                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.




                              5
              IN THE COURT OF APPEALS OF TENNESSEE




PAUL G. BOWMAN, et ux.,                ) C/A NO. 03A01-9703-
CV-00092

JAMES R. KIRKLAND, et ux.,
                              )
                              )
                                                FILED
                              )              August 27, 1997
FRANK V. HENSLEY, et ux.,     )
                              )            Cecil Crowson, Jr.
         Plaintiffs-Appellants,)            Appellate C ourt Clerk
                              )
                              )
                              )
v.                            ) APPEAL AS OF RIGHT FROM
THE
                              ) KNOX COUNTY CIRCUIT COURT
                              )
                              )
A-BEST COMPANY, INC., et al.,      )
                              )
         Defendants,          )
                              )
                              )
           *   *    *         )
                              ) HONORABLE HAROLD WIMBERLY,
OWENS-ILLINOIS, INC.,         ) HONORABLE WHEELER A.
ROSENBALM,
                              ) HONORABLE DALE C. WORKMAN,
         Appellee.                 ) JUDGES




                   CONCURRING OPINION

          I concur in Judge Franks’ opinion.    I adhere to the

opinion authored by me in the case of Wyatt v. A-Best Products

Co., 924 S.W.2d 98 (Tenn.App. 1995), perm. app. den. May 28,

1996.   I agree with Judge Franks that the result in that case,

and, I would add, the reasoning advanced to support it, fully

answer the issue of statutory interpretation raised by the

plaintiffs.    I write separately to further respond to the



                                6
plaintiffs’ issue regarding statutory construction.    I note,

parenthetically, that the plaintiffs acknowledged at oral

argument that their constitutional issues could not be

addressed by this court since, as the plaintiffs apparently

concede, a resolution of those issues in their favor would

require an overruling of controlling Supreme Court precedent.

Obviously, this is not our prerogative.

          When the General Assembly enacted the Tennessee

Products Liability Act of 1978 (TPLA), it did so in response

to a perceived problem related to the availability and cost of

product liability insurance, and the impact of these issues on

manufacturers, distributors, and consumers.   The preamble to

the enacting legislation, Chapter 703 of the Public Acts of

1978, effective July 1, 1978, is instructive:



          WHEREAS, The General Assembly finds and
          declares that the number of product
          liability suits and claims for damages and
          the amount of judgments, settlements and
          the expense of defending such suits have
          increased greatly in recent years, and
          because of these increases the cost of
          product liability insurance has
          substantially increased. The effect of
          increased insurance premiums and increased
          claims has increased product cost through
          manufacturers, wholesalers and retailers
          passing the cost of the premium to the
          consumer. Further, certain product
          manufacturers are discouraged from
          continuing to provide and manufacture such
          products because of the high cost and
          possible unavailability of product
          liability insurance; and

          WHEREAS, In view of these recent trends
          and for the purpose of alleviating the
          adverse effects which these trends are
          producing, it is necessary to protect the
          public interest by enacting measures
          designed to make product liability
          insurance more readily available at a
          reasonable cost so that product cost may

                              7
            be lessened to the consumer; and

            WHEREAS, In enacting this act, it is the
            purpose of the General Assembly to provide
            a reasonable time within which action may
            be commenced against manufacturers, and/or
            sellers while limiting the time to a
            specific period of time for which product
            liability insurance premiums can be
            reasonably and accurately calculated; and
            to provide other changes to expedite early
            evaluation and settlement of claims; . . .



I cannot reconcile the plaintiffs’ position regarding the

interplay between their claims and the ten-year statute of

repose in the TPLA, with the purpose behind that enactment --

an immediate response to a perceived insurance problem, and

its aftermath, of the magnitude expressed by the General

Assembly.    Whether such a problem existed, in fact, is not the

issue.   The General Assembly believed that it did and enacted

legislation to address it.    I believe that the legislative

body intended that an unfiled, unknown claim for damages

resulting from a produce that had been in use for more than

ten years as of July 1, 1978, would be extinguished, as of

that date -- both the right and the remedy.    I believe that

any other interpretation of that statute of repose is at odds

with the purpose of the TPLA.    This is primarily because the

continued viability of latent injury claims associated with

products that had been in use for more than ten years as of

July 1, 1978, would be a serious impediment to resolving the

very problem that the General Assembly sought to address when

it enacted the TPLA.

            We must interpret a statute in a way that is

consistent with its purpose.    In re Conservatorship of

Clayton, 914 S.W.2d 84, 90 (Tenn.App. 1995).    In my judgment,

                                8
a delayed implementation of this particular statute of repose

is the antithesis of the purpose behind the legislation in

question.   Had the General Assembly intended to exclude latent

claims from the effect of the ten-year statute of repose, or

had it intended to limit the statute’s application to products

“purchased for use or consumption” on or after the effective

date of the legislation, it could have so provided.   However,

it failed to do so.   I believe that these omissions, taken

together with the purpose of the statute and the clear import

of the language employed by the legislative body, all militate

in favor of our interpretation of the TPLA’s statute of

repose.




                               __________________________
                               Charles D. Susano, Jr., J.




                               9
