                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                            September 30, 2002 Session

          BILLY ALLAN BRASWELL, et ux. v. AC and S, INC., et al.

BILLY ALLAN BRASWELL                                                        NATIONAL SERVICE
NANNIE MAE BUNTON                                                           INDUSTRIES, INC.
HENRY L. BALES

Appellees                                                                                  Appellant


                  Direct Appeal from the Circuit Court for Knox County
    Nos. 2-616-91; 3-291-95, and 3-832-91 Hon. Wheeler A. Rosenbalm, Circuit Judge

                                       FILED DECEMBER 19, 2002

                                  No. E2002-00093-COA-R9-CV



The Trial Court allowed plaintiff to add seller as party to products liability action more than one year
after injury and denied seller summary judgment on defense of the statute of limitations. We affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Circuit Court Affirmed.

HERSCHEL PICKENS FRANKS , J., delivered the opinion of the court, in which HOUSTON M. GODDARD ,
P.J., and CHARLES D. SUSANO, JR., J., joined.


Hugh B. Bright, Jr., Michael J. King, and Robert L. Vance, for Appellant, National Service,
Industries, Inc.

Mike G. Nassios, Timothey M. McLaughlin and Robert S. Patterson, Knoxville, Tennessee, for
Appellees, Billy Allan Braswell, Nannie Mae Bunton and Henry L. Bales.



                                              OPINION



                In this products liability action the plaintiff sued the manufacturer, alleging that he
was injured by exposure to asbestos. Subsequent to bringing the action, the manufacturer was
judicially declared insolvent, after one year had expired for bringing the action. Pursuant to Tenn.
Code Ann. §29-28-106(b), the Trial Court permitted plaintiff to amend his complaint and add
defendant, the seller of the product, and refused to grant the defendant summary judgment on the
grounds that the statute of limitations had run. We granted defendant’s application for permission
to appeal, pursuant to Rule 9, Tenn. R. App. P.

                These three cases were consolidated for purposes of appeal, to determine whether the
plaintiffs may maintain a cause of action in strict tort against a seller who was not sued within the
original statute of limitations time period. It is not disputed that the original complaints against the
manufacturers were filed within one year of each plaintiffs’ discovery of a medical condition
allegedly caused by exposure to asbestos.

               Defendant Owens-Corning Fiberglass, the manufacturer, filed a voluntary petition
in bankruptcy on October 5, 2000, which plaintiffs relied on in adding the seller as a party defendant.
In denying defendant’s Motion for summary Judgment, the Trial Court ruled that the limitation
period against the seller did not begin to run until the manufacturer was adjudicated bankrupt.

                The applicable statutes are as follows:

                T.C.A. 29-28-103. Limitation of actions.– Exception– (a) Any action against a
                manufacturer or seller of a product for injury to person or property caused by its
                defective or unreasonably dangerous condition must be brought within the period
                fixed by §§ 28-3-104, 28-3-105, . . .

                T.C.A. 28-3-104. Personal tort actions.–(a) The following actions shall be
                commenced within one (1) year after the cause of action accrued:
                (1) Actions for . . .injuries to the person. . .
                ...
                (b) For the purpose of this section, in products liability cases:

                        (1) The cause of action for injury to the person shall accrue on the date of the
                personal injury, not the date of the negligence or the sale of a product;
                        (2) No person shall be deprived of the right to maintain a cause of action until
                one (1) year from the date of the injury; and
                        (3) Under no circumstances shall the cause of action be barred before the
                person sustains an injury.

                T.C.A. 29-28-106. Seller’s liability.

                (b) No “product liability action,” as defined in § 29-28-102(6), when based on the
                doctrine of strict liability in tort, shall be commenced or maintained against any seller
                of a product which is alleged to contain or possess a defective condition unreasonably


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               dangerous to the buyer, user or consumer unless the seller is also the manufacturer
               of the product or the manufacturer of the part thereof claimed to be defective, or
               unless the manufacturer of the product or part in question shall not be subject to
               service of process in the state of Tennessee or service cannot be secured by the long-
               arm statutes of Tennessee or unless such manufacturer has been judicially declared
               insolvent.

              The issue before us involves a question of law which is reviewed as de novo with no
presumption of correctness of the lower court’s conclusions of law. Union Carbide Corp. v.
Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

                 The legislative history of the Tennessee Products Liability Act of 1978, T.C.A. §29-8-
101, et seq., as it relates to T.C.A. §29-28-106(b), was reviewed in Seals v. Sears Roebuck and Co.
et al., 688 F. Supp. 1252; 1988 U.S. Dist., LEXIS 6014. The Court said:

               The complete abrogation of strict liability against sellers was met with considerable
               hostility by numerous members of the Tennessee Senate. . . . An amendment was
               twice offered to add an exception to the elimination of seller strict liability where the
               manufacturer was not amenable to service of process or was insolvent. One of the
               principal sponsors of the Act, Senator Blank, opposed this amendment and
               characterized it as follows:

                       [What this amendment is saying is] you don’t get to sue the seller if the
                       manufacturer’s got money, but if the manufacturer doesn’t have money then
                       you sue the seller. . . . basically what we’re doing here is kinda like saying
                       you can sue so and so if the other fellow doesn’t have the money. . . . I don’t
                       think that this particular amendment makes much sense or much logic
                       because really all you’re saying is, folks if you can’t get the money off one,
                       we’re gonna let you have a shot at the other {**7} one. . . .

                       . . . A proponent of the amendment, Senator White, indicated that it was
                       designed to protect consumers . . . :
                               All you’re saying is if the child in Tennessee or the citizen of
                       Tennessee is injured by a product manufactured by somebody, no matter
                       where they are, well . . . no matter where the manufacturer is, if he’s
                       insolvent, and manufacturers go out of business every day, people go in
                       business and they don’t make it, if Sears & Roebuck buys a product from a
                       manufacturer that is bankrupt, why should you tell the person injured in
                       Tennessee that you can’t recover, you can’t recover because that
                       manufacturer is no longer solvent. Why shouldn’t Sears & Roebuck in a case
                       like that be liable, strictly liable for putting that defective product on the
                       market[?]. I think it’s a very reasonable amendment.



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The opinion goes on to state that the next day a similar, but not identical in form, amendment passed
by the Tennessee Senate and then became law.

                At the time the General Assembly enacted T.C.A. §29-28-106(b), its members were
aware that the ultimate determination of whether the manufacturer could be brought before the Court
by service of process could possibly be beyond the one year limitation, and certainly, the
manufacturer’s adjudication in bankruptcy could occur after the limitation period had expired. The
General Assembly is presumed to know the existing law in this State at the time legislation is
enacted. Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994); Constantine v. Miller Industries,
Inc., 33 S.W.3d 809 (Tenn. Ct. App. 2000). The General Assembly in enacting the statute intended
to ensure that the injured consumer could maintain a strict liability action against whomever was
most likely to compensate plaintiff for his or her injuries. Seals. Prior to this enactment, our
Supreme Court had quoted with approval Judge Jerome Frank’s dissenting opinion in Dincher v.
Marlin Firearms Co., 198 F.2d 821, 823 (2d Cir. 1952), in McCroskey v. Bryant Air Conditioning
Co., 524 S.W.2d at p.489 (Tenn. 1975).

               Except in topsy-turvy land, you can't die before you are conceived, or be divorced
               before ever you marry, or harvest a crop never planted, or burn down a house never
               built, or miss a train running on a non-existent railroad. For substantially similar
               reasons, it has always heretofore been accepted, as a sort of legal "axiom," that a
               statute of limitations does not begin to run against a cause of action before that cause
               of action exists, i.e., before a judicial remedy is available to the plaintiff.

              It is a cardinal rule of statutory construction that the intent of the legislature must
prevail. Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975). It is further presumed that the General
Assembly will not enact a nullity. To hold that the statute of limitations ran before the manufacturer
was adjudicated bankrupt, would render the statute in part, meaningless.

                 On the issue before us, McCroskey is instructive and the analogous case of Gibson
v. Swanson Plating and Machine of Kentucky, Inc., 819 S.W.2d 796 (Tenn. 1991) is persuasive. In
Gibson, the plaintiff had been employed in a coal mine in Kentucky and was diagnosed as suffering
from black lung disease. He then filed a worker’s compensation suit in Kentucky, seeking recovery
for his lung condition. In the meantime, he moved to Tennessee and was employed by defendant
Swanson, and shortly after being employed he sustained a work-related injury. He then filed for
worker’s compensation benefits in Tennessee, and some two years later he was awarded permanent,
partial disability in the Kentucky case. Within one year of the Kentucky Judgment plaintiff joined
the Second Injury Fund as a defendant in the Tennessee action. The fund argued the statute of
limitations had expired, but both the Trial Court and the Supreme Court allowed the action to be
maintained. The Supreme Court, in discussing the issue, said:

                       The precise issue before us is whether the one-year statute of limitations on
               the plaintiff’s claim against the Second Injury Fund began to run on the date of the
               second injury, or on the date of adjudication of the permanent partial disability award


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               from the plaintiff’s first injury. We conclude that the better-reasoned approach is to
               hold that the statute begins to run when recovery of an award for a prior injury
               actually materializes, and not, as the Fund advocates, when an employee has
               knowledge of a potential claim.

               ...

                       Indeed, logic would seem to dictate that an employee cannot be held to have
               knowledge of a claim against the Second Injury Fund until that claim actually arises -
               which in this case was not until the first permanent disability was adjudicated.
               Moreover, this logical proposition is consistent with our prior rulings on the accrual
               of a right of action. Tennessee law recognizes that, ordinarily, a statute of limitations
               begins to run when a plaintiff has cause of action and can bring suit. (Citations
               omitted). Likewise, federal courts construing Tennessee law have held that a cause
               of action does not accrue until a suit can be maintained. (Citations omitted).
               Additionally, there must be someone capable of suing before the statute of limitations
               can run.

The Court went on to hold that the Judgment of the Kentucky court awarding permanent disability
triggered the statute of limitations as to the Second Injury Fund’s liability.

                In this case, the statute prohibits the plaintiff from bringing the action against the
seller until one of the conditions set forth in the statute has been satisfied. From the foregoing
analyses, we conclude that the General Assembly intended the limitation period against the seller
would begin to run at the time the manufacturer was adjudicated bankrupt.

             For the foregoing reasons, we affirm the Trial Court’s denial of defendant’s Motion
for Summary Judgment and remand these cases for proceedings consistent with this opinion.

               The cost of the appeal is assessed to National Service Industries, Inc.




                                                       _________________________
                                                       HERSCHEL PICKENS FRANKS , J.




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