Stuart Calwell, Esq.|
David H. Carriger, Esq.
John H. Kozak, Esq.
D. Christopher Hedges, Esq.
Law Offices of Stuart Calwell, PLLC
Charleston, West Virginia
Attorneys for Appellants
John R. McGhee, Jr., Esq.
A. L. Emch, Esq.
James D. Lamp, Esq.|
Lamp, O'Dell, Bartram & Entsminger
Huntington, West Virginia
John J. O'Donnell (Pro Hac Vice)
Joseph E. O'Neil (Pro Hac Vice)
Charles H. Edelin (Pro Hac Vice)
Lavin, Coleman, O'Neil, Ricci,
Finarelli & Gray
Attorneys for General Motors Corp.
Larry A. Winter, Esq.
Paul K. Vey, Esq.
Charles F. Bagley, III, Esq.
Robert B. Allen, Esq.|
William Scott Wickline, Esq.
Allen, Guthrie & McHugh
Charleston, West Virginia
Adam E. Miller (Pro Hac Vice)
J. William Newbold (Pro Hac Vice)
Attorneys for Ingersoll-Rand Co.
Fred Adkins, Esq.
William J. Ryan (Pro Hac Vice)
R. Michael Pleska, Esq.
W. Randolph Fife, Esq.
Jonathan L. Griffith (Pro Hac Vice)|
John H. Beisner (Pro Hac Vice)
O'Melveny & Myers
Attorneys for Ford Motor Company
Susan M. Harman, Esq.
Michael Bonasso, Esq.
L. John Argento, Esq.
Thomas E. Williams (Pro Hac Vice)
In tort actions, unless there is a clear statutory prohibition to its
application, under the discovery rule the statute of limitations begins to run when the plaintiff
knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been
injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and
who may have engaged in conduct that breached that duty, and (3) that the conduct of that
entity has a causal relation to the injury.
Syllabus Point 4,
Gaither v. City Hospital, Inc.,
199 W. Va. 706, 487 S.E.2d 901 (1997).
2. Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed. Syllabus Point 3, Fayette County National Bank v. Lilly, 199 W. Va. 349, 484 S.E.2d 232 (1997) .
In this proceeding, the Court has consolidated seven separate appeals which involve essentially the same issues and which the Court believes should be resolved in the same way. Each appeal, except Appeal No. 26361, is from a decision of the Circuit Court of Kanawha County in a consolidated case involving numerous plaintiffs.See footnote 1 1 In each decision, the circuit court granted the defendants summary judgment on the ground that the plaintiffs' actions were barred by West Virginia's statute of limitations. On appeal, the plaintiffs, who are the appellants here, claim that their actions were not barred by the statute of limitations or that, at the very least, their cases raised questions of fact for a jury as to whether their claims were barred by the statute of limitations and that summary judgment was inappropriate.
It appears that most or all the plaintiffs filed workers' compensation claims.
Additionally, they filed products liability lawsuits against the various manufacturers,
including Deere & Company, of the machines which created the noise to which they were
exposed. Those products liability lawsuits are the actions involved in the present appeal.
One of the claims of the plaintiffs in pursuing their products liability lawsuits
was that the defendants, who manufactured the equipment which caused their hearing loss,
improperly failed to install readily available noise reduction technology on the equipment,
and that as a result of their failure to install such noise-reduction technology, they suffered
the hearing losses to which they are now subject.
In each of the cases under review in Appeal No. 26356, the appellee Deere &
Company moved for summary judgment on the ground that the plaintiffs' actions are barred
by the applicable West Virginia statute of limitations.See footnote 2
Specifically, Deere & Company
claimed first that the plaintiffs had not alleged that they were exposed to noise generated by
Deere's equipment within two years of the date on which they had filed their complaints and,
secondly, that the plaintiffs, on their workers' compensation applications, had indicated that
they had been told by a doctor more than two years prior to the date they filed their products
liability complaints that their hearing loss was caused by noise on the job. Under the
circumstances, Deere & Company claimed that each plaintiff had learned more than two
years prior to the filing of his complaint the nature of his hearing loss injury.
To counter Deere & Company's motion for summary judgment, the plaintiffs
in the cases involved in Appeal No. 26356 submitted affidavits in which they indicated that
at no time more than two years before they filed their complaints did they know, or have
reason to know, that Deere & Company's machines and the machines of the other defendants
were defectively manufactured. While, in essence, conceding that they may not have
instituted their actions within two years after they were actually injured, they took the
position that they did not know, within the two-year period, that the conduct of Deere &
Company was the cause of their injuries. They further took the position that they did
institute their actions within two years after learning that the conduct of Deere & Company
had a causal relationship to their injuries. They also contended that given the nature of their
cases, summary judgment was inappropriate since a material question of fact which remained
to be resolved as to when they discovered, or reasonably should have discovered, the
essential elements of their products liability claims.
After taking the positions of the parties under consideration, the Circuit Court
of Kanawha County rejected the plaintiffs' contentions and granted Deere & Company
summary judgment. In the cases involved in the other appeals which have been consolidated
with Appeal No. 26356, the defendants moved for summary judgment on the same grounds
asserted by Deere & Company in Appeal No. 26356; the plaintiffs opposed the granting of
summary judgment on the same grounds that the plaintiffs in Appeal No. 26356; and the
circuit court ultimately granted the defendants summary judgment.
In the present appeal, the plaintiffs claim that the Circuit Court of Kanawha
County erred in granting the defendants' motions for summary judgment.
In Gaither v. City Hospital, Inc., id., the Court cited with approval the Court's
prior ruling in Hickman v. Grover, 178 W. Va. 249, 358 S.E.2d 810 (1987), a case in which
a plaintiff was injured by an exploding air tank. The plaintiff sued the owner of the air tank
within two years after the explosion, but failed to sue the manufacturer of the tank within the
two-year period. The failure to sue the manufacturer was due to the fact that the plaintiff's
attorney learned that the air tank was defectively manufactured only more than two years had
passed. Under these circumstances, where the plaintiff did not know of the defective
manufacture of the air tank within the two-year period, the Court concluded that the
limitations period was tolled until the plaintiff learned, or by the exercise of reasonable
diligence, should have learned of the defective manufacture.
In resisting the motion of Deere & Company for summary judgment in the
cases giving rise to Appeal No. 26356, the plaintiffs filed affidavits indicating that prior to
two years before they filed their complaints, they did not know that Deere & Company's
equipment was so noisy as to be defective. In effect, they claimed, as did the plaintiff in
Hickman v. Grover, id., that they did not know the defendants' equipment was defectively
manufactured within the two-year period.See footnote 3
Typical of the many affidavits filed was that of
Danny Catron, which stated among other things:
1. At no time prior to two years before my civil action was filed, did I know or have reason to know the essential elements of my products liability claims set forth in my complaint.
2. At no time prior to two years before my civil action was filed, did I know or have reason to know that the defendants named in my complaint had engaged in wrongful conduct by producing and/or distributing the equipment to which I was exposed.
3. At no time prior to two years before my civil action was filed, did I know or have reason to know that any of the equipment I was exposed to was defective.
6. At no time prior to two years before my civil action was
filed did I have any reason to believe that my hearing
loss was caused by any defendant's wrongdoing. I simply
thought that my hearing loss was a normal part of my
The clear import of the affidavits was that the plaintiffs' actions had been filed
in a timely manner under the principles set forth in Syllabus Point 4 of Gaither v. City
Hospital, Inc., supra.
In disposing of Deere & Company's summary judgment motion or motions in
the cases giving rise to Appeal No. 26356, the circuit court entered a blanket order. The
order did not discuss when any individual plaintiff was exposed to noise, when he filed his
claim, or why the court concluded that he had not filed his claim within two years after he
learned of the existence of the elements of his claim or reasonably should have learned of the
existence of the elements of his claim. The court treated the plaintiffs as a group, and the
court's principal finding was simply that: Plaintiffs herein have failed to submit evidence
sufficient to raise a material issue of fact supporting a tolling of the statute of limitations
regarding their alleged hearing loss.
The court then stated:
THEREFORE, it is hereby ORDERED that summary judgment is granted in favor of the defendant, Deere & Company, against each of the following plaintiffs:
DANNY R. CATRON Civil Action No. 93-C-8360
DELMER P. FIELDS Civil Action No. 93-C-8360
CLAUDE D. FRAZIER Civil Action No. 93-C-8360
ASHER L. ISNER Civil Action No. 93-C-8360
THEODORE R. JOHNSON, JR. Civil Action No. 93-C-1895
RUSSELL W. LOUGH Civil Action No. 93-C-8360
ARTHUR D. MATHENY Civil Action No. 93-C-8360
PAUL G. MCCLANAHAN Civil Action No. 93-C-8360
THOMAS F. MCCLANAHAN Civil Action No. 93-C-8360
ROY R. MEADOWS Civil Action No. 93-C-8360
WESLEY C. MEDLEY Civil Action No. 93-C-8360
LOVELL M. PARKER Civil Action No. 94-C-284
LEO B. PRIDDY Civil Action No. 95-C-1917
TEX A. PRIDDY Civil Action No. 93-C-8360
FRANK D. RAPP Civil Action No. 93-C-8360
JESSE RINE Civil Action No. 93-C-8360
MELVIN L. SMITH Civil Action No. 93-C-8360
HAROLD S. VANMETER Civil Action No. 93-C-8360
CHARLIE WALLACE Civil Action No. 93-C-8360
DANIEL W. WESTFALL Civil Action No. 93-C-8360
RONZEL WILSON Civil Action No. 93-C-8360
Recently, in Fayette County National Bank v. Lilly, 199 W. Va. 349, 484
S.E.2d 232 (1997), this Court indicated that it was incumbent upon a trial court to make
appropriate findings of fact when ruling on a motion for summary judgment. In Syllabus
Point 3 of Fayette County National Bank v. Lilly, id., the Court specifically stated:
Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.
In examining the records in the present appeals, the Court notes that the plaintiffs were exposed to noise at differing times and under differing circumstances.
Additionally, they underwent medical examinations at differing times. Although they
obviously knew that they had been injured in the workplace when they filed their workers'
compensation claims, just as the plaintiff in Hickman v. Grover, supra, knew that he had
been injured when the air tank exploded, a crucial question in each of their claims is when
they learned, or when, by the exercise of due diligence, they should have learned, that the
noise from equipment manufactured by Deere & Company or one of the other equipment
manufacturers had a causal relationship to their hearing loss injury.
In view of this, this Court concludes that the judgments of the circuit court in
these appeals must be reversed and these cases must be remanded for the making of findings
as required by Fayette County National Bank v. Lilly, supra. Specific findings should be
made as to each plaintiff and should indicate when that plaintiff knew, or reasonably should
have known, the essential elements of his claim consistent with the Gaither and Hickman
analysis, and why factually the court concludes that he knew, or reasonably should have
known, the elements of his claim on that date.
For the reasons stated, the judgments of the Circuit Court of Kanawha County
are reversed and these cases is remanded for further development.