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Forsyth Memorial Hospital Inc. v. Armstrong World Industries Inc.6/17/1994
EXUM, Chief Justice.
This is an action arising out of the purchase and installation on plaintiffs' premises of asbestos-contaminated construction materials allegedly furnished by defendant. Plaintiffs filed suit sounding in negligence, breach of implied warranty and willful and wanton disregard for the rights of plaintiffs and others similarly situated. The issue presently dividing the parties concerns which statute of repose governs the action and whether such statute of repose time bars the claim. Because under plaintiffs' allegations, they may be able to prove that defendant, as a materialman, supplied directly to the jobsite the offending materials, plaintiffs' claim may be governed exclusively by the real property improvement statute of repose, N.C.G.S. § 1-50(5)(a)-(b) (1983), rather than the products liability statute of repose, N.C.G.S. § 1-50(6) (1983). While the six-year limitation period of section 1-50(5)(a) may bar plaintiffs' claim for negligence and breach of implied warranty, it would not bar their claim for willful and wanton misconduct because fraud and willful and wanton misconduct are specifically excepted from the six-year limitation period. N.C.G.S. § 1-50(5)(e).
Plaintiffs own and operate a hospital in Forsyth County known as Forsyth Memorial Hospital, Inc. Plaintiffs filed this action on 30 August 1990 in Forsyth County Superior Court, alleging that "floor tile and sheet vinyl flooring manufactured, sold and furnished by defendant was installed during the construction of certain parts of the hospital," including an addition constructed in 1976 and 1977. During hospital renovations in 1989-90, plaintiffs discovered that some of the flooring materials supplied by defendant contained asbestos, an allegedly known hazardous material, and that plaintiffs were forced to incur additional costs resulting from its removal. The complaint further alleged that at the time of the manufacture of the flooring material, defendant was aware that the asbestos in the flooring material was not readily identifiable by others and that if inhaled, the asbestos could cause asbestos-related disease. Despite this knowledge, plaintiffs alleged, defendant manufactured and sold the asbestos-contaminated materials until 1983.
In praying for both compensatory and punitive damages, plaintiffs alleged negligence, breach of implied warranty and intentional, willful and wanton disregard of the rights of plaintiffs and others similarly situated. The superior court dismissed the action on defendant's Rule 12(b)(6) motion and the Court of Appeals affirmed. We now reverse in part the Court of Appeals and hold plaintiffs' claim for willful and wanton misconduct was wrongfully dismissed.
Because this appeal is before us by way of the Court of Appeals on a motion to dismiss for failure to state a claim upon which relief can be granted, we take all allegations of fact as true. Amos v. Oakdale Knitting Co., 331 N.C. 348, 351, 416 S.E.2d 166, 168 (1992). A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the complaint by presenting "the question whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some [recognized] legal theory." Lynn v. Overlook Dev., 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991). A statute of limitation or repose may be the basis of a 12(b)(6) dismissal if on its face the complaint reveals the claim is barred. Oates v. Jag, 314 N.C. 276, 333 S.E.2d 222 (1985); F.D.I.C.
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