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explaining that Griffin's holding "would apply prospectively only, that is, only to those persons whose last exposure to a toxic substance, and first manifest injury resulting from that exposure, occurred within the two-year period before this Court released its opinion in Griffin"
Summary of this case from Morgan v. Bill Vann Co.Opinion
1091533.
2012-03-2
Charles E. JERKINS v. LINCOLN ELECTRIC COMPANY et al.
Scott O. Nelson of Maples & Lomax, P.A., Pascagoula, Mississippi; and Christopher T. Robertson and David W. Shelton, Oxford, Mississippi, for plaintiff. Timothy W. Knight of Kee & Selby, LLP, Birmingham; Stephen J. Harburg, Jessica D. Miller, and Geoffrey M. Wyatt of Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; and Steven W. Quattlebaum of Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, Arkansas, for respondents Lincoln Electric Company, Hobart Brothers Company, The ESAB Group, Inc., and Sandvik, Inc.
Scott O. Nelson of Maples & Lomax, P.A., Pascagoula, Mississippi; and Christopher T. Robertson and David W. Shelton, Oxford, Mississippi, for plaintiff. Timothy W. Knight of Kee & Selby, LLP, Birmingham; Stephen J. Harburg, Jessica D. Miller, and Geoffrey M. Wyatt of Skadden, Arps, Slate, Meagher & Flom LLP, Washington, D.C.; and Steven W. Quattlebaum of Quattlebaum, Grooms, Tull & Burrow PLLC, Little Rock, Arkansas, for respondents Lincoln Electric Company, Hobart Brothers Company, The ESAB Group, Inc., and Sandvik, Inc.
John M. Herke of Spyridon, Palermo & Dornan, LLC, Metairie, Louisiana, for respondent Socra Corporation.
Matthew C. McDonald of Jones, Walker, Waechter, Pointevent, Carrère & Denègre L.L.P., Mobile, for Business Council of Alabama; and Patrick L.W. Sefton of Sasser, Sefton, Tipton & Davis, P.C., Montgomery, for Alabama Defense Lawyers Association, for amici curiae Business Council of Alabama and Alabama Defense Lawyers Association in support of the plaintiff.
STUART, Justice.
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”), approximately 1,800 cases involving claims seeking damagesfor personal injuries allegedly caused by exposure to welding fumes. In re Welding Rod Products Liability Litigation, 269 F.Supp.2d 1365 (J.P.M.L.2003). Several dozen of those cases are governed by Alabama law, and the MDL court has identified three issues of Alabama law that may be determinative in those cases, yet, the MDL court states, there is no clear, controlling precedent in the decisions of this Court resolving those issues. Accordingly, the MDL court has certified three questions to this Court pursuant to Rule 18, Ala. R.App. P. We answer those questions below.
I.
The MDL court provided the following background information in the certification order filed with this Court on August 11, 2010:
“As a general matter, the plaintiffs in the [ In re] Welding Fume[ s Prods. Liab. Litig., MDL No. 1533 (‘ Welding Fume’),] cases all allege that: (1) they inhaled fumes given off by welding rods; (2) these fumes contained manganese; and (3) this manganese caused them to suffer permanent neurological injury and other harm. The Welding Fume plaintiffs name as defendants various manufacturers, suppliers, and distributors of welding rod products, and claim the defendants knew or should have known that the use of welding rods would cause [this damage]. The plaintiffs generally bring claims sounding in strict product liability, negligence, fraud, and conspiracy. The gravamen of the complaints is that the defendants ‘failed to warn’ the plaintiffs of the health hazards posed by inhaling welding fumes containing manganese and, in fact, conspired to affirmatively conceal these hazards from those engaged in the welding process.
“....
“This MDL court has presided over trials of several ‘bellwether cases.’ The instant case, Jerkins v. Lincoln Electric Co., was slated for a bellwether trial in July of 2010. Jerkins named as defendants, among others, four welding rod manufacturers: (1) the Lincoln Electric Company; (2) Hobart Brothers Company; (3) the ESAB Group, Inc.; and (4) Sandvik, Inc. The court refers below to these manufacturers collectively as the ‘Principal Defendants.’
“The claims Jerkins asserted against the Principal Defendants that remained for trial were: (1) [a claim under the] Alabama Extended Manufacturer's Liability Doctrine; (2) negligent failure to warn; (3) wanton failure to warn; and (4) sale of unreasonably dangerous product. Jerkins sought both compensatory and punitive damages.
“Before trial, the Principal Defendants filed a motion for summary judgment, arguing that all of Jerkins' claims were barred by the applicable statutes of limitations. The parties agreed that many relevant facts were not in dispute, including these:
“• Jerkins began welding in 1979.
“• Jerkins' exposure to welding fumes was essentially continuous from 1979 through about 2008.
“• Jerkins filed suit on April 21, 2004.
“There remains a dispute of fact regarding precisely when Jerkins first began to experience symptoms of his alleged neurological injury (and, thus, when the relevant welding fume exposures—that is, those that allegedly caused his injury—occurred). There is some evidence that Jerkins suffered tremors and seizures as early as 2000, and other evidence that these symptoms did not appear until as late as 2003. When this court examined the pretrial record in a light most favorable to Jerkins (as it must when ruling on a motion for summary judgment), the court concluded that a reasonable jury could find Jerkins' symptoms did not manifest until sometime within the two-year period that preceded the date he filed his lawsuit—and, thus, that a reasonable jury could find at least some of the allegedly injury-producing exposures occurred within the limitations period.
“Having reached this conclusion, however, this court was still faced with several issues related to application of the Alabama statutes of limitations. First, the Principal Defendants argued Jerkins was allowed to recover damages attributable only to the exposures he suffered during a two-year limitations period (beginning on April 21, 2002); Jerkins argued he was allowed to recover damages attributable to all of his welding fume exposures, going back to when he started welding in 1979. Second, Jerkins further argued that, even if the Principal Defendants were correct that his damages were limited to exposures he suffered during the limitations period, the applicable period was six years, not two. And finally, even if the Principal Defendants were correct that Jerkins' damages were limited to exposures he suffered during the limitations period, the parties disagreed over whose burden it was to prove what portion of the damage[ ] occurred inside the limitations period.
“....
“In light of the discussion above, the undersigned now certifies the following questions to the Supreme Court of Alabama.
“1. In a case where the plaintiff seeks damages caused by long-term, continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages attributable only to exposures that occurred within the limitations period?
“2. Does the six-year statute of limitations for wantonness claims adopted by the Alabama Supreme Court in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), apply: (1) prospectively to claims that were filed after McKenzie was decided; (2) retroactively to claims that accrued no earlier than two years before McKenzie was decided; or (3) in some other fashion?
“3. If the answer to question 1 is ‘yes,’ does the law of Alabama impose the burden upon the plaintiff or upon the defendant to prove the amount of damage [ ], if any, attributable to exposures that occurred within the applicable limitations period, versus the amount of damage[ ], if any, that [is] attributable to exposures that occurred outside of the applicable limitations period?”
(Footnotes omitted.) By order dated September 20, 2010, we accepted the certified questions, and briefs have been filed by Jerkins, the defendant welding-rod manufacturers, and amici curiae the Business Council of Alabama and the Alabama Defense Lawyers Association.
II.
At the outset, we take the liberty of rephrasing the first question as follows so that the response we give accurately states Alabama law:
In Holcim (US), Inc. v. Ohio Casualty Insurance Co., 38 So.3d 722, 726–27 (Ala.2009), we noted that “this Court will rephrase a question certified to it in order to address the ‘basic issue implicated by th[e] question’ and ‘contemplated by the Court of Appeals in its certification.’ ” (Quoting John Deere Co. v. Gamble, 523 So.2d 95, 99 (Ala.1988).)
1. In a case where the plaintiff seeks damages for injuries caused by long-term continuous exposure to an allegedly toxic substance, does the law of Alabama applicable before Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008), limit the plaintiff to recovery of damages for only those injuries that occurred within the limitations period?
As the MDL court correctly noted in the first certified question, the law that applies to Jerkins's claims is the law that existed in Alabama before this Court's decision in Griffin v. Unocal Corp., 990 So.2d 291 (Ala.2008). In Griffin, this Court overruled decades of caselaw to hold that a cause of action in which damages are sought for injuries sustained as a result of exposure to toxic substances accrues only when a manifest injury stemming from that exposure presents itself. 990 So.2d at 293. Before Griffin, this Court had applied the rule encapsulated in Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), that a cause of action based on exposure to a toxic substance accrues on the date of the last exposure to that toxic substance—even if there is no manifest injury at that time. Although Griffin explicitly overruled Garrett, it also provided that its holding would apply prospectively only, that is, only to those persons whose last exposure to a toxic substance, and first manifest injury resulting from that exposure, occurred within the two-year period before this Court released its opinion in Griffin. Griffin was decided in January 2008; thus, Jerkins's action, filed in April 2004 and based on injuries occurring before that date, is outside the scope of Griffin.
Under 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 (1976). The parties in this case have stipulated that Jerkins's exposure to welding fumes was essentially continuous from 1979 through about 2008, and he filed the underlying action on April 21, 2004. Thus, Jerkins's action is clearly not barred by the statute of limitations, and the fundamental issue is therefore what restriction is placed upon his recovery of damages by pre–Griffin law.
This Court's pre–Griffin caselaw provides ample authority to support the proposition advocated by the defendant welding-rod manufacturers that a party alleging injury as a result of long-term exposure to a toxic substance can recover only damages attributable to injuries that occurred within the relevant limitations period.
This principle has been clearly stated in Garrett, 368 So.2d at 521 (“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.”), as well as Garren, 340 So.2d at 766 (affirming the trial court's judgment in an action where the plaintiff alleged that she had been injured as a result of continuously breathing dust and lint at her workplace over several years and stating that “any damages to which plaintiff might otherwise be entitled could not include those for any injuries suffered by plaintiff more than one year prior to [the date of filing suit]”), and American Mutual Liability Insurance Co. v. Phillips, 491 So.2d 904, 908 (Ala.1986) (holding that the “defendants were entitled to an order limiting plaintiff's potential recovery to damages occurring within the year next preceding the filing of this action” where the action alleged that the plaintiff had been injured by inhaling cotton fibers at the mill where she worked), among other cases.
At least one federal court applying Alabama law has recognized this principle as well. See Cloud v. Olin Corp., 552 F.Supp. 528, 534 (N.D.Ala.1982), (reviewing Garrett, Garren, and other decisions of this Court involving exposure to toxic substances and concluding that “any damages which ‘accrued’ prior to the beginning date of the applicable statute of limitations are barred”).
Jerkins, however, argues that the principle articulated in these cases (1) is contrary to the plain language of the relevant statute of limitations, § 6–2–38( l ), Ala.Code 1975; (2) was rejected by this Court even before Griffin; and (3) is unfair, irrational, and potentially unconstitutional. With regard to Jerkins's final argument, we note that the members of this Court thoroughly reviewed the state of the law with regard to injuries stemming from exposure to toxic substances fairly recently in both Griffin and Cline v. Ashland, Inc., 970 So.2d 755, 761 (Ala.2007). Arguments similar to the arguments now made by Jerkins were made in those cases, and this Court considered the relevant constitutional and public-policy issues in those cases.
In the quoted excerpts from both Garrett and Phillips, this Court used the term “damages”; however, it appears from the context that the term “damage” should have been used. See American Stevedores, Inc. v. Porello, 330 U.S. 446, 450 n. 6, 67 S.Ct. 847, 91 L.Ed. 1011 (1947) (“It might be noted here that there is a distinction between damage and damages. Black's Law Dictionary cautions that the word ‘damage,’ meaning ‘loss, injury, or deterioration,’ is ‘to be distinguished from its plural,—’ damages, ‘—which means a compensation in money for a loss or damage.’ ”). For purposes of clarity we refer in this opinion to injuries occurring within the limitations period and to damages attributable to such injuries. Further, the term “exposure” is not the equivalent of injury. There may be exposure to a substance that does not cause an injury.
As Justice See, concurring specially in Cline, 970 So.2d at 757, stated:
Although Cline was a no-opinion affirmance, Justice See wrote, concurring specially, joined by Chief Justice Nabers and Justice Stuart; Justice Smith wrote, concurring specially, joined by Justice Bolin; and Justice Harwood dissented, joined by Justices Lyons, Woodall, and Parker.
“The determination of when the statute of limitations ought to begin to run in toxic-substance-exposure cases depends on a weighing of competing public policies. We seek in Alabama to compensate those who have been injured. Ala. Const.1901, Art. I, § 13 (‘[T]hat every person, for any injury done him ... shall have a remedy by due process of law; and right and justice shall be administered without sale, denial, or delay.’). On the other hand, we also seek to avoid stale claims and the injustice such claims can engender. Travis v. Ziter, 681 So.2d 1348, 1355 (Ala.1996) (‘At its core, the statute of limitations advances the truth-seeking function of our justice system, promotes efficiency by giving plaintiffs an incentive to timely pursue claims, and promotes stability by protecting defendants from stale claims.’). The proper balance between these competing public policies requires a weighing....”
This Court resolved those issues in Griffin, and we are not now inclined to revisit them, nor are we inclined to accept Jerkins's invitation to reconsider the prospective application of Griffin. His first two arguments, however, are discussed in more detail below.
Section 6–2–38( l ) provides that “[a]ll actions for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section must be brought within two years.” Jerkins argues that the plain language of this statute imposes no limitation on damages and that this Court is therefore prohibited from reading such a limitation into the statute. See Ex parte Carlton, 867 So.2d 332, 338 (Ala.2003) (“[T]his Court is not at liberty to rewrite statutes or to substitute its judgment for that of the Legislature.”). Therefore, he argues, he is entitled to recover damages for injuries that occurred even outside the limitations period. We disagree; as this Court explained in Cazalas v. Johns–Manville Sales Corp., 435 So.2d 55, 57 (Ala.1983), such a limitation on damages is implicit in any statute of limitations.
In Cazalas, this Court considered the effect of § 6–2–30(b), Ala.Code 1975, which was enacted by the legislature following this Court's decision in Garrett and which expressly provided that all actions arising out of exposure to asbestos were not deemed to have accrued until “the first date the injured party, through reasonable diligence, should have reason to discover the injury giving rise to such civil action.” After the Mobile Circuit Court subsequently held that 25 individuals suing based on injuries received as a result of exposure to asbestos were limited in the damages they were entitled to recover to those exposure-caused damages occurring within one year of the filing of their action, this Court reversed that judgment and held that the plaintiffs were entitled to recover for all injuries proximately caused by exposure to asbestos, stating:
“The trial court's ruling stems from a misunderstanding of the continuing tort rule of damages. While a plaintiff in a negligence action is typically limited to damages for injuries incurred within one year of filing suit, the rule does not, as the trial court suggested, operate independently of the statute of limitations. To the contrary, it is a function of the statute of limitations. Under § [6–2–30], the plaintiff is entitled to recover all damages which proximately flowed from his injury if his action is brought within the statutory period of limitations, notwithstanding Commercial Union Assurance Co. v. Zurich American Ins. Co., 471 F.Supp. 1011, 1015 (S.D.Ala.1979); Garrett v. Raytheon Co., 368 So.2d 516, 521 (Ala.1979); American Mutual Liability Ins. Co. v. Agricola Furnace Co., 236 Ala. 535, 538, 183 So. 677, 679 (1938).”
435 So.2d at 57. Jerkins's claims, however, are not asbestos-related claims subject to § 6–2–30; rather, his claims are subject to the statute of limitations set forth in § 6–2–38( l ) and, as Cazalas indicates, an implicit “function” of that statute of limitations is that Jerkins is now limited to seeking damages attributable to injuries that occurred within the period of limitations.
Jerkins next argues that this Court has rejected the holding reaffirmed in Garrett that “recovery for a continuous tort could be had only for those damages which occurred within the period of limitations,” 368 So.2d at 521, even before Griffin was decided, most notably in Hillis v. Rentokil, Inc., 596 So.2d 888 (Ala.1992). In Hillis, a lumber-company employee alleged that he had been injured as a result of prolonged exposure to chromated copper arsenate (“CCA”) during the course of his employment from September 1985 to December 31, 1987. The employee had been treated for maladies he later attributed to CCA in July 1986 and August 1987; however, it was not until September 25, 1987, that he was advised by his primary physician to visit a dermatologist because of an allergic reaction to CCA. He then continued to work at the lumber company until his employment was terminated on December 31, 1987, and, on November 15, 1989, he filed an action seeking damages for injuries allegedly suffered as a result of his exposure to CCA. The defendants thereafter moved for a summary judgment, arguing that the employee's action was barred by the two-year statute of limitations because he was aware of his injuries by, at the latest, September 25, 1987—when his physician referred him to a dermatologist—yet he did not file his complaint until November 15, 1989. The trial court granted the motion and entered a summary judgment; however, this Court subsequently reversed that judgment, stating:
“According to Garrett v. Raytheon Co., 368 So.2d 516 (Ala.1979), and American Mutual Liability Insurance Co. v. Phillips, 491 So.2d 904 (Ala.1986), the statutory period of limitations for a continuous tort begins to run from the ‘date of injury.’ The ‘date of injury’ for statute of limitations purposes is ‘the day on which the plaintiff was last exposed to the damage [ ].’ Garrett, 368 So.2d at 520. In this case, the last day [the plaintiff] was exposed to CCA was December 31, 1987, the date he was terminated from his job. Because [the plaintiff] filed this action on November 15, 1989, his tort claims were not barred by the statute of limitations.”
596 So.2d at 890. Thus, the plaintiff in Hillis was considered to have been injured both within and outside the limitations period, yet, Jerkins argues, this Court made no distinction between those injuries and placed no limitations on the damages available to him, stating only that “his tort claims were not barred by the statute of limitations.” Id. The defendant welding-rod manufacturers acknowledge that Hillis was correctly decided because the injuries the plaintiff suffered from November 15, 1987, through his termination on December 31, 1987, did, in fact, occur within the limitations period; however, they argue that the Court failed to expressly limit his damages to injuries occurring after November 15, 1987, merely because such a limitation was implicitly understood by all the parties. We agree. If Hillis did, in fact, effect a sea change in this area of law and overrule at least to some extent Garrett and its progeny, as Jerkins now argues, it would have done so explicitly. See Liberty & Prosperity 1776, Inc. v. Corzine, 720 F.Supp.2d 622, 629 (D.N.J.2010) (“The Supreme Court would not have made such a sweeping change to the law by implication.”). The rule limiting the recovery of damages to those resulting from injuries occurring within the period of limitations was not changed between this Court's release of its opinion in Garrett and its release of the opinion in Griffin; thus we must answer the first certified question in the affirmative.
III.
The second certified question concerns the MDL court's application of McKenzie v. Killian, 887 So.2d 861 (Ala.2004), to Jerkins's wantonness claims. In McKenzie, this Court overruled Sasser v. Dixon, 290 Ala. 17, 273 So.2d 182 (1973), and succeeding cases and held that wantonness claims are subject to the six-year statute of limitations set forth in § 6–2–34(1), Ala.Code 1975, as opposed to the two-year statute of limitations set forth in § 6–2–38( 1 ). 887 So.2d at 870. The MDL court now seeks guidance as to whether McKenzie should be applied (1) prospectively to claims filed after McKenzie was decided; (2) retroactively to claims that accrued no earlier than two years before McKenzie was decided; or (3) in some other fashion.
This Court recently reconsidered McKenzie in Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] ––– So.3d ––––, –––– (Ala.2011),
and held that that case had been erroneously decided, concluding:
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012).
“[W]e overrule McKenzie to the extent that it holds that a claim of wantonness falls within the six-year statute of limitations now found in § 6–2–34(1). We once again reaffirm the proposition that wantonness claims are governed by the two-year statute of limitations now embodied in § 6–2–38( 1 ).”
We also stated, however, that, for reasons of equity and justice, our holding should not be applied retroactively so as to “deprive [affected parties] of a vested right without granting them any opportunity to preserve it.” ––– So.3d at ––––.
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. The substituted opinion contains the same quoted material. See Ex parte Capstone Bldg. Corp., 96 So.3d 77, 88 (Ala.2012).
We accordingly provided the following instruction on how to apply our holding in Ex parte Capstone to other litigants:
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. The substituted opinion does not contain the quoted material.
“The above-discussed principles require that we not apply our ruling today retroactively so as to immediately cut off the claims of persons who have been wantonly injured within the last six years and who therefore have been entitled to rely upon the rule this Court announced in McKenzie. Thus, for a person as to whom the six-year limitation period previously announced by this Court will, under the rule announced today, expire on a date less than two years from today's date, we conclude that it is just and equitable that the limitations period not be affected by today's decision. For a person whose limitation period would expire more than two years from today, however, equity does not require that that person have more time to bring their action than would a party whose cause of action accrues on the date of this decision. In other words, as a result of our holding, litigants whose causes of action have accrued on or before the date of this decision shall have two years from today's date to bring their action unless and to the extent that the time for filing their action under the previously announced six-year limitations period would expire sooner.”
––– So.3d at ––––. Jerkins and any other Alabamians with wantonness claims now pending before the MDL court filed those claims before McKenzie was overruled by Ex parte Capstone. Applying the prospective nature of our decision in Ex parte Capstone to their cases, we accordingly conclude that a six-year period of limitations should apply to those wantonness claims. Whether the wantonness claims of other individuals are subject to the two-year or six-year statute of limitations should therefore be determined based on whether those claims were asserted pre- or post- Ex parte Capstone.
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. Although the phrasing in the quoted material is slightly different in the substituted opinion, the substance remains the same. See Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012).
IV.
Having established in our answer to the first certified question that Jerkins is limited to recovering damages only for those injuries occurring within the limitations period, we must also consider the final issue raised by the MDL court: whether the burden falls upon Jerkins or the defendant welding-rod manufacturers to prove what injuries occurred within the applicable six-year limitations period. In Johnson v. Harrison, 404 So.2d 337, 340 (Ala.1981), this Court stated the general principle regarding which party bears the burden of proving damages:
“The rule has long been established that the party claiming damages has the burden of establishing the existence of and amount of those damages by competent evidence. Smith v. Richardson, 277 Ala. 389, 171 So.2d 96 (1965). The award of damages cannot be made upon speculation, and the plaintiff has the burden of offering evidence tending to show to the required degree, the amount of damages allegedly suffered. Great American Insurance Co. v. Railroad Furniture Salvage of Mobile, Inc., 276 Ala. 394, 162 So.2d 488 (1964).”
This principle would appear to place the burden upon Jerkins to prove what damages he is entitled to recover as a result of injuries occurring within the applicable six-year limitations period; however, Jerkins argues that the defendant welding-rod manufacturers' assertion of the statute of limitations as an affirmative defense shifts that burden to them because they must prove each element of that defense. See Lands v. Lull Int'l, Inc., 963 So.2d 626, 629 (Ala.2007) (stating that the burden is on the party moving for a summary judgment on the basis of the statute of limitations to establish that there was no genuine issue of material fact as to any element of that defense). This argument is misguided, however, because a plaintiff's damages are never an element of an asserted defense—affirmative or otherwise; rather, as stated above, it is the plaintiff's responsibility to prove damages.
Moreover, this Court has previously considered the issue raised by the third certified question and has held that the burden of proving what damages are recoverable remains with the plaintiff even when some of the plaintiff's claims have been determined to be time-barred. In Chatham v. CSX Transportation, Inc., 613 So.2d 341 (Ala.1993), this Court considered a railroad employee's claim for damages based on a hearing loss he allegedly suffered as a result of years spent working in the train yard. We held that the employee could not recover for injuries that occurred outside the three-year limitations period set forth in the Federal Employers' Liability Act, which governed his claims, but that he could “claim damages for aggravation of his hearing loss if he [could] show a deterioration in his hearing caused by his work environment during the three years before he filed this action....” 613 So.2d at 346 (emphasis added). The United States District Court for the Northern District of Alabama likewise recognized this principle in Cloud v. Olin Corp., 552 F.Supp. 528, 534 n. 14 (N.D.Ala.1982), when, after stating that the plaintiff could recover damages for mental anguish associated with his timely—but not his untimely—claims, stated that “[t]he burden will be on plaintiff, at the trial, to establish such reasonable separation.” Accordingly, we hold that a plaintiff injured by long-term continuous exposure to a toxic substance bears the burden of proving what injuries he suffered within the limitations period as a result of his exposure to that substance and what the appropriate damages for those injuries should be.
V.
The MDL court certified three questions to this Court pursuant to Rule 18, Ala. R.App. P. Our answer to those questions may be summarized as follows:
1. A plaintiff injured by long-term continuous exposure to a toxic substance is limited to recovering damages attributable to injuries occurring within the period of limitations.
2. In Ex parte Capstone, this Court overruled McKenzie to the extent it held that wantonness claims are subject to a six-year statute of limitations. However, we also declined to apply that holding retroactively. A six-year limitations period therefore applies to wantonness claims filed before Ex parte Capstone was released.
3. A plaintiff injured by long-term continuous exposure to a toxic substance bears the burden of establishing what damages, if any, are attributable to injuries occurring within the limitations period as opposed to injuries occurring outside that limitations period.
QUESTIONS ANSWERED. WOODALL, BOLIN, PARKER, MURDOCK, SHAW, MAIN, and WISE, JJ., concur.
COBB, C.J., concurs in part and dissents in part.
COBB, Chief Justice (concurring in part and dissenting in part).
I concur in those parts of the majority opinion that do not rely on the holding and rationale of Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] ––– So.3d –––– (Ala.2011).
With respect to Part III of the opinion, which does rely on Ex parte Capstone, I respectfully dissent.
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012).
On Application for Rehearing
STUART, Justice.
APPLICATION OVERRULED. NO OPINION. MALONE, C.J., and WOODALL, BOLIN, PARKER, MAIN, and WISE, JJ., concur.
MURDOCK and SHAW, JJ., concur specially.
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 on original submission to the first certified question in this case and, (2) with respect to our answer to the second certified question, to address certain concerns 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....”
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 to injuries occurring within the period of limitations.” 103 So.3d at 11. A more careful review of 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.
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 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.” 368 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.
Moreover, my consideration of the present case has brought to my attention 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 from injuries occurring within the limitations period. 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 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 the 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).
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.
The main opinion on original submission stated:
“Under 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).”
103 So.3d at 5. 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.’ ”
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. Const. 1901, between the ability of the legislature, by lengthening a statute of limitations, 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 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. In particular, as the main opinion on original submission observed, 103 So.3d at 7 (quoting Cazalas, 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 “reviving” an “otherwise time-barred claim” placed some limit on the Court's holding in McKenzie v. Killian, 887 So.2d 861 (Ala.2004), that a six-year limitations period was applicable to 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.” (Emphasis added.) I see nothing in this language that requires us to 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 judicial review.
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).”
103 So.3d at 16 (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.
It is correct, as the welding-rod manufacturers argue on rehearing, that McKenzie was “wrongly decided.” Nonetheless, it was decided. It thereby became the “law of the land.” And it remained so until it was overruled in Ex parte Capstone Building Corp., [Ms. 1090966, June 3, 2011] –––So.3d –––– (Ala.2011).
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012).
This Court's bias in favor of retroactive application of judicial decisions, based on the declaratory theory of judicial review, has been explained as follows:
“ ‘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 functionof 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. 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 Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 370–71, 109 S.Ct. 2506, 105 L.Ed.2d 298 (1989) (quoting Prentis v. Atlantic Coast Line Co., 211 U.S. 210, 226, 29 S.Ct. 67, 53 L.Ed. 150 (1908)). This difference is the reason for § 95.
SHAW, Justice (concurring specially).
I concur to overrule the application for rehearing. However, I write specially to acknowledge the concerns expressed on rehearing by the defendant 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 to the two-year limitations bar that predated McKenzie. 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.’ ( 103 So.3d at 9,Jerkins v. Lincoln Elec. Co., 103 So.3d 1 (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.
Note from the reporter of decisions: On March 16, 2012, the Alabama Supreme Court withdrew the June 3, 2011, opinion in Capstone and substituted another one. See Ex parte Capstone Bldg. Corp., 96 So.3d 77 (Ala.2012).
“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 beforethe 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 challenge this Court's answer to the first certified question, which was summarized in the instant opinion on original submission as follows: “A plaintiff injured by long-term continuous exposure to a toxic substance is limited to recovering damages attributable to injuries occurring within the period of limitations.” 103 So.3d at 11. 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 curiae argue generally that any application of McKenzie so as to revive a wantonness claim that 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 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 least in certain instances, § 95 would not necessarily restrict the applicable period of recovery for damages concomitant with a new limitations period. 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.” 435 So.2d at 57. This Court did not address this issue on original 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 multi-district 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 be representative of other Alabamians with wantonness claims now pending before the MDL court. Jerkins's action was filed after this Court's decision in 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 submission that his action was clearly not time-barred. 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.