Kiser v. A.W. Chesterton Co.

• Court: Supreme Court of Virginia
• Decided: January 10, 2013
• Docket: 120698
• Status: Published

Opinion

Present: Kinser, C.J., Lemons, Millette, Mims, McClanahan, and Powell, JJ., and Lacy, S.J.

PHYLLIS H. KISER, EXECUTRIX OF THE ESTATE OF ORVIN H. KISER, SR., DECEASED OPINION BY v. Record No. 120698 CHIEF JUSTICE CYNTHIA D. KINSER JANUARY 10, 2013 A.W. CHESTERTON CO., ET AL.

UPON A QUESTION OF LAW CERTIFIED BY THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

The United States Court of Appeals for the Third Circuit

entered an order of certification requesting that this Court

exercise jurisdiction pursuant to Article VI, Section 1 of the

Constitution of Virginia and Rule 5:40, and answer the following

question of law:

Whether, under Va. Code § 8.01-249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue [I] at the time of the mesothelioma diagnosis or [II] decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos- related disease.

(Numeral designators added). 1

We hold that when enacting Code § 8.01-249(4), the General

Assembly did not abrogate the common law indivisible cause of

action principle and that a cause of action for personal injury

1 Code § 8.01-249(4) provides that a cause of action for personal injury "resulting from exposure to asbestos or products containing asbestos" accrues "when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician." based on exposure to asbestos accrues upon the first

communication of a diagnosis of an asbestos-related injury or

disease by a physician.

RELEVANT FACTS AND PRIOR PROCEEDINGS

The pertinent facts are not in dispute and are taken

from the opinion in Kiser v. A.W. Chesterton Co., 770

F.Supp.2d 745 (E.D. Pa. 2011), and the certification order

in Kiser v. A.W. Chesterton Co., Rec. No. 11-1986 (3d Cir.

March 26, 2012). Orvin H. Kiser, Sr. worked at a "DuPont"

plant in Waynesboro, Virginia from 1957 to 1985, during

which time he was exposed to asbestos. After being

diagnosed with nonmalignant pleural thickening and

asbestosis in 1988, he filed a timely suit in the United

States District Court for the Western District of Virginia

in 1990 against numerous asbestos manufacturers, sellers,

and distributors, seeking damages for his employment-

related exposure and resulting medical condition. In 2010,

that action was voluntarily dismissed.

In November 2008, Kiser was diagnosed with

mesothelioma, an asbestos-related malignant cancer of the

lung lining. He died the following March. Acting as

executrix of her deceased husband's estate, Phyllis H.

Kiser (the Executrix), filed a wrongful death action in

October 2010 in the United States District Court for the

2 Western District of Virginia against twenty-one defendants,

none of which were parties to the first action. See Kiser,

770 F.Supp.2d at 746-47. The Executrix alleged that

Kiser's exposure to the defendants' products during his

employment at the DuPont plant caused Kiser's development

of mesothelioma and subsequent death. Id. The Judicial

Panel on Multidistrict Litigation transferred the action to

the United States District Court for the Eastern District

of Pennsylvania.

The various defendants filed motions to dismiss,

asserting that the applicable statute of limitations barred

the Executrix' action. Id. at 747. The defendants

asserted that, under the indivisible cause of action rule,

the current action accrued at the time of Kiser's diagnosis

of asbestosis and pleural thickening and that the action

was therefore barred by the two-year statute of limitations

set forth in Code § 8.01-243(A). Id. The Executrix,

however, maintained that Code § 8.01-249(4) "abolished the

indivisible cause of action theory and that a new statute

of limitations was triggered when . . . Kiser was diagnosed

with mesothelioma" in 2008. Id.

Citing Virginia case law that recognized the

indivisible cause of action principle, the district court

held that Code § 8.01-249(4) instituted a discovery rule

3 for the accrual of asbestos-related causes of action but

did not supplant the indivisible cause of action rule with

a "separate disease rule." Id. at 749-50. According to

the district court, "Virginia adheres to the indivisible

cause of action theory and the statute of limitations for

all asbestos-related claims begins to run on the initial

date of diagnosis by a physician of any asbestos-related

disease." Id. at 751. The district court therefore

dismissed the action as barred by the statute of

limitations. Id.

The Executrix appealed to the United States Court of

Appeals for the Third Circuit. In its certification order,

the Third Circuit stated that the timeliness of the

Executrix' cause of action "turn[ed] on an unresolved

question of Virginia law: whether the indivisible cause of

action theory applies to distinct and independent asbestos-

related diseases stemming from the same exposure to

asbestos." While the Third Circuit recognized Virginia's

adherence to the indivisible cause of action rule in

personal injury cases, it noted the absence of a ruling

from this Court regarding the application of that principle

to asbestos-exposure cases after the enactment of Code

§ 8.01-249(4).

4 Rule 5:40(a) requires that a certified question be

"determinative" in "any proceeding pending before the

certifying court." The certified question is determinative

because whether the Executrix' wrongful death action is

time-barred turns on whether the action accrued at the time

of Kiser's asbestosis diagnosis or at the time of his

mesothelioma diagnosis. Accordingly, we accepted the

certified question of law by order entered June 8, 2012.

ANALYSIS

The certified question focuses specifically on Code § 8.01-

249(4) and asks when, pursuant to that statute, "a plaintiff's

cause of action for damages due to latent mesothelioma is deemed

to accrue." To answer that question and to understand the scope

and purpose of Code § 8.01-249(4), it is instructive to review

first the law in effect in 1985 when the General Assembly

enacted subsection 4. Prior to 1985, two distinct, relevant

principles existed in the Commonwealth with respect to personal

injury actions based on exposure to asbestos. First, the

accrual of a cause of action for such injury was governed by

Code § 8.01-230, which at that time provided: "In every action

for which a limitation period is prescribed, the cause of action

shall be deemed to accrue and the prescribed limitation period

shall begin to run from the date the injury is sustained in the

5 case of injury to the person." 2 Former Code § 8.01-230 (Repl.

vol. 1984) (emphasis added). Construing the "statutory word

'injury' to mean positive, physical or mental hurt to the

claimant, not legal wrong to him," we tied the running of the

statute of limitations "to the fact of harm to the plaintiff,

without which no cause of action would come into existence." 3

Locke v. Johns-Manville Corp., 221 Va. 951, 957-58, 275 S.E.2d

900, 905 (1981). Because a cause of action does not arise until

an injury to a plaintiff can be shown, see Louisville &

Nashville Railroad Co. v. Saltzer, 151 Va. 165, 170-71, 144 S.E.

456, 457 (1928), the relevant question for purposes of the

statute of limitations was: "When was the plaintiff hurt?"

Locke, 221 Va. at 958, 275 S.E.2d at 905.

2 In 1996, the General Assembly changed the phrase "cause of action" to the phrase "right of action." See 1996 Acts ch. 328. However, Code § 8.01-249 continues to employ the phrase "cause of action." The phrases "cause of action" and "right of action" are not synonymous. See Van Dam v. Gay, 280 Va. 457, 460, 699 S.E.2d 480, 481 (2010). When interpreting and applying a statute, we "assume that the General Assembly chose, with care, the words it used in enacting the statute, and we are bound by those words." Halifax Corp. v. First Union Nat'l Bank, 262 Va. 91, 100, 546 S.E.2d 696, 702 (2001). 3 The essential elements of a good cause of action, whether based on an alleged breach of contract or on a tortious act, are a legal obligation of a defendant to the plaintiff, a violation or breach of that right or duty, and a consequential injury or damage to the plaintiff. In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him. Caudill v. Wise Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969).

6 In a cause of action for exposure to asbestos resulting in

mesothelioma, the answer to that question depended on competent

medical evidence pinpointing the precise date the cancer first

existed, which would be the first date it was capable of causing

injury. Id. at 959, 275 S.E.2d at 905. That determination,

however, was not tantamount to employing a "discovery rule,

which triggers the running of the statute only when the injury

is discovered or should have been discovered in the exercise of

reasonable diligence." Id. As the Court recognized, the

adoption of such a rule was a decision for the General Assembly

to make. Id. at 959, 275 S.E.2d at 905-06.

In 1985, the General Assembly did just that by adding

subsection 4 to Code § 8.01-249, which contains exceptions to

the accrual rule set forth in Code § 8.01-230 for certain causes

of action. 1985 Acts ch. 459. Code § 8.01-249(4) states:

The cause of action in the actions herein listed shall be deemed to accrue as follows:

. . . .

4. In actions for injury to the person resulting from exposure to asbestos or products containing asbestos, when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician. However, no such action may be brought more than two years after the death of such person[.]

7 With the enactment of subsection 4, the question asked in Locke,

when was a plaintiff hurt by exposure to asbestos, was no longer

relevant to determining the accrual date of that particular

cause of action. Instead, the cause of action accrued, and thus

the statute of limitations began to run, when a physician first

communicated a diagnosis of one of the specified diseases or of

another "disabling asbestos-related injury or disease" to a

plaintiff. Id.

The second pertinent principle that existed in 1985 when

the General Assembly added subsection 4 to Code § 8.01-249 was

the common law indivisible cause of action rule. "[A] cause of

action is a set of operative facts which, under the substantive

law, may give rise to a right of action." Roller v. Basic

Constr. Co., 238 Va. 321, 327, 384 S.E.2d 323, 326 (1989); see

also Rule 1:6(a). A right of action "is the remedial right

accorded [a] person to enforce a cause of action [and] arises

only when [a] person's rights are infringed." Roller, 238 Va.

at 327, 384 S.E.2d at 326. Consequently, a right of action

cannot arise until there is a cause of action, Caudill v. Wise

Rambler, Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969), and

the two do not necessarily arise simultaneously. Van Dam v.

Gay, 280 Va. 457, 460, 699 S.E.2d 480, 481 (2010). A single

cause of action may give rise to separate rights of action that

accrue at different times. First Virginia Bank-Colonial v.

8 Baker, 225 Va. 72, 81, 301 S.E.2d 8, 13 (1983); see also

McKinney v. Virginia Surgical Assocs., P.C., 284 Va. 455, 460,

732 S.E.2d 27, 29 (2012).

Although multiple rights of action may arise under a given

cause of action, a wrongful act generally gives rise to only a

single indivisible cause of action. As the Supreme Court of the

United States explained in Baltimore Steamship Co. v. Phillips,

274 U.S. 316 (1927),

[a] cause of action does not consist of facts, but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. The mere multiplication of grounds of negligence alleged as causing the same injury does not result in multiplying the causes of action. The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear. The thing, therefore, which in contemplation of law as its cause, becomes a ground for action, is not the group of facts alleged in the declaration, bill, or indictment, but the result of these is a legal wrong, the existence of which, if true, they conclusively evince.

Id. at 321 (internal quotation marks omitted) (first emphasis

added). When a plaintiff "suffer[s] but one actionable wrong

[or] a single wrongful invasion of a single primary right [such

as] the right of bodily safety," the plaintiff is "entitled to

but one recovery." Id.

9 This Court has long applied this common law principle. In

Street v. Consumers Mining Corp., 185 Va. 561, 39 S.E.2d 271

(1946), we stated:

[A]s a general rule, where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. The act itself is regarded as the ground of the action and is not legally severable from its consequence. The statute then begins to run, and not from the time of the damage or discovery of the injury.

Id. at 566, 39 S.E.2d at 272 (internal quotation marks omitted).

Thus, a statute of limitations usually commences to run

when injury is incurred as a result of a wrongful act. By

enacting Code § 8.01-249(4), however, the General Assembly

carved out an exception to this principle for asbestos exposure

causes of action. Nevertheless, when the statute of limitations

begins to run, it runs as to all damages caused by "the wrongful

or negligent act of another," even if the individual suffers

additional damages at a later date. See id.; Lo v. Burke, 249

Va. 311, 317, 455 S.E.2d 9, 13 (1995) ("[T]he statute of

limitations begins to run when any injury, though slight, is

sustained as the consequence of an alleged wrong, despite the

fact that greater damage from the same wrong may be sustained at

10 a later date."); Starnes v. Cayouette, 244 Va. 202, 206, 419

S.E.2d 669, 671 (1992) ("[W]hen a tort causes a contemporaneous

personal injury, the fact that the victim suffered greater

physical or mental hurt from that tort at a later date does not

defer the date of accrual of the cause of action.").

If the "act itself is regarded as the ground of the

action," and thus cannot be "legally severable from its

consequence," Street, 185 Va. at 566, 39 S.E.2d at 272, a single

wrongful act may not give rise to two independent causes of

action. See Shortt v. Hudson Supply & Equip. Co., 191 Va. 306,

310, 60 S.E.2d 900, 902 (1950) (A plaintiff injured in an

automobile accident "had but a single claim – an indivisible

cause of action for damages for his personal injuries arising

out of the collision."); Carter v. Hinkle, 189 Va. 1, 4, 52

S.E.2d 135, 136 (1949) ("[A]s a general rule a single cause of

action cannot be split into several claims and separate actions

maintained thereon."). The indivisible cause of action rule

governs how many causes of action arise from a single wrongful

act that violates a single right of a plaintiff; the rule

applies to actions based on injury to the person regardless of

how the person was injured. See, e.g., Baltimore S.S. Co., 274

U.S. at 321-22 (plaintiff struck by falling beam on ship);

Starnes, 244 Va. at 204-06, 419 S.E.2d at 670-71 (plaintiff

victim of sexual assault); Shortt, 191 Va. at 309-10, 60 S.E.2d

11 at 902-03 (plaintiff hurt in vehicle accident). "The number and

variety of facts alleged do not establish more than one cause of

action so long as their result . . . is the violation of but one

right by a single legal wrong." 4 Baltimore S.S. Co., 274 U.S. at

321.

There is one notable exception to this rule: a single

wrongful act may give rise to separate causes of action if that

wrongful act violates distinct rights. In Carter, the injured

plaintiff filed an action for personal injuries after earlier

filing an action for property damage caused by an automobile

accident. 189 Va. at 3, 52 S.E.2d at 136. Recognizing the

general rule, the Court nevertheless noted that "the history of

the common law shows that the distinction between torts to the

person and torts to property has always obtained." Id. at 4-6,

52 S.E.2d at 136-37 (internal quotation marks omitted). The

Court stated that two actions could be maintained when two

distinct rights, the "right of personal security and the right

of property," were invaded by a single wrongful act: " 'If two

4 Certainly, if there are separate occurrences of wrongful conduct causing new injuries, separate causes of action may arise. See Hampton Rds. Sanitation Dist. v. McDonnell, 234 Va. 235, 239, 360 S.E.2d 841, 843 (1987). As the Third Circuit stated, however, the issue in this case is whether the indivisible cause of action rule applies "to distinct and independent asbestos-related diseases stemming from the same exposure to asbestos" in light of Code § 8.01-249(4). (Emphasis added.) The Executrix' contention throughout this case has been that Code § 8.01-249(4) creates separate causes of action because the injury, not the harmful act, is discrete.

12 separate and distinct primary rights could be invaded by one and

the same wrong, or if the single primary right should be invaded

by two distinct and separate legal wrongs, in either case two

causes of action would exist.' " Id. at 6-7, 52 S.E.2d at 138

(quoting John N. Pomeroy, Pomeroy's Code Remedies § 350 (4th ed.

1904)).

Although we have never addressed the indivisible cause of

action principle in regard to asbestos exposure causes of action

since the enactment of Code § 8.01-249(4), the principle

nevertheless controls. That is, the Executrix' cause of action

for Kiser's wrongful death resulting from exposure to asbestos

accrued at the time of his diagnosis for asbestosis, see Code

§ 8.01-249(4), unless, as the Executrix argues, the enactment of

subsection 4 of Code § 8.01-249 not only established a discovery

accrual rule but also abrogated the common law. When it enacted

§ 8.01-249(4), the General Assembly is presumed to have known of

the common law indivisible cause of action principle and its

applicability to actions for injury to the person, including

those based on exposure to asbestos. See Andrews v.

Commonwealth, 280 Va. 231, 286, 699 S.E.2d 237, 269 (2010). The

Court must, therefore, read Code § 8.01-249(4) "in conjunction

with the common law, giving effect to both 'unless it clearly

appears from express language or by necessary implication that

the purpose of [Code § 8.01-249(4)] was to change the common

13 law.' " Jenkins v. Mehra, 281 Va. 37, 44, 704 S.E.2d 577, 581

(2011) (quoting Isbell v. Commercial Inv. Assocs., Inc., 273 Va.

605, 614, 644 S.E.2d 72, 75-76 (2007)).

The Court presumes that no change to the common law was

intended, and abrogation only occurs "when the legislative

intent to do so is plainly manifested." Id. (internal quotation

marks omitted). And, "even where a statute's purpose is to

abrogate the common law, such statute is 'to be strictly

construed and not to be enlarged in [its] operation by

construction beyond [its] express terms.' " Id. at 45, 704

S.E.2d at 581 (quoting Isbell, 273 Va. at 613, 644 S.E.2d at 75)

(alterations in original).

We begin with the language of the statute at issue. Code

§ 8.01-249(4) states:

The cause of action . . . . [i]n actions for injury to the person resulting from exposure to asbestos or products containing asbestos [shall be deemed to accrue] when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician.

This language is plain and unambiguous. 5 "In construing a

statute, we must apply its plain meaning, and 'we are not free

5 Because the Executrix does not assert that Code § 8.01- 249(4) is ambiguous, we will not inquire, as she nevertheless requests, as to "what was the mischief and defect against which the previous law did not provide" prior to the 1985 amendment. City of Richmond v. Sutherland, 114 Va. 688, 691, 77 S.E. 470,

14 to add [to] language, nor to ignore language, contained in

statutes.' " BBF, Inc. v. Alstom Power, Inc., 274 Va. 326, 331,

645 S.E.2d 467, 469 (2007) (quoting SIGNAL Corp. v. Keane Fed.

Sys., Inc., 265 Va. 38, 46, 574 S.E.2d 253, 257 (2003)).

" '[When] the legislature has used words of a plain and definite

import the courts cannot put upon them a construction which

amounts to holding the legislature did not mean what it has

actually expressed.' " Barr v. Town & Country Props., 240 Va.

292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall,

161 Va. 924, 930, 172 S.E. 445, 447 (1934)).

The particular "cause of action" addressed in subsection 4

is "for injury to the person resulting from exposure to asbestos

or products containing asbestos." Code § 8.01-249(4). Such

causes of action accrue when the diagnosis of any of the

specified diseases or some "other disabling asbestos-related

injury or disease" is communicated to the patient or his agent

by a physician. Id. The other subsections within Code § 8.01-

249 have this same grammatical structure. Each begins by

identifying a specific cause of action and then defining the

particular point at which that action accrues. In every listed

cause of action but one, the accrual of the cause of action is

471 (1913). This Court does not look to legislative intent when the language of a statute is clear and unambiguous. Eberhardt v. Fairfax Cnty. Emps. Ret. Sys. Bd. of Trustees, 283 Va. 190, 194, 721 S.E.2d 524, 526 (2012).

15 demarcated by a prepositional phrase starting with the word

"when." See, e.g., Code § 8.01-249(5) ("The cause of action

. . . . [i]n actions for contribution or for indemnification

[shall be deemed to accrue] when the contributee or the

indemnitee has paid or discharged the obligation.").

The Executrix contends, however, that the "separate listing

of the different asbestos-related diseases clearly and plainly

evinces the General Assembly's intent to treat each distinct

disease as a separate cause of action." Under this reading, the

prepositional phrase in Code § 8.01-249(4) that contains the

listed diseases would not modify the verb "accrue" to specify

the point at which the cause of action accrues, but actually

would create separate causes of action. According to the

Executrix, the cause of action specified in Code § 8.01-249(4)

is not a "cause of action . . . . for injury to the person

resulting from exposure to asbestos or products containing

asbestos," but is a "cause of action [for] asbestosis,

interstitial fibrosis, mesothelioma, or other disabling

asbestos-related injury or disease." This interpretation

manifestly requires a re-writing of the statute.

By listing separate diseases in the disjunctive, the

General Assembly merely indicated that the diagnosis of any one

disease triggers the statute's application, a perfectly sensible

decision given the commonality of the listed diseases in

16 asbestos exposure cases. 6 Moreover, whatever its purpose, the

itemization of distinct diseases does not alter the opening

language of the statute, which makes clear that it addresses the

accrual of "[t]he cause of action [i]n actions for injury to the

person resulting from exposure to asbestos or products

containing asbestos." Code § 8.01-249(4). In other words, the

General Assembly did not create a separate cause of action for

each asbestos-related injury or disease.

The Executrix also relies on the dissenting opinion in

Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986)

(Swygert, J., dissenting). But there, Judge Swygert argued that

separate diseases caused by asbestos exposure "represent rights

of action which mature independently and trigger statutes of

limitations separately," while the cause of action was "the

exposure to asbestos." Id. at 1209 (Swygert, J., dissenting)

(emphasis added). Judge Swygert believed this outcome was

consistent with "holding that the 'cause of action' itself is

unitary and indivisible." Id. The notion that a single cause

6 Asbestosis is the most common asbestos-related disease, and mesothelioma is the most fatal. See Peerman v. Georgia-Pac. Corp., 35 F.3d 284, 285 (7th Cir. 1994) (citing Gray's Attorney's Textbook of Medicine ¶ 205C.11(1) (3d ed. 1980)); Hansen v. Johns-Manville Prods. Corp., 734 F.2d 1036, 1039 n.2 (5th Cir. 1984). In addition, the Executrix acknowledges that interstitial fibrosis and asbestosis are the same disease and that the General Assembly merely included interstitial fibrosis as an apposition to further identify asbestosis. That explanation undermines the significance that the Executrix places on the separate listing of diseases.

17 of action could give rise to multiple rights of action is in

accord with Virginia case law. See, e.g., McKinney, 284 Va. at

460, 732 S.E.2d at 29. But adopting that analysis in this case

would violate the plain language of Code § 8.01-249(4), which

refers only to causes of action.

Several other factors also support our holding that the

General Assembly, by enacting Code § 8.01-249(4), created only a

discovery accrual rule for asbestos exposure actions and did not

abrogate the common law indivisible cause of action principle

for such actions. The first is Code § 8.01-249(4)'s location in

the Code. See Campbell Cnty. v. Royal, 283 Va. 4, 24, 720

S.E.2d 90, 100 (2012) (noting "the larger legislative context in

which the General Assembly placed" a statute). Code § 8.01-249,

as explained above, is an exception to the general rule set

forth in Code § 8.01-230 for accrual of causes of action. Both

Code §§ 8.01-230 and -249 are found in Chapter 4 of Title 8.01,

which Chapter is titled "Limitations of Actions." Within

Chapter 4, Code § 8.01-249 is found in Article 3 addressing

"Personal Actions Generally." Chapter 3 of Title 8.01, on the

other hand, is titled "Actions" and contains multiple Articles

establishing particular causes of action. Thus, both Code

§§ 8.01-230 and -249 limit causes of action by specifying when

the actions accrue, but the actions themselves exist by virtue

of other statutory provisions.

18 In amending Code § 8.01-249 throughout the years, the

General Assembly has reaffirmed through the amendments'

enactment clauses what is evident from the statute's plain

language and location in the Code: that the provision deals only

with the accrual of causes of action and does not create the

causes of action. An enactment clause "is part of the body of

the act which states the precise action taken by the

legislature, thereby establishing the jurisdiction and the

authenticity of the act." Gilmore v. Landsidle, 252 Va. 388,

394, 478 S.E.2d 307, 311 (1996). The enactment clause "also

secures uniformity of identification, thus preventing

inadvertence, possible mistake, and fraud." Id. at 395, 478

S.E.2d at 311. "[T]his Court may rely on the [enactment] clause

to determine the precise content of legislation." Id.

In enacting subsection 4, the General Assembly stated that

it was "[a]n Act to amend and reenact § 8.01-249 . . . relating

to accrual of actions for personal injuries resulting from

asbestos or asbestos products." 1985 Acts ch. 459. Thus, the

"precise action" taken by the legislature in enacting subsection

4 was to identify when an already existing cause of action

accrues, and not to create a cause of action for each disease

caused by asbestos exposure. See Code § 8.01-249(4) Revisers'

Note ("While [the discovery rule contained in the section]

represents an exception to the general rule embodied in § 8.01-

19 230 . . . § 8.01-249 follows Virginia law."); Simon v. Forer,

265 Va. 483, 490-91, 578 S.E.2d 792, 796 (2003) (relying on

Revisers' Note in interpreting meaning of statute).

Similarly, every other enactment clause for amendments to

Code § 8.01-249 has made clear that the provision deals only

with the accrual of existing causes of action, and not their

creation. See 1966 Acts ch. 118 ("[a]n Act to amend and reenact

§ 8-13 . . . relating to limitations of personal actions

generally"); 1986 Acts ch. 601 ("[a]n Act to amend and reenact

§ 8.01-249 . . . relating to accrual of causes of action"); 1991

Acts ch. 674 ("[a]n Act to amend and reenact § 8.01-249 . . .

relating to accrual of actions"); 1992 Acts ch. 817 ("[a]n Act

to amend and reenact § 8.01-249 . . . relating to when a cause

of action is deemed to accrue in designated personal actions");

1993 Acts ch. 523 ("[a]n Act to amend and reenact § 8.01-249

. . . relating to accrual of civil actions"); 1997 Acts ch. 565

("[a]n Act to amend and reenact § 8.01-249 . . . relating to

accrual of actions"); 2005 Acts ch. 213 ("[a]n Act to amend and

reenact § 8.01-249 . . . relating to accrual of causes of

action"). Thus, throughout the history of Code § 8.01-249, the

General Assembly clearly stated its intent that this statute

deals only with the accrual of causes of action.

In sum, nothing in Code § 8.01-249(4), including the

itemization of separate asbestos-related diseases, constitutes

20 "express language or . . . necessary implication" that the

General Assembly intended Code § 8.01-249(4) to abrogate the

common law indivisible cause of action rule for asbestos

exposure actions. See Jenkins, 281 Va. at 44, 704 S.E.2d at 581

(internal quotation marks omitted). Giving effect to both the

common law and Code § 8.01-249(4), we hold that by enacting Code

§ 8.01-249(4), the General Assembly instituted a discovery rule

for the accrual of actions based on exposure to asbestos. It

did not, however, abrogate the indivisible cause of action

principle by creating a "separate disease rule" for such causes

of action arising from a single wrongful act that violates a

single right of a plaintiff.

CONCLUSION

We are well aware of the quandary confronting a plaintiff

who has been diagnosed with an asbestos-related disease in

deciding when to file an action under the current statutory and

common law regime. We are also aware that numerous

jurisdictions, in noting the quandary, have permitted separate

causes of action for malignant and non-malignant asbestos-

related diseases. 7 But we have repeatedly said that, in

7 Many of the decisions from other jurisdictions on which the Executrix relies make clear, either expressly or implicitly, that the accrual of causes of action is determined by the judiciary in those jurisdictions. See, e.g., Sopha v. Owens- Corning Fiberglas Corp., 601 N.W.2d 627, 632 (Wis. 1999); Pierce v. Johns-Manville Sales Corp., 464 A.2d 1020, 1025-27 (Md.

21 Virginia, remedying such policy-related problems is the role of

the General Assembly, not ours. 8 See, e.g., Shipman v. Kruck,

267 Va. 495, 503, 593 S.E.2d 319, 323 (2004) (refusing to adopt

a discovery rule by judicial decision and noting that it is "the

role of the General Assembly, not the judiciary, to change a

rule of law that has been relied upon by bench and bar for so

long"). The indivisible cause of action rule has existed in the

Commonwealth for decades, and a decision that causes of action

for asbestos exposure are not subject to the rule must come from

the General Assembly, not the Court.

The certified question of law asks:

Whether, under Va. Code § 8.01-249(4), a plaintiff's cause of action for damages due to latent mesothelioma is deemed to accrue [I] at the time of the mesothelioma diagnosis or [II] decades earlier, when the plaintiff was diagnosed with an independent, non-malignant asbestos- related disease.

1983). Obviously, the judiciary does not do so in Virginia. 8 In fact, several statutes demonstrate that the General Assembly is aware of the difficulties in litigating asbestos exposure causes of action. See Code § 8.01-277(B) (permitting dismissal of actions in cases where process is not served within one year, but excepting asbestos cases); Code § 8.01-335(D) (permitting cases where process is not served within one year to be struck from docket, but excepting asbestos cases). These statutes further demonstrate that the General Assembly did not intend to abrogate the common law when it enacted subsection 4 of Code § 8.01-249. Otherwise, these exceptions for asbestos exposure actions would not be needed.

22 (Numeral designators added). For the reasons stated, we answer

that question in the negative with respect to alternative [I]

and in the affirmative with respect to alternative [II].

Certified question alternative [I] answered in the negative.

Certified question alternative [II] answered in the affirmative.

JUSTICE MILLETTE, with whom JUSTICE MIMS joins, dissenting.

Today, the majority holds that "by enacting Code § 8.01-

249(4), the General Assembly instituted a discovery rule for the

accrual of actions based on exposure to asbestos. It did not,

however, abrogate the indivisible cause of action principle by

creating a 'separate disease rule.' " I agree with my

colleagues that Code § 8.01-249(4) has but one purpose – to

create a discovery rule. Because I do not agree that this

conclusion mandates the outcome of today's opinion, however, I

respectfully dissent.

As the majority demonstrates, the statute in question

indeed creates a discovery rule. That is, it relates to the

proper commencement of the statute of limitations. It provides

no guidance whatsoever as to the question posed to us by the

Third Circuit regarding when the cause of action is to accrue.

Likewise, it offers no comment on the application of the

indivisible cause of action rule in asbestos cases. To

23 interpret it to address either would be to embrace more than one

object in a single law in violation of Article IV, § 12 of the

Virginia Constitution.

Thus, we are left to answer the question posed by the Third

Circuit without guidance from Code § 8.01-249(4). The majority

holds that addressing whether separate causes of action arise in

asbestos cases is a "policy-related problem[]" that is properly

within the province of the General Assembly. To support this

claim, the majority cites Shipman v. Kruck, 267 Va. 495, 503,

593 S.E.2d 319, 323 (2004). Shipman, while observing that it is

within the authority of the General Assembly and not the Court

to create a discovery rule, does not stand for the proposition

that every issue implicating policy is the sole domain of the

legislature. Courts must respect the line between judicial

interpretation and legislating from the bench. The distinction

here, however, is clear: discovery rules apply to the

commencement of the statute of limitations, an issue that is

fundamentally statutory in nature and properly sits with the

legislature. The accrual of causes of action has long been

governed by common law, see, e.g., Caudill v. Wise Rambler,

Inc., 210 Va. 11, 13, 168 S.E.2d 257, 259 (1969); Locke v.

Johns-Manville Corp., 221 Va. 951, 958, 275 S.E.2d 900, 905

(1981), and clarifying or refining the application of an

24 existing common law principle fits within the province and duty

of this Court.

We should therefore turn to the common law governing when a

cause of action accrues. The terms cause of action and right of

action are often confused in legal writing and, as the majority

points out, they are not synonymous. We have previously held

that a cause of action accrues when the harm occurs, and not

before:

The essential elements of a good cause of action, whether based on an alleged breach of contract or on a tortious act, are a legal obligation of a defendant to the plaintiff, a violation or breach of that right or duty, and a consequential injury or damage to the plaintiff. In the absence of injury or damage to a plaintiff or his property, he has no cause of action and no right of action can accrue to him.

Caudill, 210 Va. at 13, 168 S.E.2d at 259. In Locke, 221 Va. at

958, 275 S.E.2d at 905, we held that when medical evidence

showed that a cancerous mesothelioma tumor began its development

not contemporaneously with the asbestos exposure but some time

later, the development of the cancer and not the exposure

triggered the accrual of the cause of action. The relevant

question, we reiterated, was, "When was the plaintiff hurt?"

Id.

This rule as to the accrual of the cause of action was not

modified by Code § 8.01-249. This Code section simply lists

discovery rules applicable to the commencement of the running of

25 the statute of limitations for the specific categories of claims

listed in the statute. The creation of such a discovery rule

for asbestos cases negates the need for medical testimony to

identify when the cancer likely developed in cases such as

Locke, but it has no effect on the accrual of the cause of

action. Rather, it affects the accrual of the right of action.

The general rule for accrual of a right of action in

Virginia, set forth in Code § 8.01-230, reads in pertinent part

as follows:

In every action for which a limitation period is prescribed, the right of action shall be deemed to accrue and the prescribed limitation period shall begin to run from the date the injury is sustained in the case of injury to the person . . . and not when the resulting damage is discovered, except . . . where otherwise provided [in another] statute.

Id. This statute was amended from an earlier version that

erroneously used the term "cause of action" as opposed to "right

of action." See Code § 8.01-230 (1984 Repl. Vol.). The same

linguistic change should have been made to Code § 8.01-249, an

example of a statute "otherwise provid[ing]" a specific time of

accrual. In the absence of the change, the Code section is

internally incongruous: a "cause" of action does not have a

statute of limitations and likewise is not subject to a

discovery rule. A cause of action is substantive in nature and

always arises upon the harm to the plaintiff. Locke, 221 Va. at

958, 275 S.E.2d at 905. A "right" of action, to which Code

26 § 8.01-249 is clearly intended to refer, is the legal ability to

seek recourse for that cause of action, and is subject to

discovery rules and statutes of limitations. See Keister v.

Keister, 123 Va. 157, 160, 96 S.E. 315, 316 (1918).

There is no statutory law or common law rule in Virginia

requiring that distinct asbestos-related diseases constitute the

same cause of action. 1 When, as in the case of asbestosis and

mesothelioma, there are two distinct and unrelated harms that

accrue at different times, the plaintiff may have two separate

causes of action.

A considerable portion of the majority opinion addresses

the indivisible cause of action rule. A common articulation of

this principle is:

where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date.

Street v. Consumers Mining Corp., 185 Va. 561, 566, 39 S.E.2d

271, 272 (1946) (internal quotation marks omitted). This

principle in fact addresses not the accrual of the cause of

1 The Joyce decisions, Joyce v. A.C. & S., Inc., 591 F.Supp. 449 (W.D. Va. 1984) and the Fourth Circuit case affirming the holding, Joyce v. A.C. & S., Inc., 785 F.2d 1200 (4th Cir. 1986), are federal interpretations of Virginia law and do not bind this Court.

27 action but rather the accrual of a right of action, the

commencement of the statute of limitations, and the possibility

of later claims being barred by issue or claim preclusion. 2 The

indivisible cause of action rule is a principle of res judicata

or estoppel (issue or claim preclusion), and does not influence

whether the substantive cause of action exists. See Wilson v.

Johns-Manville Sales Corp., 684 F.2d 111, 117-18 (D.C. Cir.

1982).

The law may indeed provide other bars to subsequent actions

arising from the same act or set of acts, depending upon the

details of the record and the nature of the previous action.

That is a different question than whether the cause of action

exists. Under Virginia law, it does. The simplest instance can

be seen in the case of an individual who was diagnosed with mild

asbestosis and chose not to bring suit. The mere diagnosis of

asbestosis should not serve as a bar to a later suit for

mesothelioma, upon its discovery. See id. If the second harm

has not yet occurred upon the accrual of the first right of

action, then the plaintiff cannot possibly bring them in the

same action. "A disease like this cancer must first exist

before it is capable of causing injury. To hold otherwise would

2 Additionally, this principle has been invoked in cases where the additional damages were cumulative in nature and relate to the initial harm, which is not the issue before the Court.

28 result in the inequity of barring the mesothelioma plaintiff's

cause of action before he sustains injury." Locke, 221 Va. at

959, 275 S.E.2d at 905. When the harm at issue is cancer to the

lining of the lungs, it is illogical to say that the cause of

action accrues before the cancer has even developed. Since the

discovery rule under Code § 8.01-249(4) applies generally to

asbestos-related injuries, it applies to mesothelioma victims

regardless of a previous diagnosis of asbestosis.

Further bolstering the argument for two causes of action is

the fact that, in multiple-exposure cases such as this, we do

not know at the onset of the suit whether the relevant exposures

that caused the two harms arose from the same act or set of

acts. 3 To so conclude would be to hold as a matter of law that

multiple exposures to different asbestos products must always

constitute the same singular "act." In the case before us, we

have potentially distinct causal exposures (given the

multiplicity of defendants) and two distinct harms, linked only

by the fact that the harms were caused by inhalation of the same

3 The majority quotes a portion of the Third Circuit's memorandum of certification that refers to the two diseases as "stemming from the same exposure to asbestos." The same document acknowledges that Kiser's original asbestosis suit contained eighteen asbestos manufacturers, sellers, and distributors, and that the mesothelioma suit at bar originally contained twenty different additional defendants. Although these exposures may have occurred while working for the same primary employer, this appears from our position to be a multiple-exposure case.

29 substance. It is reasonable to find two distinct causes of

action.

Additionally, given that the first cause of action for

asbestosis injury was voluntarily dismissed in the instant case,

the effect of issue and claim preclusion mechanisms is dependent

on the record and far beyond the scope of the certified question

before the Court today. The ample attention given by the

majority to the indivisible cause of action rule is premature.

Our holding in Locke that the cause of action accrues at

the time of the harm rather than at the time of exposure

logically makes Virginia a "two-disease rule" state, in the

common shorthand of asbestos litigation. Beyond Locke, however,

there are a multitude of reasons why the Commonwealth should

recognize a two-disease rule in asbestos cases.

First, asbestosis and mesothelioma are medically discrete

and independent diseases. They develop in different parts of

the body and follow dramatically different courses. Asbestosis

is a non-malignant disease of the lung, also known as

interstitial fibrosis. 5 Richard M. Patterson, Lawyers' Medical

Cyclopedia of Personal Injuries & Allied Specialties § 33.54, at

33-83 (6th ed. repl. ed. 2011). The disease gradually worsens,

particularly with continued exposure to asbestos, generally

resulting in decreased pulmonary function and increased

difficulty breathing over time. Id. at 33-83 through 33-84.

30 Mesothelioma is a malignant cancer of the pleura (lining) of the

lung or, more rarely, of the peritoneum (abdominal cavity). Id.

at 33-85 through 33-86. It has a significant latency period,

the exact time period of which is disputed by experts, but

appears from current medical knowledge to average approximately

thirty-five years. Id. at 33-85. Mesothelioma has been

documented not only in asbestos workers but also in individuals

who have had low-level exposure through, for example, living in

asbestos mining towns or being married to an asbestos worker who

carried fibers home on his or her clothes. Id. at 33-85 through

33-86. The disease is virtually always fatal within two years

of diagnosis. Id. at 33-86.

Virginia courts, like many jurisdictions, acknowledge these

distinctions by treating the diseases differently at trial. We

have required plaintiffs in asbestosis cases to show repeated or

prolonged exposure to asbestos. We have cited with approval a

Georgia case that stated that asbestosis, "by definition,

results only from an overexposure to asbestos." Norfolk S. Ry.

v. Rogers, 270 Va. 468, 485, 621 S.E.2d 59, 69 (2005) (internal

quotation marks and citation omitted). See also Norfolk & W.

Ry. v. Ayers, 538 U.S. 135, 155-56 (2003) ("Asbestosis is a

chronic, painful and concrete reminder that [a plaintiff] has

been injuriously exposed to a substantial amount of asbestos.")

31 (internal quotation marks and emphasis omitted) (emphasis

added).

On the other hand, we have recognized that a lesser degree

of exposure may be sufficient to prove causation in mesothelioma

cases. We considered a case in which a shipyard pipe-coverer

developed mesothelioma and died after cutting and installing

insulation products which contained asbestos, a process that

created visible dust which he inhaled. Owens-Corning Fiberglas

Corp. v. Watson, 243 Va. 128, 143-44, 413 S.E.2d 630, 639

(1992). The decedent had not been able to identify the brand or

brands of asbestos products that he worked with prior to his

death. We nonetheless determined that the circumstantial

evidence that an asbestos product known as "Kaylo," manufactured

by the defendant, was a prominently used product on the ship,

combined with "medical evidence reveal[ing] that very limited

exposure to asbestos fibers can cause mesothelioma," provided

sufficient evidence to support a jury verdict against the

manufacturer. Id. at 143, 413 S.E.2d at 639.

"One of the principal tests in determining whether a demand

is single and entire, or whether it is several, so as to give

rise to more than one cause of action, is the identity of facts

necessary to maintain the action. If the same evidence will

support both actions there is but one cause of action." Jones

v. Morris Plan Bank, 168 Va. 284, 290-91, 191 S.E. 608, 609-10

32 (1937). Here, the evidence set forth for asbestosis and

mesothelioma claims, although containing some overlap, are

markedly different.

Indeed, the only certain connection that these two diseases

have is that they both stem from exposure to asbestos. In the

case at bar, the defendants are entirely distinct from those in

the original asbestosis suit. Given our current state of

medical knowledge, however, it is not even possible to determine

with certainty which disease stemmed from what asbestos

exposure(s). See Ford Motor Co. v. Boomer, 285 Va. ___, ___,

___ S.E.2d ___, ___ (2013) (this day decided).

Not all victims of asbestosis develop mesothelioma, but

given their generally substantial periods of asbestos exposure,

some do. And this underscores the fundamental unfairness of

deeming only a single cause of action to exist for all asbestos

exposure cases: while an individual who developed mesothelioma

from only minimal asbestos exposure not sufficient to develop

asbestosis has a recourse in the law for his or her mesothelioma

diagnosis because that individual has not suffered a previous

injury, an individual who first developed asbestosis due to his

or her longer exposure to asbestos can recover for the effects

of his non-malignant asbestosis but has no recourse in the law

for his second, likely fatal disease.

33 As explained by the majority, the fundamental purpose of

the subsections of Code § 8.01-249 is to create discovery rules.

Generally, the intent of a discovery rule is to expand

plaintiffs' access to legal remedies by deferring the statute of

limitations to permit plaintiffs a fair chance to file suit when

the onset of the harm would have been previously unknown to

them: that is, the purpose is to make the operation of the

statute of limitations more appropriately fit the disease in the

interest of fairness.

The effect of today's holding, however, is to contract that

right to remedies for mesothelioma plaintiffs when the victims

were previously diagnosed with asbestosis. The relatively short

latency period for asbestosis, the applicable two-year statute

of limitations for personal injury, and the substantially longer

latency period for mesothelioma virtually guarantee that

individuals who have asbestosis will be barred from recovering

damages should they subsequently develop mesothelioma.

Such a holding is contrary to the purpose behind the

creation of a discovery rule. Indeed, the enactment of the

discovery rule provisions in Code § 8.01-294(4) is only one of

several actions taken by the General Assembly that suggest an

intent to treat asbestos-related diseases differently in order

to produce a fair result. See Code § 8.01-277(B) (permitting

dismissal of actions in cases where process is not served within

34 one year, but excepting asbestos cases); Code § 8.01-335(D)

(permitting cases where process is not served within one year to

be struck from docket, but excepting asbestos cases).

Certainly, it is not the case that two asbestos-related

diseases could never constitute the same cause of action. That

is not the question before us. Should medical knowledge evolve

to show that the harm occurred simultaneously, for example, the

injuries would constitute the same cause of action. The Tenth

Circuit put it well in a similar question certified to the

Supreme Court of Colorado:

We recognize that the relationship between asbestos- related pleural disease and asbestosis is a factual question. Because this is an appeal from a summary judgment and there is conflicting evidence in the record, it must be assumed that asbestosis is separate and distinct from and not a complication of asbestos- related pleural disease. We thus respectfully request the Colorado Supreme Court to focus on the narrow legal issue of whether a statute of limitations begins to run anew for a separate, distinct, and later- manifested disease caused by exposure to asbestos.

Miller v. Armstrong World Indus., Inc., 817 P.2d 111, 113 (Colo.

1991) (quoting from the certification order and finding that the

discovery of one separate asbestos related disease does not

trigger the statute of limitations on a yet undiscovered

disease).

Ever-evolving, fact-specific inquiries such as this are

best left to expert testimony at trial. Given sufficient

evidence to create an issue of fact, however, as to whether the

35 disease is distinct and not a mere complication of an earlier

diagnosis, and provided that the other requisite elements have

been pled, courts should consider mesothelioma as a distinct

harm and a distinct cause of action.

Finally, permitting distinct causes of action would join a

nationwide trend toward adopting a two-disease rule in the

interest of equity and judicial economy. See Hagerty v. L&L

Marine Servs., Inc., 788 F.2d 315, 320 (5th Cir. 1986) ("At

least in the toxic chemical or asbestos cases, the disease of

cancer should be treated as a separate cause of action for all

purposes. There should be no cause of action or beginning of

the running of limitations until the diagnosis of the

disease. . . . A prior but distinct disease, though the

tortfeasor may have paid reparations, should not affect the

cause of action and damages for the subsequent disease.");

Wilson, 684 F.2d at 120 (D.C. Cir. 1982) ("Concern for judicial

economy also influences our decision. [I]f [an injured] person

is told that another, more serious disease may manifest itself

later on, and that a remedy in court will be barred unless an

anticipatory action is filed currently, there will be a powerful

incentive to go to court [and the] plaintiff's representative

. . . may be motivated to protract and delay once in court so

that the full story of his client's condition will be known

before the case is set for trial."); Fearson v. Johns-Manville

36 Sales Corp., 525 F.Supp. 671, 674 (D.D.C. 1981) ("Under

defendants' theory, plaintiffs would be forced to come into

Court as soon as any minimal problem is diagnosed and seek

speculative damages as to any other injuries that might develop

in the future. Plain common sense teaches that the law was

never meant to be so unreasonable."); Miller, 817 P.2d at 113

(concluding, in answer to a certified question of law from the

United States Court of Appeals for the Tenth Circuit, that one

asbestos-related diagnosis does not trigger the statute of

limitations for a distinct asbestos-related disease); Sheppard

v. A.C. & S. Co., 498 A.2d 1126, 1134 (Del. Super. 1985)

("[L]atent disease cases justify a change in our perception and

application of the statute of limitations to the end that a

plaintiff with the misfortune of contracting more than one

asbestos-related ailment over a long period of time not be

without a remedy for the later and generally more serious and

inherently unknowable claims."); Eagle-Picher Indus., Inc. v.

Cox, 481 So.2d 517, 529-30 (Fla. Dist. Ct. App. 1985)

(concluding that, because damages for enhanced cancer risk were

not part of plaintiff's first award, a subsequent cause of

action for damages due to cancer caused by asbestos was not

barred); Va Salle v. Celotex Corp., 515 N.E.2d 684, 687 (Ill.

App. Ct. 1987) ("To preclude recovery based upon the statute of

limitations under these factual circumstances would . . . mean

37 that at some past moment in time, unknown and inherently

unknowable even in retrospect, [plaintiff] was charged with

knowledge of [asbestos-originating lung cancer].") (internal

quotation marks and citations omitted); Wilber v. Owens-Corning

Fiberglass Corp., 476 N.W.2d 74, 78 (Iowa 1991) ("The

manifestation of asbestosis does not trigger the running of the

statute of limitations on all separate, distinct, and later-

manifested diseases which may have stemmed from the same

asbestos exposure."); Smith v. Bethlehem Steel Corp., 492 A.2d

1286, 1296 (Md. 1985) ("[T]he starting point for Pierce was the

medical evidence that lung cancer was a latent disease, separate

and distinct from asbestosis. . . . Our review of Pierce

convinces us that the fact that the claimant there had not

previously sued in tort for damages for asbestosis was not a

factor material to the holding."); Larson v. Johns-Manville

Sales Corp., 399 N.W.2d 1, 9 (Mich. 1986) ("The alternatives

facing this Court are . . . to force all asbestosis victims

. . . to sue for the possibility of contracting cancer, or . . .

to allow these victims to wait until the discoverable appearance

of cancer before bringing suit. The latter alternative seems to

us infinitely preferable."); Ayers v. Township of Jackson, 525

A.2d 287, 300 (N.J. 1987) ("[N]either the statute of limitations

nor the single controversy rule should bar timely causes of

action in toxic-tort cases instituted after discovery of a

38 disease or injury related to tortious conduct, although there

has been prior litigation between the parties of different

claims based on the same tortious conduct."); Fusaro v. Porter-

Hayden Co., 548 N.Y.S.2d 856, 860 (N.Y. Sup. Ct. 1989)

("Implicit or explicit recognition of the second injury concept

is evident in the rulings and jury charges of the Federal

District Courts and State Courts in this jurisdiction as well.

Juries . . . may not compensate asbestosis victims for increased

risk of cancer because there is insufficient probability that

the disease will develop. The language of these charges and

rulings suggest that future actions will not be barred should

cancer actually occur.") (internal citations omitted); Potts v.

Celotex Corp., 796 S.W.2d 678, 685 (Tenn. 1990) (concluding, in

response to a certified question of law from the United States

Court of Appeals for the Sixth Circuit, that "discovery of a

separate, independent, and distinct disease related to asbestos"

does not constitute "discovery of other separate, independent,

distinct, and latent asbestos-related diseases," and that such

latent diseases are not barred by the statute of limitations by

virtue of the prior discovery of a distinct disease.); Sopha v.

Owens-Corning Fiberglas Corp., 601 N.W.2d 627, 630 (Wis. 1999)

("We hold that a person who brings an action based on a

diagnosis of a non-malignant asbestos-related condition may

39 bring a subsequent action upon a later diagnosis of a distinct

malignant asbestos-related condition.").

Judicial tribunals across the nation have faced a common

question of equity: how to provide proper remedies for a

generation of workers who are facing devastating diagnoses of

latent asbestos-related diseases not previously accommodated by

our legal system. In the absence of a clear legislative

mandate, this Court has a duty to clarify how our long-standing

principles of law apply to victims of asbestosis and

mesothelioma. Our common law cause of action principles provide

for distinct causes of action, and such an outcome supports both

equity and judicial economy.

For these reasons, I would answer the certified question of

law in the affirmative with respect to alternative [I] and in

the negative with respect to alternative [II].

I respectfully dissent.