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Carter v. Fred's Plumbing & Heating Inc.11/4/2002
08, 400 A.2d 1001 (1979) (per curiam) (when judgment order does not dispose "of all the claims, rights and liabilities of all the parties," there is no appellate jurisdiction absent a Rule 54(b) determination). If a court or agency enters an order that fails to adjudicate all of the claims, that order is subject to revision until the adjudicating body issues an order putting all the claims to rest. Putney School, Inc. v. Schaaf, 157 Vt. 396, 407, 599 A.2d 322, 328 (1991). An order granting summary judgment to five of six potentially liable parties is not a final order, and as such, the Commissioner's ruling in this case was properly amenable to revision. Prior to the entry of a decision adjudicating all the relative claims and rights of the parties, the Commissioner may amend her ruling. Id; 21 V.S.A. § 668 (Cum.Supp. 2002).
Turning to plaintiff's substantive claims, plaintiff makes three arguments. First, he claims that the ODA applies and that his claim did not accrue until his diagnosis in 1999, rather than at the time of exposure to the asbestos. Second, he claims that if the ODA does not apply, then 21 V.S.A. § 660(b) applies, and his claim is not time-barred under that statute. Lastly, plaintiff asserts that if neither statute encompasses his claim, then he would be left without judicial remedy in violation of Vermont Const. Chapter 4, Article 4.
By the time plaintiff's disease became apparent, there can be little doubt that his claim was technically barred by the ODA. The statute of limitations that applies to a particular cause of action is generally the one in effect when the cause of action accrued. Cavanaugh v. Abbott Labs., 145 Vt. 516, 521, 496 A.2d 154, 157-58 (1985). The Occupational Disease Act in effect when plaintiff made his claim read, " ompensation shall not be payable for disablement by reason of occupational disease unless such disablement results within five years after the last injurious exposure to such disease in the employment. . . ." 21 V.S.A. § 1006(a) (1987). Plaintiff was not diagnosed with asbestosis within the prescribed five-year period. By precluding recovery for any injury that is undiscovered for five years, the statute is a substantive limitation on recovery for diseases that remained latent for longer than five years.
The Workers' Compensation laws were passed with the intent to supplant the complicated and inconsistent results of common law. In exchange for faster and more certain compensation, an employee foregoes the right to sue his employer. See 21 V.S.A. § 622 (statutory right is exclusive remedy for employee suffering personal injury ). In Sienkiewycz v. Dressell, 151 Vt. 421, 423-24, 561 A.2d 415, 416-17 (1989), we observed that § 622 provides an exclusive remedy for on-the-job injuries and precludes suits under tort law. However, the plain meaning of § 1006(a), "within five years after the last injurious exposure to such disease," indicates that a claim such as the plaintiff's is time-barred if not brought within five years of exposure. This Court presumes the Legislature intended statutory language to convey its "plain, ordinary meaning." Burlington Elec. Dept. v. Vt. Dept. of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990).
One month after he was diagnosed with pulmonary asbestosis, and one week before plaintiff filed his claim, the ODA was repealed and merged with the Workers' Compensation Act, 21 V.S.A. § 601-§ 701 (1987 and Cum.Supp. 2002). Thus on July 1, 1999, 21 V.S.A. § 660(b) went into effect. Section 660(b) provides specific protections for occupational diseases. It reads: "a claim for occupational disease shall be made within two years of the date the occupational disease is reasonably discoverable and apparent
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