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Marshall v. AC&S;Inc.12/11/1989
James S. Marshall appeals from a trial court order granting summary judgment in favor of the respondents, a group of asbestos manufacturers. A Commissioner granted a court's motion on the merits pursuant to RAP 18.14. Marshall has moved to modify the Commissioner's ruling. We grant the motion to modify only for the purpose of adopting the Commissioner's analysis in this published opinion.
Marshall was exposed to asbestos products while employed at the Puget Sound Naval Shipyard in the 1950's. Some 25 years later he suffered from a lingering cough and lung congestion which caused him to visit a physician. At this time, Marshall was living in Moses Lake, Washington. His local physician took X-rays and sent him to Harborview Medical Center in Seattle for further examination.
Medical documents in the record demonstrate that when Marshall visited Harborview his X-rays were sent to Dr. D. Christie, a radiologist, for consultation. Christie's review of
the films resulted in a written diagnostic report that reads, "Bilateral pleural thickening with history of asbestos exposure. This is most compatible with asbestosis". The date of this document is July 12, 1982. There are also "progress notes" suggesting a second visit to Harborview by Mr. Marshall on July 13, 1982, and another copy of this radiology report with a drawing of lungs on it, suggesting that the report's contents were explained to the patient.
On November 19, 1985, Marshall filed suit against the named defendants, alleging personal injury as a result of the asbestos exposure. In Marshall's deposition of January 21, 1988, he stated unequivocally that he had been told he suffered from asbestosis by a doctor at Harborview on his first trip there. The only uncertainty he expressed concerned the date of that visit, which he stated was in "'82 or '83."
The defendants below moved for summary judgment, alleging that Marshall failed to file his suit within the 3-year statute of limitations applicable to the action. In response to that motion, Marshall filed an affidavit in which he claims that he "became aware of having physical problems in breathing in 1983, when I was living in Moses Lake." He goes on to state that his doctor in Moses Lake sent him to Harborview for tests but that he was never told by anyone that he had an asbestos related disease until 1985. The trial court granted the motion for summary judgment.
The tort reform act of 1981 applies to this litigation and RCW 7.72.060(3) establishes the statute of limitations for filing suit thereunder:
Statute of limitation. Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause.
In the instant case, Marshall's products liability case is time barred if he discovered the harm and its cause more than 3 years prior to the date he filed suit on November 19,
1985. The trial court found that this knowledge was gained by Marshall on July 12, 1982, leading to entry of an order of summary judgment.
In a summary judgment proceeding, the reviewing court makes the same inquiry as the trial court. Hontz v. State, 105 Wash. 2d 302, 311, 714 P.2d 1176 (1986). If the pleadings, depositions, admissions on file and the affidavits submitted demonstrate that no genuine issue of material fact exists and that the moving party is
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