                IN THE COURT OF APPEALS OF TENNESSEE

                              EASTERN SECTION          FILED
                                                        August 27, 1997

                                                       Cecil Crowson, Jr.
                                                       Appellate C ourt Clerk




PAUL G. BOW MAN, et ux.,            ) C/A NO. 03A01-9703-CV-00092
                                    )
JAMES R. KIRKLAND, et ux.,          ) KNOX CIRCUIT, DIVISIONS I,
                                    ) II, AND III
FRANK V. HENSLEY, et ux.,           )
                                    ) HON. HAROLD WIMBERLY,
     Plaintiffs-Appellants,         ) JUDGE
                                    )
v.                                  ) HON. WHEELER A. ROSENBALM,
                                    ) JUDGE
A-BEST COMPANY, INC., et al.,       )
                                    ) HON. DALE C. WORKMAN,
     Defendants,                    ) JUDGE
                                    )
     *      *      *                )
                                    )
OW ENS-ILLINOIS, INC.,              ) AFFIRMED
                                    ) AND
     Appellee.                      ) REMANDED




HUGH B. BRIGHT, JR., M. DENISE MORETZ, WOOLF, McCLANE, BRIGHT,
ALLEN & CARPENTER, Knoxville, for Appellee.

GEORGE A. WEBER, III, EDWARD J. LILLY, and MIKE G. NASSIOS, LAW
OFFICES OF PETER G. ANGELOS, P.C., Knoxville, and JOHN A. DAY, Nashville,
for Plaintiffs-Appellants.




                                OPINION




                                                Franks. J.
               In these actions, plaintiffs claimed exposure to products containing

asbestos, and alleged that they contracted asbestosis related diseases as a result of

occupational exposure to asbestos-containing products.1

               Defendant Owens-Illinois, Inc., filed a motion for “Dismissal and/or

Summary Judgment”, asserting that it sold its entire insulation products business as of

April 30, 1958, and did not manufacture, sell or distribute any asbestos-containing

products after April 30, 1958, and concluded that all exposure to its product, if any,

was incurred more than ten years before the enactment of the Tennessee Products

Liability Act, in 1978, which contained a ten-year statute of repose, i.e., Tennessee

Code Annotated §29-28-103(a). The motion acknowledged that Tennessee Code

Annotated §29-28-103(b) effective July 1, 1979 excluded application of 103(a)’s

actions resulting from exposure to asbestos, but this amendment would not apply to

claims barred before the enactment of the 1979 amendment.

               The Trial Court, relying on Wyatt v. A-Best Products Co., 924 S.W.2d

98 (Tenn. App. 1995), granted defendants summary judgment, and plaintiffs have

appealed.

               On appeal, plaintiffs argue that Wyatt does not address the issue

presented in plaintiffs’ opposition to the motion for summary judgment, i.e., plaintiffs

had suffered an injury at the time of exposure, and thus acquired a cause of action, and

“that an existing cause of action may not be extinguished by the subsequent passage of

the Products Liability Statute of Repose.” It is further argued that those undiscovered

injuries caused by defendants’ products “constitute a cause of action” and since the

Tennessee Products Liability Act “can only be applied prospectively”, its passage in


   1
    These cases were consolidated for the purposes of appeal and selected as representative of all
   such cases pending in the Circuit Court for Knox County, Tennessee, and by agreement of the
   parties the decision in these cases will be binding on all such cases now pending in those courts.


                                                 2
1978 “could have no effect upon an existing cause of action acquired by plaintiffs, but

at that point undiscovered”. Plaintiffs’ assertion that they “possessed an existing

cause of action which could not be extinguished by the later enacted statute” is not

supported by the cases.

              The record for purposes of summary judgment essentially establishes

that plaintiffs were exposed to asbestos prior to 1958, and suffered injury and damage

from that exposure. At the time of the passage of the Products Liability Act, plaintiffs

were not aware that their exposure to the product had resulted in injuries to them, and

it was a decade later that they “discovered” their injuries.

              Plaintiffs argue that Jones v. Morristown-Hamblen Hospital Ass’n, Inc.,

595 S.W.2d 816 (Tenn. App. 1979) “is directly on point”, quoting at page 821:

              Under Teeters, decedent had only a “cause of action” which had the
              potential to ripen into a “right of action”. She had no present right to
              sue until her action accrued, discovery being a condition precedent to
              the action. On the effective date of the Act, decedent had not discovered
              her injury; her right of action under Teeters had not accrued. The right
              of action which had been vested under prior law had expired.

              It is universally held that an act or omission whereby one sustains injury,

no matter how slight, starts the statute of limitations running. Limitations of Action,

51 Am.Jur.2d §109, p.681. We held in Jones in the next paragraph after the above

quote, “application of §23-34-15(a) to this suit does not impair any vested right of

action existing at the time of its effective date and is, therefore, constitutionally

permissible.” (Emphasis applied). The facts of these cases are similar to Jones. No

causes of action existed as defined by the cases on behalf of these plaintiffs at the time

the statute was passed in 1978. In Wyatt v. A-Best Co., 910 S.W.2d 851 (Tenn. 1995),

the Supreme Court said:

              [a] cause of action in tort does not accrue until a judicial remedy is
              available. Potts v. Celotex Corp., 796 S.W.2d at 681; Foster v. Harris,
              633 S.W.2d 304, 305 (Tenn. 1982). A judicial remedy is available when
              (1) a breach of a legally recognized duty owed to plaintiff by defendant
              (2) causes plaintiff legally cognizable damage. Potts v. Celotex Corp.,

                                             3
               796 S.W.2d at 681. A breach of a legally cognizable duty occurs when
               plaintiff discovers or “reasonably should have discovered, (1) the
               occasion, the manner and means by which a breach of duty occurred that
               produced . . . injury; and (2) the identity of the defendant who breached
               the duty.” Foster v. Harris, 633 S.W.2d at 305. Legally cognizable
               damages occur when plaintiff discovers “facts which would support an
               action for tort against the tortfeaser. . . .” P.855.

The Supreme Court in Cronin v. Howe, 906 S.W.2d 910 (Tenn. 1995) elucidated the

operational difference between a statute of limitations and a statute of repose. The

Court said:

               [w]here the one-year statute of limitations governs the time within
               which legal proceedings may be commenced after a cause of action
               accrues, the three-year medical malpractice statute of repose limits the
               time within which an action may be brought, but it is entirely unrelated
               to the accrual of a cause of action and can, in fact, bar a cause of action
               before it has accrued. . . . That distinction has prompted courts to hold
               that statutes of repose are substantive and extinguish both the right and
               the remedy, while statutes of limitation are merely procedural,
               extinguishing only the remedy.

In these cases the causes of action had not accrued, and the statute of repose had the

effect of barring the right and remedy before they accrued which, as Cronin notes, is

permissible.

               The Trial Court appropriately relied on Judge Susano’s opinion in Wyatt

v. A-Best Products Co., 924 S.W.2d 98 (Tenn. App. 1995). Wyatt said “since the ten-

year period set forth in T.C.A. §29-28-103(a) is a statute of repose, we do not believe

it is logical to focus on the date of accrual, since, as noted above, the statute runs from

the triggering event without regard to accrual”,2 and held that “Wyatt’s claim was

barred by the T.P.L.A. before he could be rationally expected to have been aware that

he suffered an injury”. P.104.

               Accordingly, we affirm the judgment of the Trial Court and remand at

plaintiffs’ cost.



   2
    As we noted in Jones, the “accrual” date is relative only in those cases where the cause of action
   had accrued before the passage of a statute of repose.


                                                 4
                              ________________________
                              Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Goddard, P.J.




___________________________
Charles D. Susano, Jr., J.




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