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TOMLINSON v. CELOTEX CORP.3/3/1989
The opinion of the court was delivered by
This case was filed in the United States District Court for the District of Kansas and comes before this court by certification pursuant to the Uniform Certification of Questions of Law Act, K.S.A. 60-3201 et seq. This court accepted certification, and the question as framed by the certifying order is:
Does the ten-year limitation of K.S.A. 60-513(b) apply to claims involving latent diseases and, if so, is it constitutional as applied to this plaintiff?
The plaintiff, Richard W. Tomlinson, filed this action on May
11, 1987. Based upon theories of strict liability and negligence, plaintiff's suit alleges that he sustained personal injuries through exposure to asbestos manufactured, sold, or distributed by the eight defendants. Defendants named in the suit include The Celotex Corporation, Fibreboard Corporation, GAF Corporation, Keene Corporation, Owens-Corning Fiberglas Corporation, Owens-Illinois Corporation, Inc., Pittsburgh-Corning Corporation, and Eagle-Picher Industries, Inc.
The defendants filed a motion for summary judgment, arguing that plaintiff's claim was barred by the ten-year limitation contained in K.S.A. 60-513(b). Plaintiff responded that the provisions of K.S.A. 60-513(b) do not apply to claims involving injuries arising from latent diseases, and that any application of the statute to such injuries is unconstitutional. In resolving the certified question, the order from the United States District Court states that "it is assumed that plaintiff's exposure to excessive quantums of asbestos, which gave rise to his cause of action against these defendants, occurred within the years 1965 through 1971. The fact of his asbestos-related injury, i.e., diagnosis, by reason of its latent state, was not reasonably ascertainable until September, 1986."
At the time the plaintiff filed this action, K.S.A. 60-513(b) provided:
"Except as provided in subsection (c) of this section, the cause of action in this action [section] shall not be deemed to have accrued until the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action." In the present case, the plaintiff was last exposed to asbestos products manufactured, sold, or distributed by the defendants in 1971. His injuries due to this exposure, however, did not become reasonably ascertainable until approximately 15 years later. The parties dispute the applicability of the last clause of subsection (b) of K.S.A. 60-513 that "in no event shall the period be extended more than ten (10) years beyond the time of the act giving rise to the cause of action." The plaintiff contends that the ten-year limitation contained in subsection (b) does not apply to asbestos-related injuries or other injuries arising from latent diseases.
The ten-year limitation of K.S.A. 60-513(b) has received only limited attention from this court. Prior to its adoption in 1964, a plaintiff had two years in which to bring a cause of action, measured from the time of the plaintiff's injury. Kitchener v. Williams, 171 Kan. 540, 236 P.2d 64 (1951). In 1964, the legislature retained the old rule in part, but also provided that, where the fact of the plaintiff's injury was not reasonably ascertainable until some time subsequent to the defendant's wrongf
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