Charles E. Jerkins v. Lincoln Electric Company et al. (Certified Question from the : U.S. District Court for the Northern District of Ohio, Eastern Division: No. 1:04-CV-18810)). Application Overruled. No Opinion.
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2011-2012
____________________
1091533
____________________
Charles E. Jerkins
v.
Lincoln Electric Company et al.
Certified Question from the
United States District Court for the Northern District of
Ohio, Eastern Division
(1:04-CV-18810)
On Application for Rehearing
STUART, Justice.
APPLICATION OVERRULED.
NO OPINION.
Malone, C.J., and Woodall, Bolin, Parker, Main, and Wise,
JJ., concur.
1091533
Murdock and Shaw, JJ., concur specially.
2
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MURDOCK, Justice (concurring specially).
I concur to overrule the application for rehearing.
I
write separately for two reasons: (1) to offer additional
comments
regarding
this
Court's
response
to
the
first
certified question in this case on original submission and,
(2)
with
question,
respect
to
to
address
our
answer
certain
to
the
concerns
second
certified
expressed
by
the
applicants for rehearing that are also addressed by Justice
Shaw in his special writing on application for rehearing.
1. The First Certified Question
The following statement appears in American Law Reports:
"Since in a case of exposure to disease through
the negligence of another, no one can know whether
disease will result, and, if the exposure is to an
occupational disease, the disease may develop only
after months and years of repeated exposure, and
even long after exposure has ceased, and, if it does
develop, no one will be able to say at precisely
what time it first existed nor exactly what exposure
produced it, many cases, manifestly to escape the
rigor and supposed general soundness of the idea
that an action for negligence accrues at the time of
the negligence ..., have evolved a theory whereby
the continuing negligence is regarded as a single
wrong against which the limitation period commences
to run only from the time of cessation of the wrong,
or cessation of the inhalation of the dust, gas, or
fumes, or exposure to deleterious substance ...."
3
1091533
Annot., When Limitation Period Begins to Run Against Cause of
Action or Claim for Contracting Disease, 11 A.L.R.2d 277, 289
(1950).
This passage speaks of a "single wrong," as well as
a single limitation period -— "the limitation period" -— that
commences to run only at the single point in time when that
wrong ceases.
Consistent with this passage, I had until this
case been under the impression that Alabama's "continuing
tort"
theory
of
recovery
for
long-term
exposure
to
toxic
substances, when applied in tandem with the last-exposure rule
recognized in Garrett v. Raytheon Co., 368 So. 2d 516 (Ala.
1979), meant that, so long as a claim was filed within the
period of limitations following the plaintiff's last exposure
to the hazardous substance, the plaintiff could recover all
damages referable to the malady resulting from the exposure to
the hazardous substance at any time during the plaintiff's
term of employment.
On original submission in this case, however, the Court
stated that "[a] plaintiff injured by long-term continuous
exposure to a toxic substance is limited to recovering damages
attributable
limitations."
to
injuries
occurring
___ So. 3d at ___.
4
within
the
period
of
A more careful review of
1091533
the quoted passage from American Law Reports yields a possible
explanation for the discord between it and our statement on
original submission limiting the damages that can be recovered
in
a
case
governed
by
Garrett.
The
passage
quoted
from
American Law Reports embraces a "single wrong" theory, and it
does so based on the predicate that the plaintiff's injury may
"develop" after exposure at some unknown and unknowable time.
The
analysis
employed
in
Garrett,
on
the
other
hand,
contemplates that the plaintiff actually suffers a physical
injury when he or she suffers an exposure, even if that injury
has yet to "develop" into something that is observable by the
injured party. 1
1
The decision in Garrett was based on the notion that
"damage must have occurred at the time of exposure else
defendant would not be liable." Garrett, 368 So. 2d at 520
(some emphasis added). Accordingly, the Court reasoned, the
statute of limitations for injury suffered as a result of
radiation exposure "begins to run when the plaintiff is
exposed to radiation and an injury occurs." 368 So. 2d at 518
(emphasis added).
See also William J.
Bowers, Jr.,
Limitation of Actions -- Industrial Diseases -- Ignorance of
a Cause of Action Will Not Toll Statute, 34 Tex. L. Rev. 480,
481 (1956):
"[I]t has been held that, even though the action was
brought within the statutory period after the last
exposure, the statute of limitation bars recovery
except for aggravation of the condition within the
statutory period. Pieczonka v. Pullman Co., 89 F.2d
353 (2d Cir. 1937); Minyard v. Woodward Iron Co., 81
5
1091533
Moreover,
my
consideration
brought to my attention
of
the
present
case
has
Alabama cases governed by the last-
exposure rule of Garrett, which as noted by the main opinion
on original submission, presaged our answer to the certified
question before us, i.e., that damages are limited to those
resulting
period.
from
injuries
occurring
within
the
limitations
Thus, in the case of Minyard v. Woodward Iron Co.,
81 F. Supp. 414, 417-18 (N.D. Ala. 1948), the federal district
court was able to state:
"Under pertinent decisions of the Alabama courts, a
recovery may be had for injury resulting from a
continuous tort subject to the limitation that only
damages
which
occurred
within
the
period
of
limitations may be recovered, provided that the
damages sustained within the statutory period are
separable from those that are barred under the
F. Supp. 414 (N.D. Ala. 1948). These decisions in
effect treat each exposure as an independent cause
of action."
(Emphasis added.) As the Garrett Court stated, "injury ...
occurred on the date or dates of exposure." 348 So. 2d at 520
(emphasis added).
It was on this basis that the Garrett
Court, as discussed in the text that follows this footnote,
could reason its way to a holding that, in effect, said no
cause of action could be brought for any injuries if not
brought within the limitations period following the last
exposure, while at the same time maintaining the position
that, even if a claim is timely filed under this rule,
recovery may be had only for injuries experienced by the
plaintiff within the limitations period.
6
1091533
statute by the lapse of time. American Mutual
Liability Ins. Co. v. Agricola Furnace Co., 236 Ala.
535, 183 So. 677 [(1938)]; Howell v. City of Dothan,
234 Ala. [158], 174 So. 624 [(1937)]; Lehigh
Portland Cement Co. v. Donaldson, 231 Ala. 242, 164
So. 97 [(1935)]. Cf. Michalek v. United States
Gypsum Co., 2 Cir., 76 F.2d 115 [(1935)]; Stornelli
v. United States Gypsum Co., 2 Cir., 134 F.2d 461
[(1943)]."
(Emphasis added.)
In
accord
with
this
statement
from
Minyard
is
following statement by this Court in Garrett, itself:
"Among
our
cases,
continuous
tort
cases
are
significant in the limitation of actions context. It
was thus that in American Mutual Liability Insurance
Co. v. Agricola Furnace Co., 236 Ala. 535, 183 So.
677 (1938), this Court held that recovery for a
continuous tort could be had only for those damages
which occurred within the period of limitations. See
also Howell v. City of Dothan, 234 Ala. 158, 174 So.
624 (1937). The cause of action was, therefore, not
barred by the statute of limitations until one year
after the last day on which the plaintiff was
exposed to the dangerous conditions which caused the
injury. Minyard v. Woodward Iron Co., 81 F. Supp.
414 (N.D. Ala.), aff'd, 170 F.2d 508 (5th Cir.
1948). This was, and is, the rule in all cases
concerning continuous torts in Alabama."
368 So. 2d at 521 (emphasis added).
7
the
1091533
It is as a consequence of such authority that I concurred
in the main opinion's response to the first certified question
on original submission. 2
2. The Second Certified Question
I first note that I agree with Justice Shaw that the
decision in Cazalas v. Johns–Manville Sales Corp., 435 So. 2d
55, 57 (Ala. 1983), indicates a distinction for purposes of
§
95,
Ala.
legislature,
Const.
by
1901,
lengthening
between
a
the
statute
of
ability
of
limitations,
the
to
revive a cause of action previously barred by lapse of time,
and the ability of the legislature to legislate an expansion
of the period as to which damages can be claimed in an action
2
The main opinion on original submission stated:
"[U]nder the continuous-exposure rule of Garrett,
the statutory period of limitations for a continuous
tort begins to run from the 'date of injury,' 368
So. 2d at 520, which is 'the last day on which
plaintiff was exposed to the danger.'
Garren v.
Commercial Union Ins. Co., 340 So. 2d 764, 766 (Ala.
1976)."
___ So. 3d at ___. Consistent with the foregoing discussion,
I believe this characterization of the holding in Garrett
would be more accurately phrased if it stated that, "[u]nder
the continuous-exposure rule of Garrett, the [last] period of
limitations [within which any claim can be brought for any
injuries suffered as a result of an exposure logically begins
to run on] 'the last day on which plaintiff was exposed to the
danger.'"
8
1091533
that is otherwise filed within a valid statutory limitations
period.
To the extent that Justice Shaw's writing also hints
at some concern about this disparate treatment, I would agree
with that as well.
Such disparate treatment
appears to be in
conflict with the principles discussed in Part 1 above.
particular,
as
the
main
opinion
on
original
In
submission
observed, ___ So. 3d at ___ (quoting Cazales, 435 So. 2d at
57), the rule governing the period within which injuries must
have
occurred
to
be
recoverable
"'does
not
...
operate
independently of the statute of limitations,'" but, "'[t]o the
contrary, it is a function the statute of limitations.'"
That
said,
I
am
reluctant
to
suggest
merit
in
the
defendants' argument that the prohibition in § 95, Ala. Const.
1901,
against
placed
some
Killian,
887
limitations
"reviving"
an
"otherwise
time-barred
limit
on
the
Court's
So.
2d
861
(Ala.
2004),
applicable
to
period
was
holding
in
claim"
McKenzie
that
a
v.
six-year
wantonness
claims.
Section 95 states that "the legislature shall have no power to
revive any right or remedy which may have become barred by
lapse of time, or by any statute of this state."
added.)
(Emphasis
I see nothing in this language that requires us to
9
1091533
apply § 95 to judicial decisions.
To the contrary, doing so
would be at odds with the strong bias in favor of retroactive
application of judicial decisions, a bias that is a function
of the so-called "declaratory theory" of appellate review. 3
It is correct, as the welding-rod manufacturers argue on
rehearing, that McKenzie was "wrongly decided."
it was decided.
Nonetheless,
It thereby became the "law of the land."
And
it remained so until it was overruled in Ex parte Capstone
3
Aside from the defendants' reliance on § 95, Justice Shaw
notes their reliance on caselaw:
"The welding-rod manufacturers and amici curiae
cite ... various cases in support of their position
that a change in a statute of limitations, either
directly by the legislature or indirectly by this
Court, cannot operate to revive a cause of action
already subject to the bar of a previous limitations
period.
See, e.g., Johnson v. Garlock, Inc., 682
So. 2d 25, 27-28 (Ala. 1996); Ex parte State Dep't
of Revenue, 667 So. 2d 1372, 1374 (Ala. 1995);
Crawford v Springle, 631 So. 2d 880, 881 (Ala.
1993); and Lader v. Lowder Realty Better Homes &
Gardens, 512 So. 2d 1331, 1333 (Ala. 1987)."
___ So. 3d at ___ (emphasis added). In point of fact, I can
find no cases that support the emphasized portions of this
position.
Consistent with the wording of § 95, the four
above-cited cases address only actual changes in statutes
adopted by the legislature. None of these cases addresses or
places any limitation on the ability of a court, under the
declaratory theory discussed below, to declare the meaning of
an already existing statute.
10
1091533
Building Corp., [Ms.
(Ala.
1090966, June 3, 2011] ___ So.
3d ___
2011).
This Court's bias in favor of retroactive application of
judicial
decisions
is
based
on
the
declaratory
theory
appellate review:
"'Since the Constitution does not change from year
to year; since it does not conform to our decisions,
but our decisions are supposed to conform to it; the
notion that our interpretation of the Constitution
in a particular decision could take prospective form
does not make sense.' American Trucking Ass'ns, Inc.
v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110
L.Ed.2d 148 (1990) (Scalia, J., concurring).
"Even when this Court is not applying a rule of
constitutional or statutory law, but is only
addressing the effects of decisional law, our strong
inclination is to avoid establishing rules that are
to be applied prospectively only:
"'Although
circumstances
occasionally
dictate that judicial decisions be applied
prospectively only, retroactive application
of judgments is overwhelmingly the normal
practice.
McCullar
v.
Universal
Underwriters Life Ins. Co., 687 So. 2d 156
(Ala.
1996)
(plurality
opinion).
"Retroactivity 'is in keeping with the
traditional function of the courts to
decide cases before them based upon their
best current understanding of the law....
It also reflects the declaratory theory of
law, ... according to which the courts are
understood only to find the law, not to
make it.'" 687 So. 2d 156, quoting James
B. Beam Distilling Co. v. Georgia, 501 U.S.
11
of
1091533
529, 535–36, 111 S.Ct. 2439, 2443–44, 115
L.Ed.2d 481 (1991).'
"Professional Ins. Corp. v. Sutherland, 700 So. 2d
347, 352 (Ala. 1997)."
Alabama State Docks Terminal Ry. v. Lyles, 797 So. 2d 432
(Ala. 2001).
Consistent with this declaratory theory, the Court in
McKenzie made a declaration as to the meaning of an existing
statute.
It was not acting as a legislature.
"'A judicial inquiry investigates, declares
and enforces liabilities as they stand on
present or past facts and under laws
supposed already to exist. That is its
purpose and end. Legislation on the other
hand looks to the future and changes
existing conditions by making a new rule to
be applied thereafter to all or some part
of those subject to its power.'"
New
Orleans
Orleans,
491
Pub.
U.S.
Serv.,
Inc.
350,
370-71
v.
Council
(1989)
of
City
(quoting
12
New
Prentis
Atlantic Coast Line Co., 211 U.S. 210, 226 (1908)).
difference is the reason for § 95.
of
v.
This
1091533
SHAW, Justice (concurring specially).
I
concur
However,
expressed
I
to
write
on
overrule
the
specially
rehearing
application
to
by
for
acknowledge
the
defendant
rehearing.
the
concerns
welding-rod
manufacturers and amici curiae Business Council of Alabama and
Alabama Defense Lawyers Association that application of the
six-year limitations period set out in McKenzie v. Killian,
887 So. 2d 861 (Ala. 2004), to Charles E. Jerkins's wantonness
claim will have the unintended effect of reviving wantonness
claims
that
would
otherwise
be
subject
limitations bar that predated McKenzie.
to
the
two-year
Specifically, the
welding-rod manufacturers argue:
"In answering the second certified question,
this Court acknowledged that McKenzie was wrongly
decided, as it recently held in Ex parte Capstone
Building Corp., [[Ms. 1090966, June 3, 2011] ___ So.
3d ___ (Ala. 2011)] (overruling McKenzie). But it
nonetheless applied McKenzie's erroneous six-year
rule to plaintiff's wantonness claim -- allowing him
to sue for any injury he could link to an exposure
that occurred in the six years prior to his
commencement of suit -- because he 'filed ... before
McKenzie was overruled.' (
So. 3d at
, Jerkins
v. Lincoln Elec. Co., No. 1091533 (Ala. June 30,
2011).) In so ruling, the Court looked only to the
question of how Capstone should be applied to a case
filed before it was decided, not to the question
posed by the federal court as to how McKenzie should
be applied to claims that arose before it was
decided.
13
1091533
"The Court thought it was necessary to apply
McKenzie's rule because of a concern that applying
a two-year limitations rule would deprive plaintiff
of a 'vested right' in a claim that would have been
timely under McKenzie. But the Court apparently
overlooked the fact that many of plaintiff's alleged
exposures occurred more than two years before the
decision in McKenzie and were thus already stale
under the limitations period that was applicable
before McKenzie was decided. It thus did not address
whether McKenzie resurrected claims based on those
older exposures, notwithstanding defendants' own
vested rights in the repose afforded to them under
the previously applicable two-year limitations
period.
"Defendants seek rehearing solely as to this
narrow issue, and ask the Court to conclude that
McKenzie's rule should only apply as to claims that
were
not
already
stale
under
the
previously
applicable two-year limitations period on the date
McKenzie was decided. Because the Jerkins decision
did not specifically address this issue, defendants
respectfully submit that the Court overlooked or
misapprehended significant points of law and fact,
warranting rehearing of that issue. See Ala. R. App.
P. 40(b)."
(Footnote omitted.)
As I understand the welding-rod manufacturers' argument,
they
do
not
certified
opinion
on
challenge
question,
original
this
which
Court's
was
submission
answer
summarized
as
in
follows:
to
the
the
"A
first
instant
plaintiff
injured by long-term continuous exposure to a toxic substance
is limited to recovering damages attributable to injuries
14
1091533
occurring within
.
the period of limitations."
So. 3d at
They object, instead, to this Court's answer to the
second certified question, which authorizes the application of
the six-year limitations period and, by extension, a six-year
period of recovery for damages to Jerkins's wantonness claim.
In
other
words,
the
specific
concern
of
the
welding-rod
manufacturers seems to be their perception that there is a
constitutional
impediment
to
allowing
Jerkins
to
recover
damages attributable to injuries occurring during the six-year
period preceding the filing of his action.
Amici
McKenzie
curiae
so
as
argue
to
generally
revive
a
that
wantonness
any
application
claim
that
of
would
otherwise be subject to the bar of the pre-McKenzie two-year
limitations period would be unconstitutional.
They state:
"[F]or example, a plaintiff whose cause of action
for wantonness accrued on March 4, 2002, but who had
not yet filed a claim for that tort when McKenzie
was decided on March 5, 2004, had already allowed
his right to assert that claim [to] lapse. At that
point, the defendant had a vested right in its
limitations defense."
(Emphasis in original.)
The welding-rod manufacturers and amici curiae cite Ala.
Const. 1901, art. IV, § 95, and various cases in support of
15
1091533
their position that a change in a statute of limitations,
either
directly
by
the
legislature
or
indirectly
by
this
Court, cannot operate to revive a cause of action already
subject to the bar of a previous limitations period.
See,
e.g., Johnson v. Garlock, Inc., 682 So. 2d 25, 27-28 (Ala.
1996); Ex parte State Dep't of Revenue, 667 So. 2d 1372, 1374
(Ala. 1995); Crawford v. Springle, 631 So. 2d 880, 881 (Ala.
1993); and Lader v. Lowder Realty Better Homes & Gardens, 512
So. 2d 1331, 1333 (Ala. 1987).
However, I do not understand this Court's opinion on
original submission as constituting authority for the general
proposition that an otherwise time-barred wantonness claim may
be revived by the application of the six-year limitations
period set out in McKenzie.
With respect to the welding-rod
manufacturers' argument that the applicable period of recovery
for damages could not constitutionally extend back more than
two years from the date Jerkins filed his action, I note that
there appears to be authority to the contrary.
In Cazalas v.
Johns-Manville Sales Corp., 435 So. 2d 55 (Ala. 1983), the
rationale of which was not challenged on original submission
and is not challenged on rehearing, this Court held that, at
16
1091533
least
in
restrict
certain
the
instances,
applicable
§
period
95
of
would
not
recovery
concomitant with a new limitations period.
necessarily
for
damages
This Court stated:
"While § 95 would prohibit the legislature from reviving a
cause of action which had become barred by lapse of time,
there
is
no
constitutional
requirement
that
damages
be
apportioned to conform with the prescriptive period for filing
an action."
this
issue
435 So. 2d at 57.
on
original
This Court did not address
submission;
any
reexamination
of
Cazalas must await a specific challenge to the logic of its
holding.
With respect to the arguments of amici curiae that this
Court has inadvertently held that otherwise barred claims may
be revived, I note that the United States Judicial Panel on
Multi-District Litigation consolidated in the United States
District Court for the Northern District of Ohio, Eastern
Division ("the MDL court"), in its certification, provided
this Court with a limited procedural background of the multidistrict litigation, as well as certain relevant, undisputed
facts.
The specific questions certified were framed under and
based upon the facts of Jerkins's case, which I understood to
17
1091533
be representative of other Alabamians with wantonness claims
now pending before the MDL court.
after
this
Court's
decision
in
Jerkins's action was filed
McKenzie,
and
his
alleged
exposure to welding fumes was essentially continuous from 1979
through about 2008.
Applying the limitations period set out
in McKenzie, see Crawford, 631 So. 2d at 881 (noting that
"generally the statute of limitations to be applied is that
which
is
in
effect
when
the
action
is
filed"),
and
the
continuing-exposure rule of Garrett v. Raytheon Co., 368 So.
2d 516 (Ala. 1979), to Jerkins's action, this Court concluded
on
original
time-barred.
submission
that
his
action
was
clearly
not
This Court was not faced with the issue whether
a claim was being revived by the application of the six-year
limitations
period
to
Jerkins,
i.e.,
the
kind
of
issue
illustrated by the example provided by amici curiae in their
rehearing application.
In sum, the concerns expressed on rehearing, although in
my view worthy of serious consideration, are outside the scope
of the specific questions certified to this Court and thus
must await resolution another day.
18
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