Jefferson County, Texas v. Ellarene Farris, Individually and as Personal Representative of the Heirs and Estate of James Farris

Opinion

Opinion issued December 28, 2018

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-17-00493-CV ——————————— JEFFERSON COUNTY, TEXAS, Appellant V. ELLARENE FARRIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF JAMES FARRIS, Appellee

On Appeal from the 11th District Court Harris County, Texas Trial Court Case No. 2005-09580

CONCURRING OPINION

[Judge James] Farris, who was 72 when he died, spent almost his entire legal career[, until retiring in 1996,] in the Jefferson County courthouse[, where he was allegedly exposed to asbestos fibers during a period of remediation] . . . .

.... “He had just given a speech in Idaho in October 2004,” Ellarene Farris said. “He came home and said he couldn’t do it any more. He went into the hospital and nine days later, he was dead.”

She said her husband had no idea he suffered from mesothelioma, a cancer of the lining of the lungs. The symptoms began as an abdominal pain that wouldn’t quit and ended soon after with a struggle to breathe.[1]

I join the majority opinion. However, I write separately to note the

irrationality of the argument of appellant, Jefferson County, Texas, that the

wrongful death and survival action of appellee, Ellarene Farris, against it should be

dismissed for failure to provide “timely” notice in 1997 of a non-existent claim.

The Texas Tort Claims Act waives governmental immunity to suit in certain

specified circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 101.021–.29

(Vernon 2011). And the statute provides:

A governmental unit is entitled to receive notice of a claim against it under this chapter not later than six months after the day that the incident giving rise to the claim occurred. The notice must reasonably describe:

(1) the damage or injury claimed;

(2) the time and place of the incident; and

1 Dan Wallach, Death Suit Blaming Asbestos in Jefferson County Courthouse Could End, BEAUMONT ENTER. (Sept. 12, 2016, 9:45 AM), https://www.beaumontenterprise.com/news/article/Death-suit-blaming-asbestos- in-Jefferson-County-9217178.php (emphasis added) (Exhibit 3 to Jefferson County’s Amended Plea to the Jurisdiction and Amended Motion for Summary Judgment and Amended No Evidence Motion for Summary Judgment).

2 (3) the incident.

Id. § 101.101(a) (Vernon 2011) (emphasis added). Clearly, the statute “does not

require notice of a nonexistent claim.” Hous. Auth. of Beaumont v. Landrio, 269

S.W.3d 735, 745 (Tex. App.—Beaumont 2008, pet. denied) (citing Univ. of Tex.

Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004)).

Judge Farris died of mesothelioma on November 5, 2004, a mere nine days

after exhibiting his first symptoms of illness and nearly eight years after his last

exposure to asbestos in the Jefferson County courthouse and annex in December

1996. His widow, Ellarene, pursuant to the Texas Tort Claims Act, provided

Jefferson County with written notice of her claims against it on April 4, 2005, less

than six months after the emergence of Judge Farris’s first symptoms and,

ultimately terminal, diagnosis. Jefferson County argues that the claims asserted by

Ellarene are barred by governmental immunity because she did not provide notice

of them to Jefferson County within six months of Judge Farris’s final exposure to

asbestos in December 1996, before the existence of any injury or damage. See

TEX. CIV. PRAC. & REM. CODE § 101.101(a).

Based on Jefferson County’s logic, Judge Farris would have been required to

provide it with notice of a premature and speculative claim within six months of

December 1996. See Childs v. Haussecker, 974 S.W.2d 31, 43 (Tex. 1998)

(“Requiring plaintiffs to file suit based only upon their suspicions about causal

3 connections is . . . undesirable in latent occupational disease cases because, among

other things, plaintiffs would be compelled to file premature, speculative claims.”).

But at that time, Judge Farris did not yet have a claim against Jefferson County for

which he could provide notice because it was nearly eight years before he

exhibited any symptom or was diagnosed with mesothelioma, i.e., before any

damage or injury to him had come into existence. See TEX. CIV. PRAC. & REM.

CODE ANN. § 101.101(a). Instead, his claim relating to a malignant

asbestos-related condition arising from his employment with Jefferson County did

not accrue until his diagnosis or manifestation of symptoms of his condition. See

Pustejovsky v. Rapid-Am. Corp., 35 S.W.3d 643, 653 (Tex. 2000); see also Childs,

974 S.W.2d at 33 (accrual of damages in latent-disease cases not until “plaintiff’s

symptoms manifest themselves to a degree or for a duration that would put a

reasonable person on notice”).

Here, as previously explained by the Texas Supreme Court, Judge Farris’s

exposure to asbestos in the Jefferson County courthouse and annex “was only an

incident—one of two—giving rise to [any] claim” he might have against Jefferson

County. Loutzenhiser, 140 S.W.3d at 356. In Loutzenhiser, a mother, individually

and on behalf of her child, brought suit against the University of Texas

Southwestern Medical Center at Dallas, alleging that a chorionic villus sampling

(“CVS”), a prenatal diagnostic test, performed by the Medical Center caused her

4 child to be born with birth defects. Id. at 354. The court held that section

101.101(a)’s six-month-notice period ran from the birth of the child, not the date

that the Medical Center performed the CVS. Id. at 356. The court explained:

The Medical Center argues that “the incident giving rise to the claim” was the CVS, but the CVS was only an incident—one of two—giving rise to the claim. The other such incident, and one equally necessary to the existence of the claim, was [the child’s] live birth. If the notice period ran from the CVS, the statute required notice of a nonexistent claim. []Courts should not read a statute to create such an absurd result.[] We decline to do so here when there is a reasonable alternative construction of the statutory language. Because [the child’s] live birth was an incident giving rise to his claim, and one essential to the existence of the claim, we hold that the six-month period for giving notice began when [the child] was born.[2]

Id. at 356–57 (internal quotations omitted).

2 The baby, until born, legally had no claim because of “the longstanding common law rule . . . that the rights of a fetus [are] contingent on live birth.” Univ. of Tex. Sw. Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 356 (Tex. 2004) (second alteration in original) (internal quotations omitted).

5 As in Loutzenhiser, if the notice period in this case were to begin at the

moment of Judge Farris’s last exposure to asbestos, it would require “notice of a

nonexistent claim.” See id. at 356. Thus, section 101.101(a)’s notice period must

run from the date that Judge Farris’s injuries and damages arose, nine days before

his death. Because Judge Farris had not suffered any damage or injury, and did not

even arguably have a claim against Jefferson County, until nine days before his

death, notice in this case was timely provided.

Terry Jennings Justice

Panel consists of Justices Jennings, Massengale, and Caughey.