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Anderson v. Metalclad Insulation Corp.5/19/1999
CERTIFIED FOR PUBLICATION
Warren L. Anderson, Jr., appeals from a judgment entered in favor of Metalclad Insulation Corporation (Metalclad) after the court granted Metalclad's motion for summary judgment on the ground that Anderson's complaint seeking recovery for asbestos related injury was filed after the limitations period specified in Code of Civil Procedure section 340.2.
Anderson contends that the court erred in shifting the burden to Anderson to submit evidence that he was not disabled, because the evidence Metalclad submitted was insufficient to support the inference that Anderson was disabled, as that term is defined in section 340.2, more than one year before the complaint was filed. We agree, and shall reverse the judgment.
FACTS
Anderson filed his complaint against Metalclad and numerous other defendants, on June 14, 1996. The complaint alleged that Anderson's exposure to asbestos and asbestos containing products, caused severe and permanent injury including breathing difficulties, asbestosis, and other lung damage, and increased risk and fear of developing mesotheliaoma, lung cancer and other cancers. Anderson was diagnosed with asbestos related pleural disease in September of 1995. The complaint further alleged that his injuries occurred at various locations and times, including service in the Army from 1963-1966, and during his employment as an insulator and welder at Southern California Edison Company which continued from 1966 through the date of filing of the complaint.
Metalclad answered the complaint, and raised as one of its affirmative defenses that the complaint was "barred by the applicable statutes of limitation."
On November 6, 1997, Metalclad filed its motion for summary judgment. Metalclad argued, in reliance upon Darden v. General Motors Corp. (1995) 40 Cal.App.4th 349, 356, and Barr v. ACandS, Inc. (1997) 57 Cal.App.4th 1038, 1049-1053, that the filing of a claim for workers' compensation benefits in February 1995 was analogous to filing a personal injury lawsuit based upon an injury caused by asbestos. It asserted that Anderson, by filing the claim for workers' compensation, had waived the statutory option of waiting to file suit until he was disabled as defined in section 340.2, and triggered the one-year limitations period.
The motion was based upon evidence that Anderson, in February 1995, filed a claim for workers' compensation benefits against his employer, Southern California Edison, describing his injury as "asbestosis." Metalclad also submitted Anderson's application to the Workers' Compensation Appeals Board (WCAB) for adjudication of claim, dated April 17, 1995. The application was filed because of a disagreement regarding liability for "Temporary" or "Permanent disability," reimbursement for medical expenses and treatment, compensation, and rehabilitation. In response to a question asking the applicant to describe the disability caused by the injury, including specifying the last day off work, and beginning and ending dates of all periods off due to this injury, Anderson stated "unknown." The application also stated that he had not received any employment insurance or disability benefits, and no medical treatment for the injury. Finally, Metalclad submitted Anderson's answer to interrogatory No. 44, stating that Anderson had filed a claim for workers' compensation benefits in 1995. Although Metalclad did not include the interrogatory, it also submitted his answer to interrogatory No. 39, in which Anderson stated: "Plaintiff does not at this time believe he has lost any wages or earnings as a result of exposure to asbestos. Plaintiff's investigation and discovery are continuing."
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