JUDY L. COMBS, INDIVIDUALLY, AND AS EXECUTRIX OF THE ESTATE OF VIRGIL COMBS v. ALBERT KAHN & ASSOCIATES, INC., AND TURNER CONSTRUCTION COMPANY
Annotate this Case
Download PDF
RENDERED:
JANUARY 6, 2006, 10:00
TO BE PUBLISHED
A.M.
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-002178-MR
JUDY L. COMBS, INDIVIDUALLY, AND AS
EXECUTRIX OF THE ESTATE OF VIRGIL COMBS
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE G. CLAYTON, JUDGE
CIVIL ACTION NO. 00-CI-004785
v.
ALBERT KAHN & ASSOCIATES, INC.,
AND TURNER CONSTRUCTION COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, MINTON, AND TAYLOR, JUDGES.
MINTON, JUDGE:
Judy Combs appeals from an opinion and order of
the circuit court granting summary judgment in favor of Albert
Kahn & Associates, Inc., and Turner Construction Company. 1
The
trial court dismissed the Combses’ claims against Kahn and
1
Both Virgil Combs and Judy Combs were plaintiffs when the summary
judgment was granted. But Virgil died during the pendency of this
appeal, and Judy has been substituted as a party for Virgil in her
capacity as personal representative of the estate.
Turner on the sole ground that these claims were barred by the
applicable statute of limitations.
We hold that summary
judgment was proper, and we affirm.
The General Electric Appliance Park was built in the
1950s.
The buildings contain asbestos insulation in numerous
areas and various applications.
Virgil Combs worked at the
Appliance Park from 1973 through 1999.
was diagnosed with asbestosis.
In January of 2000, he
He alleged that he was exposed
to asbestos fibers and asbestos dust from the buildings’
deteriorating insulation while he was employed at the Appliance
Park.
On July 27, 2000, the Combses filed a lawsuit against a
number of manufacturers or distributors of products containing
asbestos, seeking recovery for Virgil’s asbestosis, his
increased risk of developing mesothelioma or other types of
cancer, and mental suffering due to anxiety caused by this
increased risk of cancer. 2
In March of 2003, Virgil was diagnosed with lung
cancer.
2
On April 9, 2003, the Combses moved to amend their
See Compl., ¶ 28 (stating that “. . . [Virgil] was caused to
contract diseases and injuries to his body, lungs, and respiratory
system, and develop a significantly increased risk of mesothelioma
and other cancers and injuries causing him pain, suffering and
mental anguish, some or all of which may be permanent and/or
fatal.”); Compl., ¶ 29 (stating that “. . . [Virgil] has undergone
great physical pain, mental anguish and shock to his nerves and
nervous system and severe anxiety due to the knowledge that he has a
significant medical risk of contracting cancer, some or all of which
may be permanent or fatal, as a result of his exposure to
defendants[’] asbestos products.”
-2-
complaint to add a claim for lung cancer.
As part of this
amended complaint, they also sought to add two new defendants,
Kahn and Turner.
Kahn is the architectural and engineering firm
that prepared the specifications for the design of the Appliance
Park.
Turner is a construction company that served as the
general contractor for the building of the Appliance Park from
approximately 1951 through 1954.
The Combses allege that Kahn
and Turner were negligent in specifying the use of asbestoscontaining products in the Appliance Park or, alternatively, in
not warning the workers at the Appliance Park, such as Virgil,
of the risks of asbestos exposure.
The language of the amended
complaint indicates that the Combses seek to hold all of the
defendants, including Kahn and Turner, liable for Virgil’s
asbestosis, lung cancer, and his severe anxiety related to them. 3
But at oral argument the Combses’ counsel conceded that they
have no viable claim against Kahn and Turner for Virgil’s
asbestosis, his increased risk of developing cancer, or his
anxiety concerning his increased risk of developing cancer.
They seek to hold Kahn and Turner liable only for any claims
related to Virgil’s lung cancer.
3
See Am. Compl., ¶ 9 (stating that “[Virgil] was caused to contract
diseases and injuries to his body system, lungs, and respiratory
disorders, including cancer. [Virgil] underwent great physical
pain, mental anguish, shock to his nerves and nervous system and
severe anxiety due to his contracting an asbestos related lung
cancer as a result of his exposure to Defendants’ asbestos products.
-3-
The trial court permitted the Combses to amend their
complaint.
Kahn and Turner soon filed a motion for summary
judgment on the ground that any claims against them were barred
by the statute of limitations.
The trial court agreed with the
movants that the Combses’ causes of action for lung cancer
against Khan and Turner accrued when Virgil was diagnosed with
asbestosis in January of 2000 and that a one-year statute of
limitations governed the Combses’ claims.
Accordingly, the
trial court granted summary judgment in favor of Kahn and
Turner, dismissing the Combses’ claims against them as timebarred.
The Combses filed this timely appeal.
They assert that
the trial court erred in granting summary judgment in favor of
Kahn and Turner.
Before discussing the merits of the trial court's
grant of summary judgment, we must define the scope of our
review.
In assessing the propriety of the trial court’s grant
of summary judgment to Kahn and Turner, we are mindful of the
fact that summary judgment was appropriate only if Kahn and
Turner showed that the Combses "could not prevail under any
circumstances." 4
In ruling on a motion for summary judgment, we
must view the evidence in the light most favorable to the non-
4
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476,
480 (Ky. 1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d
255 (Ky. 1985)).
-4-
moving party or parties, who are the Combses in this case. 5
When
we review a trial court’s decision to grant summary judgment, we
must determine whether the trial court correctly found that
there were no genuine issues of material fact and that the
moving party was entitled to judgment as a matter of law. 6
Because findings of fact are not involved in the summary
judgment process, the trial court's decision is entitled to no
deference. 7
The trial court stated that the case was governed by a
one-year statute of limitations but did not specify which one
applied.
We hold that KRS 413.140(1) is the appropriate statute
of limitations for personal injury claims due to asbestos
exposure. 8
Personal injury actions governed by KRS 413.140(1)
“shall be commenced within one (1) year after the cause of
5
Id.
6
Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996).
7
Id.
8
Although the claim against Kahn might be considered a professional
service negligence claim, we do not think that KRS 413.245, the
statute of limitations for professional service malpractice actions,
applies in this situation because of the language of that statute.
KRS 413.245 begins as follows: “Notwithstanding any other
prescribed limitation of actions which might otherwise appear
applicable, except those provided in KRS 413.140, . . . .” This
language suggests that KRS 413.245 is not intended to govern the
limitations period for any action that would otherwise be governed
by KRS 413.140. Regardless, since the period of limitations for a
professional negligence action is also one year, it does not matter
for the purposes of this opinion which one-year statute of
limitations applies. See KRS 413.245.
-5-
action accrued[.]”
The parties seem to agree that a one-year
statute of limitations is applicable, but they disagree on when
the Combses’ causes of action against Kahn and Turner accrued.
The fact that the original complaint filed against the
manufacturers and distributors of asbestos products was timely
filed does not save any untimely claims brought later against
the newly-added defendants, Kahn and Turner, because these
claims would not relate back to the original complaint.
This is
not a case in which Kahn and Turner had such notice of the
claims against them so as not to be prejudiced by having these
claims relate back to the earlier lawsuit. 9
A new party cannot
be brought into a lawsuit by amended complaint when the statute
of limitations governing the claim against that party has
already expired. 10
If, as Kahn and Turner averred, the
limitations period governing the claims against them expired in
January 2001, one year after Virgil was diagnosed with
asbestosis, these claims cannot relate back to the original
complaint filed on July 27, 2000.
The instant case involves alleged injuries or diseases
due to exposure to a harmful or toxic substance, asbestos, with
a period of latency between the exposure and the development of
9
See Kentucky Civil Rules of Procedure (CR) 15.03(2).
10
See id., Reese v. General American Door Co., 6 S.W.3d 380, 384
(Ky.App. 1998).
-6-
or diagnosis of the diseases.
In Louisville Trust Co. v. Johns-
Manville Products Corp., 11 the Supreme Court was faced with a
case, like the one before us here, in which the claimant first
developed asbestosis and then developed cancer due to asbestos
exposure. 12
The Court decided to extend the discovery rule to
tort actions for injury resulting from a latent disease caused
by exposure to a harmful substance. 13
established:
The following rule was
“‘A cause of action will not accrue under the
discovery rule until the plaintiff discovers or in the exercise
of reasonable diligence should have discovered not only that he
has been injured but also that his injury may have been caused
by the defendant’s conduct.’” 14
No cause of action accrues for
mere exposure to a harmful substance, such as asbestos, unless
or until the exposure actually causes injury. 15
But once an
individual realizes that he has been injured by the tortfeasor,
his cause of action accrues, even if he does not yet realize the
extent of his injury. 16
11
580 S.W.2d 497 (Ky. 1979).
12
See id. at 498.
13
See id. at 499.
14
Id. at 501, (quoting Raymond v. Eli Lilly & Co., 371 A.2d 170, 174
(N.H. 1977)).
15
Capital Holding Corp. v. Bailey, 873 S.W.2d 187, 192 (Ky. 1994);
Wood v. Wyeth-Ayerst Laboratories, 82 S.W.3d 849, 852 (Ky. 2002).
-7-
Cases involving exposure to asbestos pose a particular
challenge in determining when a cause of action accrues because
it is possible for a person to develop more than one disease
over the course of time as a result of exposure to the same
harmful substance.
The Kentucky Supreme Court has explained the
relationship between asbestos, asbestosis, and lung cancer as
follows:
Since the discovery of its toxicity,
asbestos has been found to be the cause of
several impairments, mostly respiratory.
Some, such as pleural plaques and
thickening, are not debilitating. Others
are potentially fatal, such as lung cancer
and the rarer mesothelioma. Asbestosis can
cause impairment, or . . . it can be a
milder disease. What is important to note
is that these diseases are not causes or
prerequisites for each other. One does not
flow from the other. 17
16
Caudill v. Arnett, 481 S.W.2d 668, 669 (Ky. 1972) (holding that
plaintiff’s cause of action for personal injury claim accrued at the
time of a bus accident in which he suffered minor injuries;
although, he did not learn that he developed chronic pancreatitis as
a result of that accident until six years later); Farmers Bank and
Trust Co. of Bardstown v. Rice, 674 S.W.2d 510, 511 (Ky. 1984)
(holding that plaintiff’s cause of action for medical negligence in
failing to diagnose cancer occurred when she first learned that she
had cancer, even though she might not have realized the full extent
of her injury until later when she had a recurrence of cancer after
a period of remission).
17
Carroll v. Owen-Corning Fiberglas Corp., 37 S.W.3d 699, 700-701 (Ky.
2000) (citing David E. Lilienfeld, “The Silence: The Asbestos
Industry and Early Occupational Cancer Research: A Case Study,”
81 AM. J. PUB. HEALTH 791 (1991)).
-8-
“[A]sbestosis and lung cancer are separate and distinct
diseases” that both arise from asbestos exposure.” 18
States have been categorized as “one-disease” states
or “two-disease” states by the way they treat multiple injuries
or recurring injuries from a single exposure to a toxic or
harmful substance:
Because a person may develop more than one
injury (or experience a recurrence of an
injury) from the same toxic exposure, a
particularly difficult issue has been when
the cause of action accrues in respect to
each subsequent injury. In some states the
first manifestation of an injury caused by
toxic exposure begins a single statutory
period. In these “one-disease” states the
plaintiff has only one opportunity to sue
for all injuries resulting from the same
toxic exposure. He must bring a cause of
action within the period of limitations
after the development of the first disease
or forever lose his right to sue for any
injuries resulting from the same toxic
exposure. In other jurisdictions, so called
“two-disease” states, a new cause of action
accrues with each injury discovered. Thus,
when a person experiences a non-debilitating
injury from toxic exposure he does not lose
his right to sue if and when another injury
later develops. 19
18
Carroll, 37 S.W.3d at 700.
19
1 Lawrence G. Cetrulo, Toxic Torts Litigation Guide § 7:37 (2005)
(citations omitted).
-9-
As the Supreme Court acknowledged, “Kentucky has never
been a ‘two disease’ state . . . .” 20
One of the factors
weighing against Kentucky courts treating each injury discovered
as a separate cause of action is the equitable rule against
splitting of causes of action. 21
This rule “requires a party to
assert all causes of action which may arise from a single
‘transaction’ in a single lawsuit, rather than proceeding
piecemeal in multiple actions.” 22
In Carroll, the Supreme Court explained the general
rule for handling asbestos-related claims as follows:
“Under
Capital Holding Corp., suits for asbestos-related claims in
Kentucky may be brought only once and may encompass all current
or future damages, because a claim made early can take into
account damages which may occur in the future.” 23
A person with
a current injury, such as asbestosis, is also permitted to seek
recovery for an increased risk of future complications or
20
Carroll, 37 S.W.3d at 700.
21
Capital Holding Corp., 873 S.W.2d at 193.
22
Id. at 194.
23
Carroll, 37 S.W.3d at 701 (citing Capital Holding Corp., 873 S.W.2d
at 195).
-10-
disease. 24
Mental distress due to anxiety over this increased
risk of future complications or disease is also recoverable. 25
Kentucky’s system requiring a plaintiff to seek
recovery for all possible injuries due to asbestos exposure at
the first sign of injury is consistent with the “one-disease”
state model. 26
The Supreme Court criticized the system followed
by Florida, which would allow a plaintiff to recover for
asbestosis and fear of developing cancer due to asbestos
exposure but would not let him sue for enhanced risk of
developing cancer, instead requiring him to file a separate suit
if he actually develops cancer due to asbestos exposure. 27
The
Court called Florida’s rule “unwieldy and unnecessary” under
Kentucky law, 28 which allows for a single suit to be brought for
asbestosis and for all current or future damages, including an
elevated risk of developing cancer and mental distress due to
anxiety about this elevated risk of developing cancer.
24
Davis v. Graviss, 672 S.W.2d 928, 932 (Ky. 1984); Capital Holding
Corp., 873 S.W.2d at 193-195.
25
Davis, 672 S.W.2d at 932; Capital Holding Corp., 873 S.W.2d at 193195.
26
See Cetrulo, supra.
27
Capital Holding Corp., 873 S.W.2d at 194-195, discussing EaglePicher Industries, Inc. v. Cox, 481 So.2d 517 (Fla.App. 1985).
28
Capital Holding Corp., 873 S.W.2d at 195.
-11-
The Court later recognized that Capital Holding Corp.
did not address the appropriate procedure to be followed “when
the plaintiff is not sufficiently impaired to warrant suing for
the earlier illness.” 29
This was the situation that the Court
had to address in Carroll.
The Combses rely on Carroll as
support for their claim that their causes of action against Kahn
and Turner did not accrue until Virgil developed lung cancer.
To see why the Combses rely on Carroll and why their reliance is
misplaced, we must summarize the facts and holding of that case.
After being exposed to asbestos through his job for
thirty years, James Carroll was diagnosed with “a mild, nonprogressive form of asbestosis.” 30
He did not file a lawsuit
over his asbestosis, presumably because his condition was not
disabling.
cancer.
But eight years later, he was diagnosed with lung
Within five months of his diagnosis of lung cancer,
Carroll filed suit against an asbestos manufacturer.
The
question in that case was whether Carroll’s cause of action for
lung cancer accrued when he was diagnosed with lung cancer or
when he was diagnosed with asbestosis.
If the cause of action
accrued when he was diagnosed with asbestosis, then his lawsuit
was untimely because it was filed after the one-year limitations
29
Carroll, 37 S.W.3d at 701.
30
Id. at 699.
-12-
period expired. 31
The Court ultimately held that “the action for
cancer accrued on the date of the diagnosis of the cancer, not
the diagnosis of asbestosis, which is a separate and distinct
disease.” 32
Based on this holding, the Combses assert that their
causes of action against Kahn and Turner also accrued when
Virgil was diagnosed with lung cancer in March of 2003 rather
than when he was diagnosed with asbestosis in January of 2000,
in which instance their motion to amend their complaint and add
Kahn and Turner as defendants in April of 2003 was timely.
But
Carroll did not radically change the law of Kentucky, making it
a “two-disease” state, as the Appellants seem to suggest. 33
holding in Carroll is much narrower than that.
The
And the
reasoning behind the Court’s decision is very fact-specific.
Because the facts in the instant case are distinguishable from
Carroll in several key respects, the rule established in Carroll
does not apply to the instant case.
31
Id. at 700.
32
Id. at 703.
33
At oral arguments, Combs’s counsel conceded that Kentucky was not a
“two disease state” and asserted that he was not advocating
otherwise. Yet, he continued to assert that the Combses’ cause of
action for lung cancer against Kahn and Turner accrued after their
cause of action accrued against the other defendants for asbestosis,
Virgil’s increased risk of cancer, and his anxiety concerning his
increased risk of cancer. This is the essence of the “two disease”
model.
-13-
First, the Supreme Court found that “[w]hen Carroll
was diagnosed with asbestosis, he did not necessarily know, nor
should he have known that he would also eventually develop lung
cancer.” 34
Moreover, the Court held that “[o]nly actual
knowledge or knowledge of the probability of disease” triggers
the running of the statute of limitations under the discovery
rule set forth in Louisville Trust Co. 35
In the instant case, it is clear that the Combses knew
that Virgil was at a greater risk of contracting lung cancer due
to his exposure to asbestos.
They included a claim for Virgil’s
elevated risk of developing cancer and for mental distress due
to anxiety regarding this elevated risk in their initial
complaint filed in 2000, several years before Virgil was
diagnosed with lung cancer. 36
Thus, unlike Carroll, the Combses
“had knowledge of the probability of disease,” namely lung
cancer, which is sufficient to trigger the running of the
statute of limitations for that disease, even before Virgil was
actually diagnosed as having lung cancer.
Second, Carroll never filed a lawsuit for his injuries
relating to his asbestos exposure before the lawsuit he filed
34
Id. at 701.
35
Id.
36
See n.1.
-14-
following his lung cancer diagnosis. 37
This removed any concerns
about violating the equitable rule against splitting causes of
action.
As the Court explained, “[s]plitting causes of action
inherently implies more than one action; nothing is split when
only one action is brought.” 38
Unlike Carroll, the Combses filed a lawsuit for
asbestosis, elevated risk of cancer, and mental distress due to
anxiety over the elevated risk of cancer after Virgil was
diagnosed with asbestosis.
Then, the Combses sought to amend
this complaint approximately three years later by adding new
claims for lung cancer and new defendants, Kahn and Turner.
effect, it is as if they filed two lawsuits.
In
This raises a
concern about splitting the Combses’ causes of action, which was
absent in the Carroll case.
For all of these reasons, the instant case is
distinguishable from Carroll.
And the holding in Carroll, which
permitted the plaintiff to sue for lung cancer long after he was
diagnosed with asbestosis and long after the one-year
limitations period for all potential personal injury claims
related to his asbestos exposure would ordinarily have expired,
is not applicable to the instant case.
37
Carroll, 37 S.W.3d at 700.
38
Id.
-15-
Carroll did not establish Kentucky as a two-disease
state.
Instead, it merely created a narrow exception to the
general rule established in Capital Holding Corp. that a
plaintiff must file suit within one year of his first diagnosis
of injury or disease resulting from asbestos exposure with this
suit encompassing all current and future damages related to that
asbestos exposure. 39
Carroll permits a plaintiff who has only a slight,
nondisabling injury from asbestos exposure and has no reason to
believe that he is at an elevated risk of suffering from any
more serious injury, such as cancer, from his asbestos exposure
to wait until he develops a more serious injury before filing a
lawsuit.
And, in that instance, the statute of limitations for
the later injury or disease will start running when the
plaintiff is diagnosed with that injury or disease rather than
running from the date of diagnosis of the earlier injury or
disease.
After Carroll, a plaintiff who has been injured from
asbestos exposure must make an election of how to proceed.
may follow the Capital Holding Corp. path:
He
filing suit within
one year of diagnosis of his first asbestos-related disease or
injury, in which case he must include any and all present and
future damages from asbestos exposure or risk losing the right
39
Id. at 701, citing Capital Holding Corp., 872 S.W.2d at 195.
-16-
to pursue these damages due to the statute of limitations.
Alternatively, if his first asbestos-related injury is nondisabling and he has no reason to believe that he is likely to
develop a more serious disease or injury, he may follow the
Carroll path:
waiting to sue until he develops a more serious
asbestos-related disease or injury and then filing within a year
of being diagnosed with this more serious disease.
But if he
follows the latter path, he may risk losing any right to recover
for the initial disease or injury.
This is because the statute
of limitations for this initial disease or injury begins to run
immediately upon its diagnosis.
The Combses, having chosen the Capital Holding Corp.
path, then tried, belatedly, to add new defendants to their suit
by claiming the benefits of the later statute of limitations
found by following the Carroll path.
But what the Combses seek
to do would violate the rule against splitting causes of action
and is inconsistent with Kentucky law regarding latent injuries
due to asbestos exposure.
We hold that the Combses’ causes of action against
Kahn and Turner, whom they sought to add as defendants in their
April 9, 2003, motion to amend, were time-barred.
The one-year
statute of limitations began to run on these claims when Virgil
was diagnosed with asbestosis in January of 2000 and not when he
was diagnosed with lung cancer.
-17-
In the alternative, the Combses assert that their
causes of action against Kahn and Turner did not accrue until
July 19, 2002, because they did not know until that date of the
involvement Kahn and Turner had in the building of the Appliance
Park.
Purportedly, they first learned of the roles of Kahn and
Turner in a deposition on that date in another case.
Even if
the Combses did not have actual knowledge of Kahn’s and Turner’s
roles until that date, they have offered no reason why they
could not have discovered this information sooner with
reasonable diligence.
“[T]he discovery rule does not operate to
toll the statute of limitations to allow an injured plaintiff to
discover the identity of the wrongdoer unless there is
fraudulent concealment or a misrepresentation by the defendant
of his role in causing the plaintiff’s injuries.” 40
A person who
knows he has been injured has a duty to investigate and discover
the identity of the tortfeasor within the statutory time
constraints. 41
The Combses have not shown that this information
was unavailable or concealed.
So we reject the argument that
the statute of limitations was tolled until July 19, 2002,
because of the discovery rule.
The statute of limitations for the claims that the
Combses raised against Kahn and Turner in the April 9, 2003,
40
McLain v. Dana Corporation, 16 S.W.3d 320, 326 (Ky.App. 1999).
41
Id.
-18-
motion to amend their complaint expired in January of 2001, one
year after Virgil was diagnosed with asbestosis.
Because all of
the claims against Kahn and Turner were untimely, the trial
court properly granted summary judgment in favor of Kahn and
Turner.
Finding no error, we affirm the trial court’s order of
summary judgment.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT FOR
APPELLANTS:
Kenneth L. Sales
Joseph D. Satterley
Paul J. Kelley
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE ALBERT KAHN &
ASSOCIATES, INC.:
James M. Gary
Russell H. Saunders
Patrick W. Gault
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE TURNER CONSTRUCTION
COMPANY:
Rebecca F. Schupbach
Rania M. Basha
Louisville, Kentucky
-19-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.