Cecil v. Airco
Annotate this CaseJanuary 1992 Term
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No. 20274
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LYLE CECIL and ROSEMARY CECIL,
Plaintiffs Below, Appellants,
v.
AIRCO, INC.; ARNOLD MARTIN, INC.;
VIRGINIA WELDING SUPPLY COMPANY,
A WEST VIRGINIA CORPORATION;
AIR PRODUCTS AND CHEMICAL CORPORATION,
A DELAWARE CORPORATION,
Defendants Below,
And
AIR PRODUCTS AND CHEMICAL CORPORATION,
A DELAWARE CORPORATION,
Defendant Below, Appellee
__________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Herman Canady, Judge
Civil Action No. 88-C-2065
AFFIRMED
___________________________________________________
Submitted: January 28, 1992
Filed: April 20, 1992
Henry E. Wood III, Esq.
Mitchell & Wood
Charleston, West Virginia
Counsel for Appellants
Robert A. Goldberg, Esq.
King, Betts & Allen
Charleston, West Virginia
Counsel for Appellee
This Opinion was delivered Per Curiam.
SYLLABUS BY THE COURT
1. "In products liability cases, the statute of limitations
begins to run when the plaintiff knows, or by the exercise of
reasonable diligence should know, (1) that he has been injured, (2)
the identity of the maker of the product, and (3) that the product
has a causal relation to his injury." Syl. Pt. 1, Hickman v.
Grover, 178 W. Va. 249, 358 S.E.2d 810 (1987).
2. "Where a cause of action is based on tort or on a claim of
fraud, the statute of limitations does not begin to run until the
injured person knows, or by the exercise of reasonable diligence
should know, of the nature of his injury, and determining that
point in time is a question of fact to be answered by the jury."
Syl. Pt. 3, Stemple v. Dobson, 184 W. Va. 317, 400 S.E.2d 561
(1990).
3. "'"A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law." Syl. pt. 3, Aetna Casualty & Sur. Co. v.
Federal Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770
(1963).' Syllabus Point 1, Dawson v. Woodson, [180] W. Va. [307],
376 S.E.2d 321 (1988)." Syllabus, Brewer v. VanKirk, 183 W. Va.
172, 394 S.E.2d 771 (1990).
Per Curiam:
This is an appeal by Lyle and Rosemary Cecil from a July 16,
1990, order of the Circuit Court of Kanawha County which granted
summary judgment in favor of appellee Air Products and Chemical
Corporation (hereinafter "Air Products") and dismissed the
appellants' action against Air Products. The appellants contend
that they properly and timely included Air Products as a defendant
in their civil action and are entitled to proceed against Air
Products. We disagree and affirm the decision of the Circuit Court
of Kanawha County.
I.
Appellant Lyle Cecil was injured on June 25, 1986, while
performing construction work for general contractor Arnold Martin,
Inc. The appellant suffered extensive burn injuries when a cutting
torch exploded. The cutting torch was owned by Arnold Martin, Inc.
and was comprised of components manufactured by various companies.
It was ultimately determined that the oxygen and acetylene
cylinders were supplied by Virginia Welding Supply Company
(hereinafter "Virginia Welding"), the acetylene regulator was
manufactured by Airco, Inc., and the oxygen regulator was
manufactured by Air Products.
Upon filing the first complaint on June 10, 1988, however,
only Arnold Martin, Inc., Virginia Welding, and Airco were named as
defendants. It was mistakenly believed at that time that Airco
manufactured the oxygen regulator which was actually manufactured
by Air Products. The amended complaint naming Air Products was not
filed until August 26, 1988, two months after the running of the
two-year statute of limitations. The appellants contend that they
were initially unable to identify Air Products as the actual
manufacturer of the oxygen regulator and that they named Air
Products as a defendant in an amended complaint immediately after
discovering its identity as the manufacturer. The appellants
explained that after the June 25, 1986, accident, J. D. Hathaway,
an investigator from their attorneys' office, inspected and took
photographs of the cutting equipment on October 14, 1986. The name
"Air Products" was marked on the oxygen regulator. The appellants
contend, however, that Arnold Martin, Inc.'s insurer delayed their
attempts to have the equipment examined by an expert by insisting
that such inspection be completed only through formal discovery in
the litigation process. The appellee, however, contends that no
restrictions were placed upon anyone wishing to examine the
equipment or to obtain information concerning the manufacturers of
its components.
On the day following the accident, two employees of Virginia
Welding inspected the equipment and identified Air Products as the
manufacturer of the oxygen regulator. In a June 26, 1986, written
accident report by Virginia Welding branch manager Jim Colvin, Air
Products was identified as the manufacturer of the oxygen regulator
single stage model 1194, Serial Number 75554.See footnote 1
The appellants filed their amended complaint on August 26,
1988. Air Products thereafter filed a motion to dismiss based upon
the expiration of the statute of limitations. The Circuit Court of
Kanawha County found that "the uncontroverted evidence establishes
that the name 'Air Products' was clearly visible on the equipment"
and that "the components were always available to plaintiff for
reasonable inspection." The lower court concluded that "through
reasonable diligence, plaintiff could have ascertained the
manufacturer of the regulator." The lower court therefore granted
summary judgment in favor of the appellee and dismissed it from the
civil action.
II.
As we explained in syllabus point 1 of Hickman v. Grover, 178
W. Va. 249, 358 S.E.2d 810 (1987), "[i]n products liability cases,
the statute of limitations begins to run when the plaintiff knows,
or by the exercise of reasonable diligence should know, (1) that he
has been injured, (2) the identity of the maker of the product, and
(3) that the product has a causal relation to his injury."
On the date of his injury, the appellant knew that he had been
injured and that his injuries had been caused by the cutting
equipment. Furthermore, Air Products' name was clearly visible on
the oxygen regulator. The appellants' inspector examined and
photographed the product on October 14, 1986, and investigators for
Virginia Welding identified Air Products as the manufacturer by
simple visual inspection on the day following the accident.
Although it is unclear from the record whether the appellants
actually reviewed a copy of the report by investigators for
Virginia Welding, an inspector from the appellants' own attorney's
office inspected the equipment with the name "Air Products" marked
on it.
In Hickman, we recognized the potential "miscarriage of
justice" which may result when an injured plaintiff has no
opportunity to discover all the elements of his cause of action
prior to the running of the statute of limitations. 358 S.E.2d at
813. Such situation may frequently arise in cases of latent or
progressive injuries or injuries subsequent to extended periods of
exposure to chemicals, drugs, or asbestos. Id. In such a case,
the plaintiff has no means of connecting the product to the injury.
In the present case, however, the appellants had at their disposal
reasonable means of discovering the proper identity of the
manufacturer of the oxygen regulator. The appellants failed to do
so in a timely manner as prescribed by the two-year statute of
limitations. As we noted in Hickman, the plaintiff will almost
always know that he was injured and what caused him injury in
traumatic injury cases. Id. In those situations, we explained,
the statute of limitations will almost always begin to run from the
time of the injury. Id; see also Jones v. Trustees of Bethany
College, 177 W. Va. 168, 351 S.E.2d 183 (1986). In the present
case, since the words "Air Products" were clearly marked on the
product itself, the appellants, through the exercise of reasonable
diligence, could have discovered the identity of the manufacturer.
Under the factual circumstances existing in this case, we
cannot justify granting relief to the appellants. Pursuant to the
formula fairly enunciated in Hickman, the appellee is entitled to
application of the two-year statute of limitations. We do not
believe that the lower court erred by failing to impanel a special
jury to resolve the issue of when, by the exercise of reasonable
diligence, the appellant should have known the identity of Air
Products as the manufacturer of the oxygen regulator.
The appellants contend that a genuine issue of material fact
existed concerning the identity of the manufacturer of the oxygen
regulation. Summary judgment would have been improper if a genuine
issue of material fact had existed as to when the appellants, by
the exercise of reasonable diligence, should have known the
identity of the manufacturer. As we explained in syllabus point 3
of Stemple v. Dobson, 184 W. Va. 317, 400 S.E.2d 561 (1990),
[W]here a cause of action is based on tort or
on a claim of fraud, the statute of
limitations does not begin to run until the
injured person knows, or by the exercise of
reasonable diligence should know, of the
nature of his injury, and determining that
point in time is a question of fact to be
answered by the jury.
However, in our review of the present case, we find no clear
error in the lower court's determination that there was no genuine
issue of material fact to be resolved by a jury. The issue of when
a plaintiff, by the exercise of reasonable diligence, should know
the identity of the manufacturer would indeed be a jury question if
a genuine issue of material fact had been presented. As we
explained in Stemple, "[b]ecause there is a material question of
fact with regard to when the plaintiffs' right of action accrued so
as to commence the running of the statute of limitations, the
matter was clearly a question for the jury." 400 S.E.2d at 566.
Absent that material question of fact, however, the issue is
appropriately resolved through the summary judgment mechanism, as
was accomplished in the present case. Even viewing the evidence in
a light most favorable to the party against whom the judgment was
rendered, we believe that summary judgment was justified.
"'A motion for summary judgment should be
granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry
concerning the facts is not desirable to
clarify the application of the law.' Syl. pt.
3, Aetna Casualty & Sur. Co. v. Federal Ins.
Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963)." Syllabus Point 1, Dawson v.
Woodson, [180] W. Va. [307], 376 S.E.2d 321
(1988).
Syllabus, Brewer v. VanKirk, 183 W. Va. 172, 394 S.E.2d 771 (1990).
Based upon our review of this matter, we believe that that
standard was satisfied, and we find no error by the Circuit Court
of Kanawha County.
Affirmed.
Footnote: 1Although our review of the record does not clearly indicate
that the appellants actually received a copy of the Jim Colvin
document, the appellee states in its March 13, 1989, Renewed Motion
to Dismiss that the Jim Colvin document was "produced informally to
all parties during discovery. . . ."
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