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Peterson v. Owens-Corning Fiberglas Corp.3/19/1996
CORRIGAN, Acting P.J.:
Proposition 51 became effective June 4, 1986, eliminating joint and several liability for noneconomic damages in comparative fault situations. Thereafter, joint tortfeasors are liable only for the amount of such damages proportionate to their determined degree of fault. In Evangelatos v. Superior Court (1988) 44 Cal. 3d 1188, 1193-1194, 246 Cal. Rptr. 629, 753 P.2d 585 (Evangelatos), the Supreme Court ruled Proposition 51 does not apply to causes of action accruing before its effective date. In this case, we must decide how the new law operates in the context of a latent disease. The issue is when a cause of action for a latent disease can be said to have accrued.
We hold that, for purposes of Proposition 51, an action accrues when the plaintiff undergoes a physiological change that, to a reasonable degree of medical certainty, caused the condition giving rise to the claim. Here, the trial court used a different test, holding the cause of action accrued on the date of plaintiff's exposure to asbestos, rather than the date upon which that exposure caused injury. Accordingly, we reverse and remand for the limited purpose of determining whether Proposition 51 applies upon application of the correct test.
BACKGROUND
Owens-Corning Fiberglas Corporation (OCF) appeals from a judgment awarding David Peterson $1,206,261 for injuries caused by exposure to asbestos products. The only issue on appeal is whether Proposition 51 applies.
The Petersons sued a number of asbestos manufacturers. All but OCF settled before trial. Before the taking of testimony, OCF moved for a determination that Proposition 51's preclusion of joint and several liability for noneconomic damages would apply. The court denied the motion. It reasoned that the triggering date for the Proposition 51 limitation was the date of exposure to asbestos in OCF's products. The court explained it would reverse its ruling if the evidence were to establish any post-Proposition 51 exposure.
Evidence established that plaintiff was exposed to asbestos during his service in the United States Coast Guard from 1962 to 1982. A former OCF employee testified he packed various types of OCF asbestos insulation on a ship named the Ivy in 1959 or 1960, and again in 1961 or 1962. Plaintiff worked on the Ivy as a fireman apprentice in 1962 through 1963. He testified that he worked around asbestos "all the time" on the Ivy, performing a number of tasks that brought him into direct contact with the substance.
A naval shipyard employee testified he installed asbestos insulation on the ship Glacier during the mid-1960's. He estimated that OCF supplied about 25 percent of that insulation. Plaintiff was an engineer on the ship in 1968 and 1969. He testified that he was exposed to asbestos when overhauling the ship's engines and repairing torn insulation. He also handled asbestos brick on the Glacier. Plaintiff came into contact with asbestos insulation on four other ships but could not show that OCF had supplied those products.
Plaintiff had no asbestos exposure after 1982. In 1989 or 1990, he developed diabetes and vision problems and began having breathing difficulty while on disability leave for those conditions. Exploratory surgery performed in June 1991 revealed asbestosis. In late 1992, his doctor began to suspect pleural mesothelioma, a cancer of the lining of the lung cavity. Malignant mesothelioma was diagnosed in October 1993.
Plaintiff's epidemiology expert testified that the cellular changes that inevitably lead to mesothelioma take place approximately 10 to 15 years before the disease first becomes diagnosable. Plaintiff's expert p
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