                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2004-IA-01091-SCT

PPG ARCHITECTURAL FINISHES, INC.

v.

MELISSA LOWERY AND ANIMAL EMERGENCY
CLINIC, P. A.


DATE OF JUDGMENT:                          05/20/2004
TRIAL JUDGE:                               HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   MARK W. GARRIGA
ATTORNEYS FOR APPELLEES:                   SHEILA M. BOSSIER
                                           RICHARD ARTHUR FREESE
                                           ALEXANDRA FRANCOISE MARKOV
                                           BARRY DOUGLAS HASSELL
                                           MICHAEL WAYNE BAXTER
                                           ROBERT LOUIS GOZA
NATURE OF THE CASE:                        CIVIL - TORT
DISPOSITION:                               REVERSED AND RENDERED - 08/18/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       BEFORE SMITH, C.J., DICKINSON AND RANDOLPH, JJ.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    On June 12, 2000, Melissa Lowery filed suit in Madison County Circuit Court against

Animal Emergency Clinic, P.A. (AEC), her former employer, and Aaron D. Massey Painting

(Massey), a/k/a Madison Paints, Inc.   In the complaint Lowery alleged that AEC negligently

required her to work in an unsafe environment and that Massey negligently used a type of paint
that emitted extraordinarily dangerous fumes and failed to warn Lowery of the consequences,

possible side effects and long term damages which could result from exposure.

¶2.     After losing consciousness, Lowery was treated at St. Dominic Hospital where she

informed the medical staff about her exposure to the paint fumes.        However, it was not until

several years later that Lowery received definitive medical confirmation that her illness had

been caused by the exposure to paint fumes. Lowery then filed an amended complaint joining

PPG Architectural Finishes, Inc. (PPG) alleging products liability.        PPG filed a motion for

summary judgment arguing that Lowery’s claims were barred by the statute of limitations. The

circuit court denied PPG’s summary judgment motion but granted its              motion for certification

of interlocutory appeal and stay of the proceedings.       In turn, we granted PPG permission to

bring this appeal. See M.R.A.P 5.

¶3.     We find that the trial court erred as Lowery and the clinic clearly knew or reasonably

should have known of her exposure to paint fumes on the very night it occurred. The statute

of limitations barred Lowery’s action against PPG and summary judgment for PPG was

appropriate. We, therefore, reverse and render.

                            FACTS AND PROCEDURAL HISTORY

¶4.     Melissa Lowery reported to work at the Animal Emergency Clinic in Jackson,

Mississippi, on the night of October 1, 1999.         Immediately upon entering the Clinic, Lowery

noticed wet paint throughout the building and was aware that the Clinic was to be painted that

week.   According to Lowery, the strong odor of the paint immediately caused her to become

concerned so she telephoned her boss at home.            Lowery claims that after three hours of




                                                  2
inhaling paint fumes she became disoriented, sick and began to have trouble with her memory.

Furthermore, the clinic’s dog developed bloodshot eyes and began vomiting bile.

¶5.    Lowery eventually went to the attic to retrieve a label from one of the paint cans and

identified it as “Porter Glyptex Enamel” and telephoned the Mississippi Regional Poison

Control Center to report the problems they were experiencing. Lowery’s symptoms persisted,

and she became sick and passed-out from the exposure. She was taken to the Emergency Room

at St. Dominic Hospital where she complained of headache, nausea and throat irritation from

exposure to paint fumes.       The attending physician’s clinical impression at the time was

chemical exposure. Lowery returned to the emergency room three days later, and the attending

physician’s impression was then toxin exposure.        Lowery visited several doctors complaining

that she was experiencing neurological problems severe enough to hamper her ability to study,

write or take notes in her college classes.           Her list of symptoms included: dizziness,

confusion, short term memory loss, headaches, seizures, disorientation while driving, vertigo

during sex, and tachycardia and shortness of breath on exertion.         The doctor concluded that

Lowery was suffering from cerebral symptoms as a result from exposure to toxic fumes.

¶6.    Lowery filed a claim for disability benefits under the Social Security Act in December

of 1999.   On June 12, 2000, Lowery filed this suit in Madison County Circuit Court claiming

permanent brain injury as the result from her October 1, 1999, incident. Lowery named her

employer, Animal Emergency Clinic, P.A. (“AEC” or “Clinic”), and Aaron Massey Painting

(Massey), a painting contractor, as defendants. Over the course of three and a half years the

parties engaged in discovery and had set a trial date for December 2, 2003. On October 27,

2003, the trial court entered an order allowing Lowery to file an amended complaint.           On


                                                  3
November 13, 2003, Lowery filed an amended complaint naming PPG Architectural Finishes,

Inc. (PPG) as a defendant.           AEC immediately filed a cross-claim against PPG for indemnity

and contribution.          PPG filed an answer asserting the statute of limitations as an affirmative

defense.

¶7.       PPG’s motion for summary judgment was denied by the trial court.               The trial judge

concluded that there was a genuine issue of fact as to when Lowery “knew” that she had

permanent brain damage. PPG raised the following issues on appeal:

          1.           IS THE DISCOVERY RULE PROPERLY APPLIED TO A CAUSE OF ACTION
                       THAT DOES NOT INVOLVE LATENT INJURY OR DISEASE?

          2.           IS “DEFINITIVE M EDICAL CONFIRMATION” REQUIRED BEFORE A
                       PERSONAL INJURY CAUSE OF ACTION ACCRUES ?

          3.           DOES THE CIRCUIT COURT’S RULING EFFECTIVELY SPLIT THE
                       PLAINTIFF’S CAUSE OF ACTION?

          4.           CAN A VALID CROSS-CLAIMFOR INDEMNITY EXIST IF THE PLAINTIFF’S
                       STATUTE OF LIMITATIONS HAS RUN AGAINST THE CROSS-DEFENDANT
                       AND THE CROSS-PLAINTIFF IS CHARGED WITH ACTIVE CONDUCT?

                                                ANALYSIS

¶8.       This Court has consistently held that review for summary judgment is de novo. Hurdle

v. Holloway, 848 So.2d 183, 185 (Miss. 2003); Miller v. Meeks, 762 So.2d 302, 304 (Miss.

2000); Crain v. Cleveland Lodge 1532, 641 So.2d 1186, 1188 (Miss. 1994). A summary

judgment motion is only properly granted when no genuine issue of material fact exists.             Id.

at 304; Miss. R. Civ. P. 56(c).           The moving party has the burden of demonstrating that no

genuine        issue    of material fact exists within the    “pleadings, depositions,    answers    to

interrogatories, and admissions on file, together with the affidavits.” Id.; see also Davis v.



                                                     4
Hoss, 869 So.2d 397, 401 (Miss. 2004) (noting that the court should review all evidence

available to it when making its decision); Anglado v. Leaf Forest Prods., Inc., 716 So.2d 543,

547 (Miss. 1998).

        I & II. WHETHER THE DISCOVERY RULE IS PROPERLY APPLIED IN A CAUSE OF
                ACTION NOT INVOLVING LATENT INJURY OR DISEASE AND WHETHER A
                DEFINITE DIAGNOSIS IS REQUIRED BEFORE A PERSONAL INJURY CAUSE
                OF ACTION ACCRUES .

                A. Historical Review of the Discovery Rule

¶9.     Miss. Code Ann. § 15-1-49(2) (Rev. 2002) provides for a special exception to the

standard three-year statute of limitations for “latent injury or disease.”   In its most simplistic

form, if aggrieved persons do not know of their injury the statute of limitation does not begin

running until they “can reasonably be held to have knowledge of the injury or disease.” Owens-

Illinois, Inc. v. Edwards, 573 So.2d 704, 709, 1052-53 (Miss. 1990). Early on this Court

explained the existence of the “discovery rule” in medical malpractice suits but did not fully

expound upon its applicability in other areas of law. Smith v. Sanders, 485 So.2d 1051 (Miss.

1986). In Edwards this Court promulgated that the “discovery rule exists in conjunction with

§ 15-1-49 (1972) in the case of negligence or products liability cause of action involving

latent disease.” Edwards, 573 So.2d at 709. This Court reasoned that it would be illogical to

prevent plaintiffs from obtaining relief if their injuries were not discoverable until after the

statute of limitations had passed. Id.

¶10.    The discovery rule’s application has been greatly expanded over time.       See Barnes v.

Singing River Hosp. Sys., 733 So.2d 199 (Miss. 1999) (Mississippi Tort Claims Act);

Georgia Pacific Corp. v. Taplin, 586 So.2d 823 (Miss. 1991) (workers compensation);


                                                5
Staheli v. Smith, 548 So.2d 1299 (Miss. 1989) (defamation). At issue in all cases however,

is when the plaintiff discovers their injury or disease. Sweeney v. Preston, 642 So.2d 332,

334 (Miss. 1994) (quoting Williams v. Kilgore, 618 So.2d 51, 55 (Miss. 1992)). In Sweeney

this Court noted that, “knowledge that there exists a causal relationship between the negligent

act and the injury or disease complained of is essential because ‘it is well-established that

prescription does not run against one who has neither actual nor constructive notice of the

facts that would entitle him to bring an action.’” Id. (emphasis added).      Whether the plaintiff

knew about the injury has typically been reserved as a jury question. Barnes, 733 So.2d at

205; Edwards, 573 So.2d at 709.

¶11.   This Court has cautioned that the discovery rule should only be applied in “limited

circumstances in [] negligence and products liability case[s] involving latent injury.”     Schiro

v. Am. Tobacco Co., 611 So.2d 962, 964 (Miss. 1992); Edwards, 573 So.2d at 707.

Implicitly then, this Court has held that if a latent injury is not present the discovery rule would

not apply. Chamberlain v. City of Hernando, 716 So.2d 596, 602 (Miss. 1998).

               B. Latent Injury

¶12.   A latent injury is defined as one where the “plaintiff will be precluded from discovering

harm or injury because of the secretive or inherently undiscoverable nature of the wrongdoing

in question...[or] when it is unrealistic to expect a layman to perceive the injury at the time of

the wrongful act.”    Donald v. Amoco Prod. Co., 735 So.2d 161, 198 (Miss. 1999) (citing




                                                 6
Staheli, 548 So.2d at 1303; Smith v. Sneed, 638 So.2d 1252, 1257 (Miss. 1994)). Herein lies

the conflict presented sub judice.

¶13.      It is well established that this Court must review a statute through common use of words

and meanings. Perkins v. State, 863 So.2d 47 (Miss. 2003) (citing Cassibry v. State, 404

So.2d 1360, 1368 (Miss. 1981) (following Roth v. United States, 354 U.S. 476, 77 S. Ct.

1304, 1 L. Ed.2d 1498 (1957)). Miss. Code Ann. § 15-1-49(2) states “[i]n actions for which

no other period of limitation is prescribed and which involved latent injury or disease, the

cause of action does not accrue until the plaintiff has discovered, or by reasonable diligence

should have discovered, the injury.” Miss. Code Ann. § 15-1-49(2).

¶14.      A review of this Court’s prior rulings also provides insight into the statute’s

interpretation.   The term “latent injury” while seemingly vague does have definitive boundaries.

For an injury to be latent it must be undiscoverable by reasonable methods. Donald, 735 So.2d

at 198.     For instance this Court has noted that some plaintiffs may require access to medical

records to discover the injury.      Sarris v. Smith, 782 So.2d 721, 725 (Miss. 2001). While

others might gain enough actual knowledge through personal observation or experience.

Robinson v. Singing River Hosp., 733 So.2d 204, 208 (Miss. 1999). Some injuries may be

indiscernible until a medical expert notifies the plaintiff of possible negligence.    Barnes v.

Singing River Hosp. Sys., 732 So.2d at 206. Because there is no bright line rule, the specific

facts of the case will determine whether the plaintiff knew or reasonable should have known

that an injury existed. Sweeney v. Preston, 642 So.2d at 336. ¶15.         The facts surrounding

Lowery’s exposure for this interlocutory appeal are not in dispute.       Rather, the question is



                                                 7
whether Lowery’s own suspicions and actions thereon were enough to vest the right to a cause

of action against PPG.       If Lowery’s cause of action accrued when she originally knew or

suspected, then the statute of limitations began running upon the occurrence of her injury.

¶16.    By her own admission, Lowery knew when, how and by whom she had been injured on

the night of her acute exposure.        The Court must consider Lowery’s actions in determining

whether she “knew” or “reasonably should have known” that she had suffered an injury. For

instance, seeking medical attention for side effects or symptoms confirms that Lowery

“knew” she was injured.         In Powe, this Court found that a plaintiff’s receipt of medical

treatment for two years demonstrated that he knew or reasonably should have known about his

injuries. Powe v. Byrd, 892 So.2d 223, 227-28 (Miss. 2004). Moreover, in Powe this Court

specifically rejected his claim that the statute of limitations began running when he received

an expert opinion because Powe had known of his injury as evinced by the two years of prior

medical treatment for the injury.     Id. While Powe is a medical malpractice claim and subject

to different statutes with different requirements the holding is still particularly relevant to the

case sub judice.

¶17.    Several recent decisions further erode the level of knowledge required to vest a cause

of action.   This Court commented that a plaintiff “knew or reasonably should have known that

some negligent conduct had occurred, even if they did not know with certainty that the

conduct was negligent as a matter of law.” Wayne Gen. Hosp. v. Hayes, 868 So.2d 997, 1000

(Miss. 2004) (emphasis added); Sarris v. Smith, 782 So.2d at 725 (holding that a plaintiff need

not know with absolute certainty that conduct was legally negligent).              This Court has also

explained that the “focus is on the time that the patient discovers, or should have discovered

                                                    8
by the exercise of reasonable diligence, that he probably has an actionable injury.”        Wright

v. Quensel, 876 So.2d 362, 366 (Miss. 2004) (quoting Smith v. Sanders, 485 So.2d 1051,

1052 (Miss. 1986)) (emphasis added).

¶18.    Considering Lowery’s actions through the lense of this Court’s recent rulings we hold

that Lowery “knew” of her injury on October 1, 1999. Moreover, using the standards outlined

in Hayes, Quensel and Sanders, Lowery did not require absolute certainty nor an expert

opinion to vest the right to a cause of action under this state’s products liability statute.   See,

e.g. Quensel, 876 So.2d at 366; Hayes, 868 So.2d at 1000; Sanders, 485 So.2d at 1052.

¶19.    Lowery’s initial call to the Regional Poison Control Center and her subsequent visits

to the emergency room identified the source of her exposure as “Porter Glyptex Enamel

Paint.” Sufficient evidence exists, undisputed or admitted at present, that the AEC was painted

with Porter Glyptex Enamel Paint.       Lowery suffered immediate complications as a result of

her acute exposure requiring her to go to an emergency room for treatment.                  Medical

professionals, during the course of Lowery’s treatment, listed exposure to Porter Glyptex

Enamel Paint as Lowery’s alleged cause of injury.       PPG admits that Porter Glyptex Enamel

Paint contains a warning which reads, “Vapor harmful, may affect the brain or nervous

system...Do not breath vapors or spray mist.” We conclude that the trial court erred, and we

must reverse and render on this issue

¶20.    Because issues I and II are controlling and decided in PPG’s favor, the other issues are

moot and will not be addressed.

                                         CONCLUSION




                                                 9
¶21.   Based upon our holdings in Hayes, Quensel and Sanders, we conclude that the trial

court erred.    Therefore, we reverse the trial court’s judgment denying PPG’s motion for

summary judgment and we render judgment in favor of PPG.

¶22.   REVERSED AND RENDERED.

    WALLER AND COBB, P.JJ., EASLEY, CARLSON, DICKINSON AND
RANDOLPH, JJ., CONCUR.       GRAVES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. DIAZ, J., NOT PARTICIPATING.




                                              10
