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Payne v. Charlotte Heating & Air Conditioning8/16/2005
n finality. This contention begs the real question: what is the State's rationale for imposing a harsher statute of repose for claims involving asbestosis than for other latent occupational diseases, including other diseases resulting from exposure to asbestos? See Lamb v. Wedgewood South Corp., 308 N.C. 419, 434-35, 302 S.E.2d 868, 877 (1983) ("The equal protection clauses do not take from the state the power to classify persons or activities when there is a reasonable basis for such classification and for the consequent difference in treatment under the law." (internal quotation marks omitted)).
Defendants have presented no justification for the distinction made here between asbestosis/silicosis and other latent occupational diseases and we can conceive of none. As was true in Walters, the general goals articulated by defendants for the statute are legitimate state interests, but N.C. Gen. Stat. § 97-61.6 _ like the statute at issue in Walters _ is "grossly under inclusive in that it does not include all who are similarly situated." Walters, 120 N.C. App. at 401, 462 S.E.2d at 234.
While defendants point to asbestosis as "unique" because of its incurable and latent nature, our Supreme Court has already observed:
A disease presents an intrinsically different kind of claim. Diseases such as asbestosis, silicosis, and chronic obstructive lung disease normally develop over long periods of time after multiple exposures to offending substances which are thought to be causative agents. . . . The first identifiable injury occurs when the disease is diagnosed as such, and at that time it is no longer latent. . . . Even with diseases which might be caused by a single harmful exposure such as, for example, hepatitis, it is ordinarily impossible to determine which of many possible exposures in fact caused the disease. . . . Both the Court and the legislature have long been cognizant of the difference between diseases on the one hand and other kinds of injury on the other from the standpoint of identifying legally relevant time periods.
Wilder v. Amatex Corp., 314 N.C. 550, 557-58, 336 S.E.2d 66, 70-71 (1985). Thus, many occupational diseases, because of their latency or need for repeated exposure to hazardous conditions, give rise to concerns about "finality." Indeed, paragraph 4 of N.C. Gen. Stat.§ 97-61.6 does not even encompass other asbestos-related deaths, such as deaths from mesothelioma, a terminal asbestos cancer caused by exposure to asbestos, but not secondary to asbestosis. See Robbins v. Wake County Bd. of Educ., 151 N.C. App. 518, 566 S.E.2d 139 (2002) (addressing claim based on mesothelioma arising out of exposure to asbestos).
As this Court has since explained, in discussing the application of the Equal Protection Clause, " he statute at issue in Walters imposed upon claimants suffering from asbestosis or silicosis an additional burden for recovery not so imposed on claimants with other occupational diseases. The purposes for which the statute was enacted were equally applicable to all claimants suffering from occupational diseases." Jones v. Weyerhaeuser Co., 141 N.C. App. 482, 488, 539 S.E.2d 380, 383-84 (2000), appeal dismissed and disc. review denied, 353 N.C. 525, 549 S.E.2d 858 (2001). This analysis is equally true in this case. N.C. Gen. Stat. § 97-61.6 imposes an additional burden for recovery _ a shorter time frame for death benefits claims _ for asbestosis or silicosis when no rational basis exists for treating such occupational diseases differently from other latent occupational diseases.
Because defendant has failed to suggest a justification for treating asbestosis differently than other latent occupational diseases, such as
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