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NCR Corp. v. U.S. Mineral Products Co.5/31/1995
COOK, J.
We are presented with the issue of when a cause of action accrues for asbestos-removal litigation. The court of appeals essentially held that a cause of action accrues when the property owner knows (1) that asbestos is present within the building and (2) that asbestos, in general, is hazardous. For the following reasons, we disagree with the appellate court's view that the "mere presence" of asbestos triggers the running of the statute of limitations, and therefore reverse its judgment.
While both parties agree the discovery rule should be used and that the rule should focus on the condition of the asbestos, their views diverge on further delimiting when a cause of action accrues.
NCR proposes that a cause of action accrues when the condition of the particular asbestos is harmful or requires remediation. NCR suggests that we take a lead from our medical malpractice cases and require a "cognizable" or "alerting" event to trigger accrual. Such an approach, NCR contends, permits a plaintiff to understand the extent and seriousness of the asbestos condition, placing it on notice of the need to pursue possible remedies. See, e.g., Allenius v. Thomas (1989), 42 Ohio St.3d 131, 538 N.E.2d 93, and Burgess, supra. Also, NCR suggests that whether a particular asbestos in a structure has become harmful requires expert rather than lay determination. NCR commends the holding of Columbus Bd. of Edn. v. Armstrong World Industries, Inc., supra, as a proper application of its proposed rule.
NCR's contention that accrual should not occur until remediation begins or upon the expert determination that the condition of the asbestos is harmful is, in our view, unworkable. A test requiring expert determination or actual remediation before accrual would allow a plaintiff to stay the running of the statute of limitations until a time of its own choosing, by simply refraining from investigating or refusing to take remedial measures. For that reason, we find that in non-school cases, expert advice is not a prerequisite to the accrual of a cause of action for asbestos removal.
USM advocates a test where the cause of action accrues when the building owner knows or should have known that the asbestos has contaminated its property. USM's proposed "contamination" test appears to mirror the decisions from courts in other jurisdictions that have already decided the accrual issue in asbestos-removal litigation. See, e.g., MDU Resources v. W.R. Grace & Co., supra, 14 F.3d at 1279 (" he injury for which asbestos plaintiffs are being recompensed is the contamination of their buildings."); Adams-Arapahoe School Dist No. 28-J v. GAF Corp., supra, 959 F.2d at 872 (" nly asbestos contamination constitutes physical injury compensable under tort law."); Detroit Bd. of Edn. v. Celotex Corp. (1992), 196 Mich.App. 694, 493 N.W.2d 513; The 325sWilshire Blvd Bldg. v. W.R. Grace & Co. (July 24, 1989), D.C.Cal. No. CV 87- 6048-WMB, unreported, 1989 WL 260222.
USM contends this same line of cases defines "contamination" as the release of microscopic asbestos fibers into the air being breathed by the occupants of the building. This definition, however, is criticized by NCR as being too limited. Reliance on the measurement of air particles ignores the circumstance of having a building "contaminated" with delaminated friable asbestos fibers that have temporarily settled, and are undetectable with air testing, but are nevertheless uncontained and in a hazardous state. For these reasons, we find USM's proposed definition of the term "contamination" too inflexible to serve as the test for accrual of a cause of action.
Cour
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