R. Troy Mulder
Janelle K. Linder
Attorneys for McCord Gasket Co.
James M. Boyers
Attorneys for Bondex International, Inc.
Attorney for Borg-Warner Corp.
Ford Motor Co.
Attorneys for Amici Curiae
Jon L. Williams
Janet E. Golup
Attorneys for Asbestos Corporation Limited and Bell Asbestos Mines, Ltd.
George T. Patton, Jr.
Stephanie F. Holtzlander
Bryan H. Babb
Attorneys for Indiana Legal Foundation
Michael R. Fruehwald
Andrew J. Detherage
Attorneys for Indiana Manufacturers Association and Indiana Chamber of Commerce
Attorneys for Appellee
Robert E. Paul
) ) ) ) ) ) Supreme Court No. ) 02S04-0111-CV-599 ) )CORP., CHRYSLER CORP., CONGOLEUM CORP., CRANE CO., DANA CORP., FIRESTONE TIRE & RUBBER CO., FLEXITALLIC GASKET CO., FLINTKOTE CO., FORD MOTOR CO., GAF CORP., GARLOCK, INC., GENERAL MOTORS CORP., GENERAL REFRACTORIES CO., GEORGIA- PACIFIC CORP., HAUSMAN, KAISER ALUMINUM & CHEMICAL CORP., KAISER GYPSUM CO., INC., KELSEY-HAYES CO., LEAR SIEGLER DIVERSIFIED HOLDING CORP., MACK TRUCKS, INC., MOHAWK MFG. & SUPPLY CO., MOOG AUTOMOTIVE, INC., MOOG AUTOMOTIVE, MCCORD GASKET CO., MUNCIE RECLAMATION, NAVISTAR INTERNATIONAL TRANSPORTATION CORP., NORTHRUP GRUMMAN CORP., NUTURN CORP., OWENS CORNING, OWENS-ILLINOIS, INC., PNEUMO ABEX CORP., RAPID AMERICAN, RAYLOC CO., U.S. GYPSUM CO., UNIROYAL, INC., VELLUMOID, INC., W.R. GRACE & CO.-CONN.
Appellee (Plaintiff below).
March 25, 2003
The Indiana General Assembly has enacted two statutes that limit the period of
time within which persons can file lawsuits alleging injuries caused by products.
One of these statutes, Ind. Code § 34-20-3-1, generally applies to product liability
claims; we will refer to this statute in this opinion as Section 1.
The second statute, Ind. Code § 34-20-3-2, specifically applies to at least
some asbestos liability claims; we will refer to it as Section 2.
(We note that prior to recodification in 1998, Sections 1 and 2 appeared
at Ind. Code § 33-1-1.5-5 and § 33-1-1.5-5.5, respectively.)
This opinion will parse these sections in some detail. For purposes of
this Background section, it is sufficient to say that Section 2 gives plaintiffs
more leeway in filing claims than does Section 1. The Defendants in
this case argue that Section 2 only applies to a limited class of
defendants and that they are not within that class. As such, they
contend, the Otts must proceed against them under the more restrictive Section 1.
The Otts respond that Section 2 allows them to proceed against these
Defendants and that if it does not, then Section 1 violates Indiana Constitution
art. I, § 12,
See footnote as applied to asbestos plaintiffs, and Section 2 violates
art. I, § 23.See footnote
The trial court agreed with the Defendants that Section 2 did not apply
to them but then agreed with the Otts that because it did not,
Section 1 was unconstitutional.
Defendants then secured certification from the trial court of this interlocutory appeal.
We held an extended oral argument on May 16, 2002.
At the same time that this case was proceeding, four other cases raising the same constellation of issues were presented to us. Harris v. A. C. & S., Inc.,766 N.E.2d 383 (Ind. Ct. App. 2002); Jurich v. Garlock, Inc., 759 N.E.2d 1066 (Ind. Ct. App. 2001); Allied Signal, Inc. v. Herring, 757 N.E.2d 1030 (Ind. Ct. App. 2001); Black v. ACandS, Inc., 752 N.E.2d 148 (Ind. Ct. App. 2001). In three of these cases, the respective panels of the Court of Appeals held that Section 2 applied to the defendants and so did not have to reach the constitutional issue. Harris, 766 N.E.2d at 391; Herring, 757 N.E.2d at 1035-37; Black, 752 N.E.2d at 154-55. In Jurich, the Court of Appeals panel found that Section 2 did not apply to the defendants but it found Section 1 unconstitutional. Jurich, 759 N.E.2d at 1070-74, 1077. In summary, the plaintiffs prevailed below in all five of these casesin three on statutory grounds and in two on constitutional grounds.
Finding that the trial court in this case and the Court of Appeals
Harris, Jurich, Herring, and Black incorrectly analyzed these issues at least in
part, we have accepted jurisdiction in each. (We resolve Harris,
in separate opinions today.)
[A] product liability action must be commenced:
(1) within two (2) years after the cause of action accrues; or
(2) within ten (10) years after the delivery of the product to the initial user or consumer.
However, if the cause of action accrues at least eight (8) years but
less than ten (10) years after that initial delivery, the action may be
commenced at any time within two (2) years after the cause of action
Section 1(b). Section 2 excepts certain asbestos-related actions from the operation of
Section 1's ten-year statute of repose. A product liability action based on
personal injury, disability, disease, or death resulting from exposure to asbestos may be
commenced within two years after the action accrues, without regard to the ten-year
statute of repose. Section 2(a). For purposes of this section,
"accrual" is defined as the date when the injured person knows that he
or she has an asbestos-related disease or injury. Section 2(b). The
exception applies only to:
(1) persons who mined and sold commercial asbestos; and
(2) funds that have, as a result of bankruptcy proceedings or to avoid bankruptcy proceedings, been created for the payment of asbestos related disease claims or asbestos related property damage claims.
In summary, the Indiana legislature has outlined the specific time requirements for at least some asbestos-related negligence actions in Section 2, a section distinct from the statute of limitations and period of repose for all other product liability actions outlined in Section 1. While product liability actions under Section 1 have a two-year statute of limitations and a ten-year statute of repose, asbestos-related actions under Section 1 enjoy a different timetable. When a product liability action qualifies under Section 2, there is no firm statute of repose. Rather, a lawsuit must be commenced within two years after the cause of action accrues, which is defined as the date when the injured person knows that the person has an asbestos related disease or injury. Sections 2(a) & (b).
The crucial language for our purposes arises in Section 2(d)(1). There the
Legislature provided that Section 2 only applies if the defendant is a person
who mined and sold commercial asbestos. Defendants who do not fall within
this classification are entitled to the protection offered by the ten-year statute of
repose in Section 1. As such, Defendants argue vigorously that they are
not persons who mined and sold commercial asbestos; the Otts argue that Defendants
When reviewing a statute, courts give effect and meaning to every word. Spaulding v. Intl Bakers Servs., Inc., 550 N.E.2d 307, 309 (Ind. 1990). This Courts primary goal when construing the meaning of a statute is to determine the Legislatures intent. Smith v. State, 675 N.E.2d 693, 696 (Ind. 1996), appeal after remand, 695 N.E.2d 909 (Ind. 1998) (citing Freeman v. State, 658 N.E.2d 68, 70 (Ind. 1995)). Given such deference to legislative intentions, an unambiguous statute is interpreted to mean what it plainly states, and its plain and obvious meaning may not be enlarged or restricted. Ind. Dept of State Rev. v. Horizon Bancorp, 644 N.E.2d 870, 872 (Ind. 1994).
First, they say that it is more likely that the Legislature meant the
phrase to be read "persons who mined and persons who sold" than "persons
who both mined and sold." This is in part because the latter
reading renders the words "and sold" superfluous since it is unlikely that there
are any entities that mine but do not sell asbestos.
Second, the Otts argue that Section 2 was clearly enacted in recognition of
the long latency period associated with asbestos-related illnesses. It is inconsistent with
that recognition, they contend, to limit claims to the relatively few companies that
both mine and sell asbestos, exempting all others that disseminate asbestos and asbestos-containing
products into the marketplace.
Third, the Otts maintain that the Defendants' interpretation of persons who mine and
sell cannot be harmonized with subsection (d)(2), quoted supra, that permits lawsuits initiated
outside of the ten-year statute of repose to proceed against "funds that have,
as a result of bankruptcy proceedings or to avoid bankruptcy proceedings, been created
for the payment of asbestos related disease claims or asbestos related property damage
claims." The Otts argue that the Legislature could not have meant
for viable companies that sold asbestos but did not mine it to be
excluded from liability, but those same companies, if in bankruptcy with the funds
described in section (d)(2), to be subject to claims.
We will withhold resolution of this debate for the moment.
"Commercial" has been defined as "[o]f, relating to, or being goods, often unrefined,
produced and distributed in large quantities for use by industry." American Heritage
College Dictionary 280 (3d ed. 2000). Jurich cites us to 40 C.F.R.
§ 61.141 to support her argument that "commercial asbestos" includes any asbestos-containing product.
However, our reading of the entirety of this Environmental Protection Agency regulation
leads us to the opposite conclusion. The regulation states that "[c]ommercial asbestos
means any material containing asbestos that is extracted from ore and has value
because of its asbestos content." Elsewhere, there are clear indications that
the EPA considered "commercial asbestos" to be a bulk product separate from asbestos-containing
products, for example: "Fabricating means any processing . . . of a
manufactured product that contains commercial asbestos . . . ." Id.
(emphasis added). Also, "[m]anufacturing means the combining of commercial asbestos . .
. with any other material(s), including commercial asbestos, and the processing of this
combination into a product. " Id. (emphasis added). Thus, we agree
with Sears Roebuck and Co. v. Noppert, 705 N.E.2d 1065, 1068 (Ind. Ct.
App. 1999), trans. denied, to the extent that panel believed "commercial asbestos" did
not refer to sellers of "products which contained some components composed of asbestos."
Here, the defendants sold asbestos-containing products, not "commercial asbestos," which we
conclude refers to either "raw" or processed asbestos that is incorporated into other
products. The legislature did not intend [Section 2] to apply to these
Jurich, 759 N.E.2d at 1070-71. Accord Roberts, 1998 U.S. Dist. LEXIS 22635,
All courts shall be open; and every person, for injury done to him
in his person, property, or reputation, shall have remedy by due course of
Ind. Const. art I, § 12. As discussed
supra, Section 1 requires
a product liability action to be commenced within ten years after the delivery
of the product to the initial user or consumer. The trial court
acknowledged that this ten-year statute of repose was constitutional on its face, see
Dague v. Piper Aircraft Corp., 275 Ind. 520, 530, 418 N.E.2d 207, 213
(1981); see also State v. Rendleman, 603 N.E.2d 1333, 1336-37 (Ind. 1992); but
found it to be unconstitutional as applied to the Otts.
In reaching its conclusion, the trial court found our decision in Martin v.
Richey, 711 N.E.2d 1273 (Ind. 1999), controlling. In Martin, we held that
art. I, § 12,
preclude[s] the application of a two-year medical malpractice statute of limitations when a
plaintiff has no meaningful opportunity to file an otherwise valid tort claim within
the specified statutory period because, given the nature of the asserted malpractice and
the resulting injury or medical condition, plaintiff is unable to discover that she
has a cause of action. Stated another way, the medical malpractice statute
of limitations is unconstitutional as applied when plaintiff did not know or, in
the exercise of reasonable diligence, could not have discovered that she had sustained
an injury as a result of malpractice, because in such a case the
statute of limitations would impose an impossible condition on plaintiff's access to courts
and ability to pursue an otherwise valid tort claim.
711 N.E.2d at 1284. The trial court found Mr. Otts situation to
be virtually identical to that at issue in Martin:
[A]sbestos caused cancer takes between ten (10) and twenty-five (25) years to manifest
itself. Even with the utmost amount of diligence Mr. Ott would not
have been able to meet the time restrictions of [Section 1]. No
one would have. Just like Ms. Martin, Mr. Ott had an accrued
claim, albeit unrecognizable, and was in the position of having the claim but
no practical means of asserting it.
(Appellants App. at 113)(footnotes and citation omitted).
We think that this analysis paints with too broad a brush. In
Jurich, Judge Barnes begins with a framework for his art. I, § 12,
analysis that we think is helpful here:
There are at least three contexts in which the statute of repose could
be considered in this case. First, is the statute constitutional as applied
to a plaintiff who is exposed to asbestos from and injured by a
product more than ten years after that product's initial delivery? Second,
is the statute constitutional as applied to a plaintiff who is injured by
a product within ten years of its initial delivery, but who has neither
knowledge of nor any ability to know of that injury until more than
ten years have passed? Third, in the absence of evidence of
the length of time between a product's initial delivery and an injury .
. . , can the statute constitutionally be applied to a plaintiff who
was injured by a product before [Section 1's] passage?
Jurich, 759 N.E.2d at 1071.
We are constrained to observe that the trial court's analysis does not take
into account the first of these three scenarios, i.e., where the first exposure
to asbestos does not occur until more than ten years after the asbestos-containing
product's initial delivery. We see nothing in the trial court's findings that
indicate one way or the other when the plaintiff's first exposure to asbestos
occurred relative to the asbestos-containing product's initial delivery. In the event that
this period exceeded ten years, the relevant defendants would be protected by the
statute of repose. Application of the statute of repose would be constitutional
under art. I, § 12: the plaintiff would be in exactly the
same position as the plaintiff injured in the plane crash in Dague or
by the loader in McIntosh v. Melroe Co., 729 N.E.2d 972 (Ind. 2000),
both cases where the statute of repose was upheld.
We have a less definitive answer to the second of Judge Barnes's scenarioswhere
a plaintiff is injured by a product within ten years of its initial
delivery, but who has neither knowledge of nor any ability to know of
that injury until more than ten years have passed. We agree with
the trial court and Judge Barnes that the rule of Martin v. Richey
is implicated. But it is only implicated where the plaintiffs cause of
action has accrued within the ten-year period.
Here it is difficult to reconcile science and law. On the one
hand, injury for this purpose does not occur upon mere exposure to (or
inhalation of) asbestos fibers. There is substantial authority on this point.
On the other hand, we recognize that injury may well occur before the
time that it is discovered. As Judge Barnes says, the very point
Martin v. Richey is that the constitution required access to courts where
she could not have known or discovered that she was the victim of
malpractice within [the applicable] time frame. Jurich, 759 N.E.2d at 1074 (emphasis
We hold that, with respect to asbestos claims under Section 1, a cause
of action accrues at that point at which a physician who is reasonably
experienced at making such diagnoses could have diagnosed the individual with an asbestos-related
illness or disease. See e.g., Neubauer v. Owens-Corning Fiberglas Corp., 686 F.2d
570, 577 (7th Cir. 1982) (A cause of action accrues when the asbestos-caused
disease becomes diagnosablee.g., provable by medical evidence in court.). In this regard,
we disapprove Judge Barnes's and the trial courts formulations to the extent that
they hold that a cause of action accrues when exposure to asbestos occurs
even though a disease does not manifest itself until many years later.
In our view, it is only when the disease has actually manifested itself
(and therefore could be diagnosed by a reasonably experienced physician) that the cause
of action accrues. Jurich, 759 N.E.2d at 1075. Thus, Martin is
implicated only where a cause of action in fact accrues (i.e., a reasonably
experienced physician could have diagnosed the plaintiff with an asbestos-related illness or disease)
within the ten-year statute of repose, yet the potential plaintiff had no reason
to know of the diagnosable condition until the ten-year period had expired.
Based on the foregoing, the statutory scheme might be unconstitutional as applied to
the plaintiff if a reasonably experienced physician could have diagnosed Jerome Ott with
an asbestos-related illness or disease within the ten-year statute of repose, yet Ott
had no reason to know of the diagnosable condition until the ten-year period
had expired. We direct the trial court to examine this possibility on
This brings us to the third of Judge Barnes's scenarioswhether, in the absence
of evidence of the length of time between a product's initial delivery and
an injury, Section 1 can be constitutionally applied to a plaintiff who was
injured by a product before Section 1's passage. Judge Barnes argues that
such a plaintiff had a vested right to pursue such a claim that
the Legislature could not take away.
Justice Boehms plurality opinion in McIntosh discussed the power of the Legislature to
abolish common law remedies. His opinion conclusively demonstrates, we believe, the Legislatures
power to do so and we will not repeat his analysis here.
See McIntosh, 729 N.E.2d at 977-78. But Judge Barnes acknowledges this and
makes a slightly different point. The key distinction, he says, is that the
asbestos plaintiff in Jurich had a vested right, not in a rule of
common law in the abstract, like the McIntoshes, but because he had been
injured by defendant's products at a time when Indiana courts recognized common law
product liability actions without an equivalent to the later-enacted . . . statute
of repose and thus without reference to the length of time a product
had been in the stream of commerce. Jurich, 759 N.E.2d at 1076.
First, we point out that the statute of repose has been in effect
since July 1, 1978. See 1978 Ind. Acts. 141, § 28.
Even if Judge Barnes is correct, a cause of action would have to
accrue (i.e., a reasonably experienced physician would have to have been able to
diagnose an asbestos-related illness or disease) before July 1, 1978, for his distinction
to make a difference.
But, second, a plaintiffs right to pursue such a claim may in some
circumstances be subject to changes in common law or statute. For example,
a plaintiffs ability to assert products claims was expanded under the common law,
see, e.g., Cornette v. Searjeant Metal Prods., Inc., 258 N.E.2d 652, 656 (Ind.
Ct. App. 1970) (adopting Restatement of Torts (Second) § 402A), and we have
held it within the purview of the Legislature to modify or abrogate that
expansion. McIntosh, 729 N.E.2d at 977-78.
Art. I, § 12, provides that [a]ll courts shall be open; and every
person, for injury done to him in his person, . . .shall have
remedy by due course of law. Section 1, as we have previously
held, does not violate this provision. Furthermore, asbestos plaintiffs have additional remedies
under Section 2 where they may pursue miners and sellers of commercial asbestos
and asbestos bankruptcy funds without regard for Section 1s statute of repose.See footnote
Thus, even if an asbestos plaintiffs claim would not accrue within the normal
ten-year period of repose, courts remain open under Section 2.
The General Assembly shall not grant to any citizen, or class of citizens,
privileges or immunities, which, upon the same terms, shall not equally belong to
In determining whether a statute complies with or violates this provision, we use
the two prong test set out in
Collins v. Day, 644 N.E.2d 72,
80 (Ind. 1994). However, before we can determine whether the legislative classification
is permissible under this test, we need to identify the legislative classification at
issue. We think the constitutional claim here, reduced to its essentials, is
that asbestos victims in Indiana are bound by the statute of repose governing
product liability actions when suing particular categories of defendants but are not so
constrained when suing others. Thus, the statute creates a distinction between asbestos
victims and other victims under the product liability act.
While it is true that such a distinction is created, we find it
unnecessary to determine whether the distinction is constitutionally permissible because the classification resulting
from the distinction of which the plaintiffs complain, as we have seen, works
in favor of asbestos plaintiffs.
See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 347-48, 56 S.Ct. 466, 483 (1936) (Brandeis, J., concurring) (The Court
will not pass upon the validity of a statute upon complaint of one
who fails to show that he is injured by its operation. . .
. The Court will not pass upon the constitutionality of a statute at
the instance of one who has availed himself of its benefits.). Asbestos
plaintiffs are subject to the same statute of repose as other products liability
claims with respect to all defendants other than persons who mine and sell
commercial asbestos and certain bankruptcy funds. With respect to the latter two
classes of defendants, asbestos plaintiffs are not subject to a statute of repose
at all. To the extent there is any art. I, § 23
defect, asbestos plaintiffs do not suffer any cognizable harm.
Section 2 was adopted by the Legislature while Covalt was pending, i.e., Covalt
was decided under prior law. Id. at 383 n.1. The rationale
for the Covalt opinion was that the Court [could not] say that the
Legislature intended the ten year statute of repose to bar claims such as
this one, where the injury is the result of protracted exposure to a
hazardous foreign substance. Id. at 386. The adoption of Section 2
renders that analysis obsolete.
In addition, there are key factual differences between Covalt and the present case. Covalt involved a plaintiff who worked with raw asbestos. 543 N.E.2d at 383. We stated in Covalt that the applicability of the holding in that case was limited to the precise factual pattern presented, which involved exposure to raw asbestos fibers. Id. at 387. Thus, Covalt can be read as consistent with the effect of Section 2 in that it relieved asbestos plaintiffs from the statute of repose in a lawsuit against a supplier of commercial asbestos. To the extent that Covalt is inconsistent with todays opinion, it is overruled.
Having previously granted transfer pursuant to Indiana Appellate Rule 56(A), we now reverse
the judgment of the trial court. We remand this matter to the
trial court for further proceedings consistent with this opinion.
SHEPARD, C.J., and BOEHM, J., concur. DICKSON, J., dissents with separate opinion,
in which RUCKER, J., concurs.
I strongly disagree with the majority's decision to reverse the trial court's denial
of summary judgment in this case. In particular, I believe that the
majority is incorrect in: (1) limiting the statutory term "commercial asbestos" to mean
only raw asbestos; (2) construing "mined and sold" contrary to legislative intent; (3)
failing to find a violation of Article 1, Section 12, of the
Indiana Constitution; (4) failing to find a violation of Article 1, Section
23, of the Indiana Constitution; and (5) overruling rather than following
v. Carey Canada, Inc.
Id. at 154 (internal citation omitted). This analysis has since been noted
with approval in Harris v. ACandS, Inc., 766 N.E.2d 383, 391 (Ind. Ct.
App. 2002); Jurich, 759 N.E.2d at 1069-70; Herring, 757 N.E.2d at 1035; Fulk
v. Allied Signal, Inc., 755 N.E.2d 1198, 1202 (Ind. Ct. App. 2001); Parks
v. A.P. Green, Indus., Inc., 754 N.E.2d 1052, 1058 (Ind. Ct. App. 2001);
and Poirier v. A.P. Green Services, Inc., 754 N.E.2d 1007, 1010 (Ind. Ct.
In accord with Judge Mattingly-Mays analysis, I am convinced that the legislature intended "persons who mined and sold" to mean "persons who mined and persons who sold."
Appellants' App. p.113 (footnotes and citation omitted). Because of this long latency
period, asbestos-caused cancer usually does not appear until after the ten-year statute of
repose. This is precisely the circumstance that led this Court in
v. Richey to find that application of the medical malpractice two-year statute of
limitations to the facts of that case violated Article 1, Section 12, because
Martin had "no meaningful opportunity to file an otherwise valid tort claim within
the specified statutory period." 711 N.E.2d 1273, 1284 (Ind. 1999). We
[G]iven the nature of the asserted malpractice and the resulting injury or medical condition, plaintiff is unable to discover that she has a cause of action. Stated another way, the medical malpractice statute of limitations is unconstitutional as applied when plaintiff did not know or, in the exercise of reasonable diligence, could not have discovered that she had sustained an injury as a result of malpractice, because in such a case the statute of limitations would impose an impossible condition on plaintiff's access to courts and ability to pursue an otherwise valid tort claim.
Id. As we explained in McIntosh v. Melroe Co., 729 N.E.2d 972,
979 (Ind. 2000), "[t]he holding in Martin v. Richey is that a claim
that exists cannot be barred before it is knowable." Likewise here, Jerome
Ott was diagnosed with lung cancer in 1998 and died in 2000.
The plaintiff alleges that his lung cancer was caused by exposure to asbestos
at his various places of employment from 1949 through 1983. Because of
the unusually long latency period of asbestos-related cancer, it was impossible for Ott
to discover that he had contracted a disease from exposure to asbestos within
the statute of repose.
The majority observes "nothing in the trial court's findings that indicate one way or the other when the plaintiff's first exposure to asbestos occurred relative to the asbestos-containing product's initial delivery." Maj. slip opin. at 14. This fact is irrelevant to our review of the denial of summary judgment. As the proponent of summary judgment, it was the defendant's burden to establish that the action was commenced in violation of the statutory limitation period. Burks v. Rushmore, 534 N.E.2d 1101, 1104 (Ind. 1989). To succeed on summary judgment, the defendants were required to demonstrate that there was no genuine issue as to any material fact and that Ott could have discovered that he had sustained an injury in time to comply with the statutory limitation period, as required by Martin. Even though this Court in McIntosh held that "products that produce no injury for ten years are no longer subject to claims under the Product Liability Act," 729 N.E.2d at 979, the defendants failed to demonstrate that the asbestos exposure produced no injury for over ten years. The defendants' failure of proof supports the denial of summary judgment.
In its application of Martin, the majority today creates a new definition of accrues and declares that, "with respect to asbestos claims under Section 1, a cause of action accrues at that point at which a physician who is reasonably experienced at making such diagnoses could have diagnosed the individual with an asbestos-related illness or disease." Maj. slip opin. at 16. Because this omits consideration of when the injured person (as opposed to a hypothetical physician) becomes aware of his or her own injury, today's new definition of "accrues" is wholly contrary to existing law. "[A] cause of action accrues when the resultant damage of a negligent act is ascertainable or by due diligence could be ascertained . . . ." Burks, 534 N.E.2d at 1104 (quoting Barnes v. A.H. Robins Co., Inc., 476 N.E.2d 84, 86 (Ind. 1985)). The ascertainability of damage is determined "by evaluation of the nature and circumstances of the information known or reasonably discoverable by [the injured person], beginning at the initial point of his claimed harm." Id. at 1104. The legislature itself understands this to be the proper meaning of "accrues." Section 2 explains: "A product liability action for personal injury, disability, disease, or death resulting from exposure to asbestos accrues on the date when the injured person knows that the person has an asbestos related disease or injury." I.C. 34-20-3-2(b) (emphasis added).
Therefore, and contrary to the majority, Martin is clearly implicated when a person injured by exposure to asbestos did not, and could not by the exercise of due diligence, ascertain that he or she had been damaged by the asbestos, regardless of whether the condition hypothetically might have been diagnosed by a reasonably experienced physician within the ten-year statute of repose. Moreover, for the limitation period to bar the claim, it is a defendants' burden to establish a plaintiff's knowledge of the asbestos-related injury within the statutory period.
For the reasons expressed in Martin and reaffirmed in McIntosh, the trial court did not err in finding the product liability statute of repose to violate Article 1, Section 12, as applied to the facts of this case.
Id. at 387.
The majority dismisses this holding on grounds that Covalt was decided under prior law because the language of Section 2, although then recently adopted, was not applicable to the facts there presented. We noted this fact in Covalt and described the effect of the amendment as providing "in pertinent part that an asbestos-related action must be brought within two years of the date when the injured person knows that he has an asbestos-related disease or injury." Id. at 383-84 n.1. The effect of Covalt was to determine the application of the statute of repose with respect to asbestos-related claims in a manner quite consistent with that implemented with the legislature's enactment of the ameliorative language of Section 2, allowing access to courts by persons with asbestos-related injuries.
The majority declares that the adoption of Section 2 renders Covalt's analysis "obsolete," Maj. slip opin. at 22, because Covalt expressly excluded Section 2 from its determination and noted its uncertainty regarding whether the legislature "intended the ten year statute of repose to bar claims such as this one, where the injury is the result of protracted exposure to a hazardous foreign substance." Covalt, 543 N.E.2d at 386. The majority's analysis assumes that Section 2 represents the legislature's intent to bar all such claims except those against producers of raw asbestos. However, if Section 2 is read as the Covalt court understood it, to provide a humane, fair, and just exception from the statute of repose for all persons whose asbestos-related diseases cannot be ascertained within ten years after exposure, the existence of Section 2 in no way renders Covalt obsolete.