               IN THE COURT OF APPEALS OF TENNESSEE




WILLIAM LEFFEW, and wife,               )   C/A NO. 03A01-9508-CV-00280
CHRISTINE LEFFEW,                       )   KNOX COUNTY CIRCUIT COURT
                                        )
           Plaintiffs-Appellants,       )
                                        )
                                        )
                                        )
                                                       FILED
                                        )
v.                                      )               March 29, 1996
                                        )
                                        )              Cecil Crowson, Jr.
                                        )              Appellate C ourt Clerk
                                        )
                                        )
AcandS, Inc., et al.,                   )
                                        )   HONORABLE DALE WORKMAN,
           Defendants-Appellees.        )   JUDGE




                        CONCURRING OPINION


           I concur in the result reached in the opinion authored

by Judge McMurray; however, I believe the bankruptcy claims

produced by the plaintiffs in discovery do present an issue that

was not directly addressed in Wyatt v. A-Best Company, 910 S.W.2d

851 (Tenn. 1995).   Those claims raise this question: did the

plaintiff William Leffew (Leffew) acknowledge in the claims

submitted on his behalf that he knew, more than one year before

the plaintiffs filed suit, that he was suffering from an

asbestos-related disease?   The question in this case is not

whether the June 6, 1990, diagnosis was one of asbestosis.              That

question is clearly answered in the negative by the holding in

Wyatt.   The real question in the instant case is the significance

of Leffew’s statement in the claims that he was suffering from an

“asbestos related condition[]” that was “first diagnos[ed]” on


                                    1
June 6, 1990.       Does this mean that, prior to June 27, 19901, he

had some knowledge of an asbestos-related condition over and

above the “bare bones” June 6, 1990, diagnosis of “interstitial

fibrosis consistent with pneumoconiosis”?             I write separately to

explore, in more detail, the claims filed on behalf of Leffew

against the Manville Personal Injury Settlement Trust and the UNR

Asbestos-Disease Claims Trust.



              In its present posture, this case is still one “on the

papers.”      We are dealing with a question of summary judgment.

The affirmative defense of the statute of limitations has not

been tried on the merits.         Therefore, neither the trial court nor

this court is permitted to weigh the evidence.                Byrd v. Hall, 847

S.W.2d 208, 211 (Tenn. 1993) (“The court is not to ‘weigh’ the

evidence when evaluating a motion for summary judgment.”) Summary

judgment is designed to resolve cases “on the papers” when it is

clear that all of the material facts required to resolve a given

issue are undisputed and that those undisputed material facts

demonstrate conclusively that the moving party is entitled to a

judgment, as a matter of law.          Tenn. R. Civ. P. 56.03.



              In a summary judgment evaluation, there is a mandated

bias in favor of the nonmoving party.            We must view the evidence

in a light favorable to that party.           Byrd at 215.      By the same

token, and particularly relevant here, we must allow the

nonmoving party all reasonable inferences from the record in that

party’s favor.       Id.   If two mutually exclusive reasonable

inferences can be drawn from the record--one favorable to the


     1
         The original complaint was filed on June 27, 1991.

                                        2
movant and one favorable to the nonmovant--the latter is entitled

to the one favorable to him or her.          I will review these claims

with these principles in mind.



            In order to understand the essence of the defendants’

position with respect to these essentially similar bankruptcy

claims, it is necessary to examine the claim forms filed on

behalf of Leffew.       I will analyze the one filed against the

Manville Personal Injury Settlement Trust; however, my comments

are equally applicable to the other claim.             For ease of

reference, the portions of the Manville Trust claim completed on

behalf of Leffew are shown in italics:



SOCIAL SECURITY NO.    XXX-XX-XXXX
 IN 1. ASBESTOS RELATED CONDITIONS
CONDITION-LOCATION-ORIGIN                DATE OF FIRST DIAGNOSIS
Interstitial fibrosis                    (6) MONTH     (6) DAY     (90) YEAR
                                         PHYSICIAN NAME(S)
                                         Myung-Sup Kim, M.D.
CONDITION-LOCATION-ORIGIN                DATE OF FIRST DIAGNOSIS
Probable asbestos related lung           (6) MONTH     (28) DAY    (90) YEAR
disease
                                         PHYSICIAN NAME(S)
                                         Steve G. Ferguson


            The defendants argue that this claim reflects that

Leffew knew, prior to June 27, 1990, that he was suffering from

asbestosis.     The argument goes something like this: the claim

asked the claimant to identify “asbestos related conditions”;

Leffew’s counsel filled in the condition of “interstitial

fibrosis” as one of his “asbestos related conditions”; he

indicated that this “asbestos related condition[]” was “first

diagnos[ed]” on June 6, 1990; therefore, the argument goes,



                                     3
Leffew knew on or about June 6, 1990, that he was suffering from

an “asbestos related condition[].”



            Assuming, for the purpose of argument, that the

interpretation placed on the bankruptcy claims by the defendants

is a reasonable one2, it is obvious that their interpretation is

not a conclusive one.      Therefore, the question remains--is there

a reasonable interpretation of the claims favorable to the

plaintiffs?    If there is, we must discard the interpretation

favorable to the defendants as “countervailing evidence.”              Id. at

210-11.



            It must be remembered that Leffew’s claims were

submitted after Dr. Steve G. Ferguson made his diagnosis of

asbestosis3.    It can be legitimately argued that Leffew, in his

claims, was asserting that, after he got the definite diagnosis

of asbestosis from Dr. Ferguson, he then knew4 that the broader

x-ray diagnosis of “interstitial fibrosis” was really evidence of

asbestosis.    This is a fair inference from the bankruptcy claims,

it is favorable to Leffew, and he is entitled to it under our

summary judgment procedure.



            The bankruptcy claims filed by Leffew are clearly


      2
       I express no opinion as to whether the defendants’ “spin” on the claims
is persuasive; however, I would point out that there is no express statement
in either claim that Leffew knew he had asbestosis more than one year prior to
the filing of the complaint. This is arguably significant because the date
one learns of a diagnosis obviously can be different from the date the
diagnosis is made.
      3
       The Manville claim, for example, was transmitted to the Trust by a
letter from Leffew’s counsel dated August 8, 1990.
      4
       I say “knew” because once Leffew learned on or about June 28, 1990,
that he had asbestosis, he would have then realized that the June 6, 1990,
diagnosis of a lung disease was in fact a diagnosis of asbestosis.

                                      4
susceptible to a reasonable interpretation--a “slant” as it were

--favorable to his position, i.e., that he did not know of, and

is not legally chargeable with knowledge of, his condition of

asbestosis until he learned of that diagnosis from Dr. Ferguson.



          The bankruptcy claims, properly construed, do not

establish a fact essential to the defendants’ motion, i.e.,

accrual of the plaintiffs’ cause of action more than one year

before the instant case was filed.    This being the case, the

facts of this case, from the defendants’ standpoint, are no

stronger than those in Wyatt.    Therefore, there is no reason to

reach the defendants’ estoppel argument, dependent as it is on

our adoption of the defendants’ interpretation of the bankruptcy

claims.



          Summary judgment on the affirmative defense of the

statute of limitations is not appropriate.    It remains to be seen

what the admissible evidence on this particular issue will

reflect when this issue and the other issues made by the

pleadings are tried on the merits.




                                ________________________________
                                Charles D. Susano, Jr., J.




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