statute, which provides:

“An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.”

NYCPLR § 202 (McKinney 1972 & Supp. 1988). In other words, an Arizona resident, like plaintiff, will be subject to the Arizona statute of limitations if her cause of action accrued outside of New York and if defendants were subject to personal jurisdiction at the time. Stafford v. International Harvester Co., 668 F.2d 142 (2d Cir.1981).

The meaning of “accrued” as used in the borrowing statute differs from its meaning in the context of statutes of limitation generally.1 For several years, the term has been the subject of considerable conflict-of-laws litigation in New York State and federal courts: should “accrual” be determined according to the traditional “place of injury” test or according to the modern “grouping of contacts” test?

The New York Court of Appeals has not ruled on this question and, indeed, has declined to express its opinion on the issue when presented with an opportunity. Martin v. Julius Dierck Equipment Co., supra. Absent such controlling authority, we are required to “estimate” what the New York Court of Appeals would do. Bernhardt v. Polygraphic Co. of America, Inc., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956).

I conclude that the traditional rule applies. The borrowing statute has remained relatively untouched by the conflict-of-laws reform of Babcock v. Jackson, 12 N.Y.2d 473, 240 N.Y.S.2d 743, 191 N.E.2d 279 (1963), and its progeny. Only one appellate division case has applied the so-called “modern” method to the borrowing statute, Martin v. Julius Dierck Equipment Co., 52 A.D.2d 463, 384 N.Y. S.2d 479 (2d Dep’t 1976); yet, the New York Court of Appeals, affirming the ease on other grounds, explicitly refrained from endorsing the appellate division’s method. Martin, supra, 43 N.Y.2d 583, 403 N.Y. S.2d 185, 374 N.E.2d 97.

On the other hand, endorsing the traditional rule in this context are another appellate division case, Myers v. Dunlop Tire & Rubber Corp., 40 A.D.2d 599, 335 N.Y. S.2d 961 (1st Dep’t 1972), and a preponderance of the federal authority. See, e.g., Sack v. Low, 478 F.2d 360 (2d Cir.1973); Arneil v. Ramsey, 550 F.2d 774 (2d Cir.1977); Bache Halsey Stuart, Inc. v. Namm, 446 F.Supp. 692 (S.D.N.Y.1978); Stafford v. International Harvester Co., supra, 668 F.2d at 150.

In addition to a simple weighing of authorities, the Second Circuit Court of Appeals has noted with approval Judge Mish-ler’s thought that,

“... since the New York intermediate courts were divided on the question and the New York Court of Appeals has avoided ruling on it when directly presented with an opportunity, it was most appropriate for a federal court applying New York law in its diversity jurisdiction to take a conservative position and apply the traditional place of injury test.”

Stafford, supra, 668 F.2d at 149. Also in favor of the traditional rule, another Second Circuit panel has noted:

[435]*435“Nor are we persuaded by arguments characterizing the ‘place of injury’ rule as ‘mechanical.’ The New York courts themselves recognized that the scope of Babcock is not unlimited.
‘What the Babcock case ... taught and what modern day commentators largely agree is that lex loci delictus is unsoundly applied if it is done indiscriminately and without exception. It is still true, however, that lex loci del-ictus is the normal rule.’ ”

Arneil, supra, 550 F.2d at 780, quoting Neumeier v. Kuehner, 31 N.Y.2d 121, 131, 335 N.Y.S.2d 64, 286 N.E.2d 454 (1972).

Applying the traditional rule, the “place of injury” is “the state where the last event necessary to make an actor liable for an alleged tort takes place.” Conklin v. Canadian-Colonial Airways, Inc., 266 N.Y. 244, 248, 194 N.E. 692 (1935); Restatement (First) of Conflict of Laws § 377.

It seems clear that, where slowly developing personal injury claims such as this one are concerned, this “last event” is the fact of plaintiff’s becoming ill. It is becoming ill that supplies the final element of a negligence or strict liability action and entitles plaintiff to sue. The “last event” is not necessarily plaintiff’s discovery of his illness; so to hold would be to confuse the beginning of plaintiff’s cause of action with the beginning of its end, i.e., with the starting of the statute of limitations.

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In re Joint Eastern & Southern District Asbestos Litigation, 721 F. Supp. 433, 1988 U.S. Dist. LEXIS 16897, 1989 WL 119736 (E.D.N.Y. 1988).

721 F. Supp. 433 (In re Joint Eastern & Southern District Asbestos Litigation) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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