Talley v. John-Mansville Sales Corp.

328 S.E.2d 621, 285 S.C. 117, 1985 S.C. LEXIS 374

• Court: Supreme Court of South Carolina
• Decided: November 14, 1985
• Docket: 22273
• Status: Published

Opinions

Gregory, Justice:

This is a consolidated appeal arising from several products liability actions against various asbestos manufacturers. The cases are approaching trial and settlement negotiations are taking place.

Appellants moved before the Industrial Commission under S. C. Code § 42-1-560(f) to have settlement offers approved. The Industrial Commission refused to approve the settlements, ruling they had no jurisdiction because appellants were not yet disabled.

Had appellants concluded their products liability actions, by settlement or otherwise, they would have made a binding election of remedies under Fisher v. S. C. Dept. of Mental Health, 227 S. C. 573, 291 S. E. (2d) 200 (1982), and would be barred from pursuing benefits under Worker’s Compensation at a later date. Therefore, appellants moved to stay their third party actions until their Worker’s Compensation actions were resolved. In the alternative, they moved for voluntary non-suits without prejudice.

The trial judge denied the motion for a stay. He did grant the motions for voluntary nonsuits, subject to appellants paying the respondents’ attorneys’ fees. These ranged from Eight Thousand, Seven Hundred ($8,700.00) Dollars to Thirty Thousand ($30,000.00) Dollars per appellant. This appeal followed.

Asbestosis is a progressive disease. It may be diagnosed many years before it disables its victims. The statute of limitations for a third party action generally runs from the date of diagnosis.

On the other hand, a claim under the Occupational Disease Act does not vest until the employee becomes disabled or a carrier admits liabilty. See Vespers v. Springs Mills, 276 S. C. 94, 275 S. E. (2d) 882 (1981); Drake v. Raybestos-Manhattan, Inc., 241 S. C. 116, 127 S. E. (2d) 288 (1962); S. C. Code Ann. §§ 42-11-10, 42-11-20, 42-11-60 and 42-11-110 (1976 and 1983 Cum. Supp.).

Appellants’ dilemma is readily apparent. If they bring and conclude their third-party actions, they will be barred from seeking Worker’s Compensation by the Fisher rule. If they wait until they become disabled for the purposes of Worker’s Compensation, their third-party actions will be barred by the statute of limitations.

Appellants argue that this Court should carve an exception to Section 42-1-560(f) as interpreted by Fisher. Such a change is the function of the legislature, and this Court refuses to usurp legislative authority in this matter.

The operation of the Fisher rule creates an unjust result in these cases; however, appellants are not without a remedy.

Under these circumstances, the trial judge abused his discretion in refusing to grant the stay requested by appellants. Such a stay would best serve the interests of all parties involved in the growing asbestosis litigation.

Therefore, we reverse the order of the trial judge and remand for entry of any order staying these actions until the occurrence of one or more of the following events:¹

A. Appellants’ disabilities allow the Industrial Commission to take jurisdiction; or

B. One or more Workers’ Compensation Carriers accept liability and the Industrial Commission takes jurisdiction; or

C. Appellants move for the stay to be lifted; or

D. The legislature solves this dilemma.²

Appellants also object to the award of attorneys’ fees; however, since the stay has been ordered, the nonsuits will not be taken and the issue is moot.

Reversed and remanded.

Harwell, J., and Curtis G. Shaw and Frank Eppes, Acting Associate Justice, concur. Littlejohn, C. J., dissenting.

1 Of course, the occurrence of these events and the duration of the stay must be determined under the facts of each individual case.

2 We realize the terms of the stay could delay resolution of these cases for years, and stress that such a stay is proper only under the most exceptional circumstances; however, the inequity created by Fisher in these cases is the clearest example of such circumstances.