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Miller v. Armstrong World Industries Inc.9/16/1991
sed in Owens v. Brochner, Colo., 172 Colo. 525, 474 P.2d 603 .
DeCaire v. Public Serv. Co. of Colorado, 173 Colo. 402, 407, 479 P.2d 964, 966 (1971).
III.
The question posed is whether this court can reasonably infer from the statute on limitation of actions that the discovery of the initial asbestos-related disease also triggers the running of the statute on a separate, distinct and later-manifested disease. Contrary to prior decisions by this court and the plain language of the statute, the majority has answered the question in the negative. I dissent because the statute of limitations, which unambiguously provided that "all actions . . . shall be brought within three years," cannot be interpreted to mean that each possible disease related to asbestos exposure has a separate limitations period. "If this is an unfair result, the remedy for its correction lies with the General Assembly" and not with this court. Crownover v. Gleichman, 194 Colo. 48, 574 P.2d 497, 499 (Colo. 1977).
Limitation periods and accrual thereof are creatures of statute. The limitation periods for a given type of action reflect the legislature's judgment.
Two considerations, particularly, motivate legislation placing time limitations on the commencement of litigation. The first, which may be designated evidentiary, relates to "the search for truth [which] may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise." The second, repose, concerns the potential defendant's interests in security against stale claims and in planning for the future without the uncertainty inherent in potential liability.
Wilson v. Johns-Manville Sales Corp., 684 F.2d 111, 118-19 (D.C. Cir. 1982) (footnote omitted) (emphasis in original) (quoting United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979)). It is therefore apparent that the limitation period reflects the legislature's judgment that at a particular point in time "'the right to be free of stale claims . . . comes to prevail over the right to prosecute them.'" United States v. Kubrick, 444 U.S. 111, 117, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979) (quoting Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 349, 64 S.Ct. 582, 88 L.Ed. 788 (1944)).
Whether pleural thickening is an injury is a question of fact, as is the date on which Miller discovered his injury resulting from the exposure to asbestos. Once the injury and its cause were discovered, then, under the limitation of actions statute in effect, Miller had three years to assert "all actions" arising from his asbestos exposure. Thus, once an individual is on notice as suffering from an asbestos-related injury and there is a reasonable medical probability that other injuries may occur from the exposure, all probable injuries associated with the asbestos exposure should be pleaded and proved, and appropriate instructions for damages should be requested. See Howell v. Celotex Corp., 904 F.2d 3, 5 (3d Cir. 1990).
Although the statute may create difficulty in proof of damages when applied to asbestos-related diseases or other diseases characterized by extended latency periods, any changes in favor of asbestos or other latent-disease claimants must come from the General Assembly. I therefore dissent.
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