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Anderson v. Metalclad Insulation Corp.5/19/1999
on was that, irrespective of "disability" (italics added) by filing the workers' compensation claim, Anderson had triggered the statute of limitations, and waived his right to rely on the longer limitations period allowing him to wait until he was disabled. (See Darden v. General Motors Corp., supra, 40 Cal.App.4th at p. 356; Barr v. ACandS, Inc., supra, 57 Cal.App.4th at pp. 1049-1053.) The issue presented by Metalclad's motion was purely one of law: Did the filing of a workers' compensation claim trigger the one-year statute, and waive the benefit of section 340.2 subdivision (b) permitting Anderson to wait until he was disabled?
The court rejected Metalclad's argument, but sua sponte, for the first time at the hearing on the motion, suggested a new theory, i.e., that the workers' compensation claim established that Anderson was disabled as of the date the claim was filed, and because the claim described the injury as asbestosis, Anderson also knew his disability was caused by asbestos exposure. The court's new theory changed the focus of the motion from the narrow question whether filing a workers' compensation claim constitutes a first lawsuit and waives the plaintiff's right to wait until he is disabled, to the broader assertion that filing the workers' compensation claim supports the inference that the plaintiff is disabled, triggering the one-year limitations period. Despite not having had an opportunity to respond to this new theory in writing, or with appropriate evidence, Anderson's counsel did not object that Anderson did not have adequate notice of this new argument advanced by the trial court. The failure to object to lack of notice waives the issue on appeal. (People v. Mayfield (1997) 14 Cal.4th 668, 798; Pichon v. Pacific Gas & Electric Co. (1989) 212 Cal.App.3d 488, 499.)
Therefore, for purposes of our review, despite the fact that Metalclad did not argue it below, we shall accept the trial court's construction of the issue, as framed by the pleadings, to be whether the undisputed facts that Anderson filed a workers' compensation claim with his employer in February 1995 alleging asbestosis, and an application for adjudication of claim with the WCAB in April 1995 seeking temporary or permanent disability benefits and other relief, establish that he knew he had an asbestos related injury , and was disabled as of that date, triggering the one-year period.
To prevail on its motion for summary judgment based on the affirmative defense that the action is barred by section 340.2, Metalclad bore the burden of submitting uncontradicted evidence of three elements triggering the statutory period: (1) The plaintiff was disabled within the meaning of the statute, (2) the disability was caused or contributed to by his exposure to asbestos, and (3) the plaintiff knew, or in the exercise of reasonable diligence should have known, the causes or contributing factors of his disability. (Uram v. Abex Corp. (1990) 217 Cal.App.3d 1425, 1431.)
We have no difficulty concluding that the only logical inference from the evidence that Anderson filed a workers' compensation claim based upon an injury described as asbestosis is that, as of the date of filing, he "knew, or through the exercise of reasonable diligence should have known" (ยง 340.2, subd. (a)(2)), that he had an injury and that the injury was caused, or contributed to, by exposure to asbestos. (Uram v. Abex Corp., supra, 217 Cal.App.3d. at pp. 1432-1435 (evidence that plaintiff received advice in 1976 that cause of medical problems was asbestos exposure and assertion in workers' compensation claim filed same year that injury was caused by asbestos exposure sufficient to support inference that plaintiff knew cause of in
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