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Capital Holding Corp. v. Bailey3/24/1994
Opinion OF THE COURT BY JUSTICE LEIBSON
This case raises complex questions regarding when tort claims accrue for exposing the plaintiff to potentially harmful asbestos-related disease, and whether damages may be recovered when there is no present manifestation of a diseased condition.
The complaint alleged theories of liability based on negligence and outrageous conduct in exposing plaintiff to asbestos, causing increased risk of future injury or disease and severe emotional distress from the fear of developing cancer. It was dismissed with prejudice on summary judgment for the defendant, but the final order further provided that such dismissal "does not bar the Plaintiffs at any time hereinafter from filing any claim against Defendant for damages resulting from an injury or disease related to the asbestos exposure from which their Complaint herein arises." The effect of this order is to preserve plaintiffs' rights to further pursue tort litigation if and when a "disease related to the asbestos exposure" should manifest itself.
Our review of a summary judgment is limited to whether the facts alleged by the plaintiffs and the evidence of record supporting their claim at the time of dismissal, together with all reasonable inferences therefrom, fail to support a claim. See Paintsville Hosp. Co. v. Rose, Ky., 683 S.W.2d 255 (1985); Steelvest, Inc. v. Scansteel Service Ctr., Ky., 807 S.W.2d 476 (1991). Thus viewed, the evidence is as follows.
Between August and November of 1987, plaintiff, Larry Bailey, working for his wife's construction company, was engaged in removing pipes and ducts from the basement of the Commonwealth Building, in Louisville, Kentucky. The Commonwealth Building was owned by the defendant, Capital Holding Corporation. The defendant was aware of asbestos in the basement of their building, and, according to Bailey, either consciously aware of or recklessly indifferent to its dangerous propensities. Defendant had previously received a report of an analysis and inspection indicating asbestos contamination in the basement and engaged another company to attempt to remove or encapsulate areas that appeared to be "friable." Without telling Bailey of the asbestos, he was hired in August 1987 to remove certain unused sewer pipes from the basement, and he also removed certain steam pipes which he later found out were covered with molded asbestos insulation. According to Bailey, he went home each day covered with asbestos dust, albeit unknown to him, thus bringing his wife, Linda Bailey, into direct contact with the asbestos dust, and further contaminating their home with asbestos.
In March 1989 Bailey learned for the first time, from the former superintendent of the Commonwealth Building, that the area where Bailey had been working was contaminated with asbestos. Upon learning that he had been thus exposed to a potentially cancer-producing agent, he went immediately to Dr. William Anderson, a pulmonary specialist, for a physical examination, x-rays and testing. Dr. Anderson determined that Bailey had no present abnormality or manifestation of disease, but further concluded, and so testified, that Bailey has a slightly increased risk of developing asbestosis (a type of pneumoconiosis), and a significantly increased risk of developing mesothelioma (a painful and deadly form of cancer of the membranes surrounding the lungs). At the time of his deposition, Dr. Anderson could not quantify the enhanced risk of Bailey contracting mesothelioma.
After Dr. Anderson examined Bailey, but before his deposition, plaintiffs discovered the presence of two types of asbestos fibers in a
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