Despite this special attention to asbestos, however, the Legislature left unanswered a very important question: Does the limitations period run anew for each distinct asbestos-related injury, thus allowing a person to bring multiple suits based on different injuries arising out of the same wrong?
Two 1st District Court of Appeal decisions, Mitchell v. Asbestos Corp. Ltd., 62 Cal.App.4th 200 (1998), review granted, 76 Cal.Rptr.2d 178 (June 17, 1998), and Richmond v. A.P. Green Industries Inc., 66 Cal.App.4th 878 (1998), review granted, 78 Cal.Rptr.2d 356 (Jan. 13, 1999), have addressed this very question. However, their holdings directly conflict regarding the applicability, scope and purpose of Section 340.2 and its relationship to California's general rule against multiple actions based on the same wrongful conduct.
The Supreme Court has recognized the conflict and has acted by granting review in both cases. The court heard oral argument in the Mitchell case on March 8, and its opinion is pending. The Richmond case is on hold, pending disposition of the Mitchell case.
The plaintiffs in both Mitchelland Richmond were exposed to asbestos, filed a first suit, in which they claimed to suffer from asbestosis as a result of such exposure, and later brought a second action (beyond the limitations period on the first action) for a newly discovered injury (mesothelioma) resulting from the same asbestos exposure.
The issue in both the Mitchelland Richmond cases was whether the primary –right theory/single-action rule applied. The Second Division in Mitchell held that Section 340.2 does not provide authority to allow multiple actions; and that therefore under the general rule in California — the primary-right theory, or single-action rule — the plaintiff's second action was barred. The Fifth Division in Richmond, on the other hand, held that Section 340.2 affords victims of asbestos exposure the opportunity to seek redress for later manifested injuries without limiting the number of actions, because the limitations period starts anew for each distinct injury, thereby allowing plaintiff to recover for different injuries in the second action.
Section 340.2 is the codified statute of limitations applicable to any civil action for injury or illness based on exposure to asbestos. Under the statute, the time for commencing an action based on exposure to asbestos is the later of within one year after the date the plaintiff first suffered disability, or within one year after the date the plaintiff either knew, or should have known, that asbestos exposure caused or contributed to such disability. "Disability" is defined as the loss of time from work as a result of asbestos exposure. If a person is retired, however, the time to bring an action for asbestos exposure is unlimited and the statute never starts to run.
Both Mitchelland Richmond involve plaintiffs who first filed an action based on noncancerous injuries arising out of asbestos exposure and then, after the statute of limitations ran on their initial claims, filed a second action for mesothelioma, a malignant disease, within one year of diagnosis.
The Richmond court's decision to allow the plaintiff's second action rested on principles of public policy. Although the court acknowledged that California follows the primary-right theory — the rule that all claims arising from a single wrongful act must be asserted in a single cause of action — it said that the primary-right theory is "on a potential collision course in the case of injuries from asbestos exposure" with the general rule that requires a plaintiff to allege damages that are certain and not speculative.
The court reasoned that the primary-right theory creates a "Hobson's choice" for a potential plaintiff who suffers from asbestosis, a nonmalignant disease, but who may not yet have developed mesothelioma. Such an individual is forced to choose between two courses: suing for the noncancerous injury and gambling that he will not contract a malignant disease in the future — or that if he does, the malignancy will occur before the first case goes to trial; or foregoing an action for his non-cancerous injuries out of fear that his damages will be greater if and when he develops a more disabling malignancy, and that otherwise he would be precluded from recovering these damages.
The court further explained that strict adherence to the primary-right theory in asbestos-exposure cases would close the door on future injuries for which a plaintiff is unable to seek redress in an earlier suit because of the speculative nature of damages.
Focusing on the difference in the type of injuries alleged in the two lawsuits, the court found this case distinguishable from other cases barring subsequent actions beyond the applicable statute of limitations for the same injury. "If injured parties are not permitted to bring separate actions for asbestos exposure diseases that are distinct and manifested at different times, they are denied the opportunity for adequate compensation."
The court ultimately concluded that each disease, defined as either noncancerous or cancerous injury, should trigger a new limitations period to fully effectuate the purpose of Section 340.2 to afford victims of asbestos exposure the opportunity to seek redress for injuries that are manifested years after the exposure.
The Mitchell court, on the other hand, in barring the plaintiff's second action, emphasized that the California Legislature had already dealt with the problem of the latency of asbestos-related injuries by providing a delay mechanism to the general one-year tort limitations period through Section 340.2. The court explained that jurisdictions that allow case-splitting for different injuries (nonmalignant vs. malignant diseases) in asbestos-exposure cases do not have a special statute extending the general tort statute of limitations. Therefore, to avoid harsh results in applying a standard statute of limitations in cases involving progressive diseases associated with asbestos exposure, other jurisdictions must take it upon themselves to afford relief not provided for by code.
Although the court acknowledged case-law departures from the general rule, allowing an action to be split into two separate lawsuits in exceptional circumstances to avoid harsh results, it found that potential harshness in applying the primary-right theory in asbestos-exposure cases is eliminated by Section 340.2, because it allows plaintiffs to escape all time constraints until they reach the point of disability, or indefinitely, if retired. The court also noted the absence of any legislative intent to allow multiple actions in asbestos-exposure cases.
Finally, the court in Mitchell addressed the impact of general orders issued by San Francisco and Los Angeles trial courts in 1985 following the barrage of personal-injury actions based on asbestos exposure in the '70s and '80s. The plaintiff claimed that the general orders precluded plaintiffs who alleged only nonmalignant asbestos illness from recovering for their increased risk of contracting asbestos-related cancer, because of their right to bring a subsequent action if he or she later develops asbestos-related cancer would be preserved and the statute of limitations would start anew from the date of the cancer diagnosis.
The Mitchell court ruled that the general orders are in conflict with fundamental California tort law (i.e., the primary-right theory and Section 340.2) and therefore are invalid. The court concluded that the period of limitations does not run anew for each injury claimed or diagnosed as a result of exposure to asbestos.
Whether each distinct asbestos-exposure-related injury triggers a new limitations period now rests in the hands of the Supreme Court. Soon attorneys will learn whether a person alleging injuries based on asbestos exposure will be allowed to take two bites from the same apple.