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Brennan v. Owens-Corning Fiberglas Corp.9/6/2000
Boise, March 2000 Term
2000 Opinion No. 87
Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Honorable Thomas F. Neville, District Judge.
Summary judgment dismissing complaint for damages, affirmed.
This is an appeal from a summary judgment in favor of the defendants in an asbestosis personal injury case. The district court dismissed the plaintiff's case based upon the two-year statute of limitation found in I.C. § 5-219(4). We affirm.
BACKGROUND AND PRIOR PROCEEDINGS
John Brennan was exposed to asbestos during his employment as a union sheet metal worker for various employers in Idaho. On April 20, 1991, Brennan attended a medical screening for asbestos-related diseases sponsored by the Sheet Metal Workers' Union. In a letter dated July 26, 1991, Dr. Richard King told Brennan that the preliminary screening showed scarring of the lung consistent with asbestos exposure. Dr. King recommended that Brennan seek a further evaluation and referred him to Dr. Richard Robinson. Brennan was examined by Dr. Robinson on June 15, 1992. In a report dated June 29, 1992, Dr. Robinson noted that Brennan was a heavy smoker and concluded that his lung disease was more likely related to his smoking than to asbestos exposure. Brennan's attorney forwarded his medical records to Dr. Laura Welch at George Washington University Medical Center in Washington, D.C. Dr. Welch did not perform any tests on Brennan. Her evaluation was based entirely upon the tests and evaluations done by Drs. King and Robinson. In a letter dated October 7, 1992, Dr. Welch stated that Brennan had some smoking-related lung disease, but the majority of his impairment was due to asbestosis.
Brennan filed a complaint against several different defendants on July 15, 1993. Brennan's complaint was not served within six months and was dismissed pursuant to I.R.C.P 4(a). On October 3, 1994, Brennan filed a second complaint seeking damages for his alleged asbestos-related lung disease. On a motion made by one of the defendants, the district court found that Brennan's complaint was barred by the two-year statute of limitation on personal injuries found in I.C. § 5-219.
The district court determined that objective medical proof supporting the existence of Brennan's asbestos-related injury existed no later than the date of Dr. Robinson's July 1992 report. Consequently, the district court granted summary judgment for the defendants. On appeal, Brennan argues that the statute of limitation did not begin to run until he received Dr. Welch's report indicating that his impairment was due to asbestosis.
ISSUE ON APPEAL
Did the district court err in granting the defendants' motion for summary judgment on the ground that Brennan's complaint of October 3, 1994, was barred under the two-year statute of limitation for personal injuries set forth in Idaho Code § 5-219(4)?
STANDARD OF REVIEW
Summary judgment is appropriate where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." I.R.C.P. 56(c).
Where there are no disputed issues of material fact, what remains is a question of law, over which this Court exercises free review. Friel v. Boise City Housing Authority, 126 Idaho 484, 485, 887 P.2d 29, 30 (1995).
DISCUSSION
Idaho Code § 5-519(4) provides that all tort actions for professional malpractice or personal injury accrue "as of the time of the occurrence, act or omission com
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