Campo v. Asbestospray Corp. (1990)

Our plain-English summary of Campo v. Asbestospray Corp. (New York Supreme Court, Appellate Division, February 1, 1990).

Salvatore Campo and other workers sued Asbestospray Corporation, Turner & Newall, PLC and others, on behalf of themselves and a proposed class. They had minor asbestos-related conditions from decades of exposure at work: pleural plaque, irregular opacities, pleural fibrosis and lung markings. They did not seek damages for those conditions. They wanted to preserve the right to sue later if they developed more serious illness such as severe asbestosis or mesothelioma. They filed within the one-year window created by New York's 1986 Toxic Tort Revival Law. The trial court dismissed the complaint for failure to state a cause of action and denied class certification as moot. The Appellate Division affirmed the dismissal. It reasoned that, since no plaintiff or class member had yet suffered a serious injury, they were asking for an advisory opinion about an event that might never happen. The court noted that the revival statute is a condition precedent that cannot be tolled. It observed that someone who later develops serious illness might still sue under CPLR 214-c, and left that question open.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: New York Supreme Court, Appellate Division, 1st Dept.
• Decided: February 1, 1990
• Citation: 158 A.D.2d 259
• Stage: Appeal from motion to dismiss
• State: New York

Outcome. The appellate court affirmed the dismissal of the complaint against the respondents (Turner & Newall, PLC, et al.), holding the plaintiffs sought an advisory opinion about serious injuries not yet suffered, and denied class certification as moot.

What the court held. Plaintiffs with only minor asbestos-related conditions who disclaim recovery for present injuries and seek to preserve claims for possible future serious disease are asking for an advisory opinion. The one-year revival statute is a condition precedent that cannot be tolled.

Issues decided: Fear of Cancer and Medical Monitoring, Statute of Limitations, Trial Procedure and Discovery.

The people and their exposure

• Salvatore J. Campo: pleural plaques and thickening

The defendants

• Turner & Newall, PLC
• Asbestospray Corporation

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Wilson v. Johns-Manville Sales Corp. (U.S. Court of Appeals, District of Columbia Circuit, 1982). The D.C. Circuit reversed the district court's summary judgment for Johns-Manville and the other asbestos defendants, which had dismissed Blannie Wilson's survival and wrongful death claims as time-barred, and remanded for further proceedings.

Later decisions citing this one

One later decision in our library cites this one:

• Wilber v. Owens-Corning Fiberglass Corp. (Iowa Supreme Court, 1991). The Iowa Supreme Court reversed the summary judgment for the defendants (Owens-Corning and others) and remanded, holding the widow's mesothelioma suit was not time barred by the earlier asbestosis diagnosis.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

158 A.D.2d 259 (1990)

Salvatore J. Campo et al., on Behalf of Themselves and All Others Similarly Situated, Appellants,

v.

Asbestospray Corporation et al., Defendants, and Turner & Newall, PLC., etal., Respondents

February 1, 1990

Appellate Division of the Supreme Court of the State of New York, First Department.

Concur — Kupferman, J. P., Ross, Asch, Kassal and Rosenberger, JJ.

Plaintiffs herein have suffered minor injuries as a result of decades-long exposure to asbestos in their employment. However, in bringing this action, they do not seek damages for their injuries to date, but rather to preserve the right to timely sue with respect to more serious injuries, such as severe asbestosis or mesothelioma, they and others similarly situated may develop in the future.

Before the passage of the Toxic Tort Revival Law (L 1986, ch 682), plaintiffs injured by long exposure to chemicals or toxic substances were bound by the three-year Statute of Limitations of CPLR 214, which began to run from the inception of the negligence, i.e., perhaps the first exposure. Consequently, many persons who were unaware of the damage done to them by exposure to these toxic substances were barred from commencing actions, even though they first became aware of illness or injury at a time after the expiration of the period of limitations. To ameliorate this inequitable situation, the Legislature provided that these causes of action would be "revived" for a period of one year: "[E]very action for personal [*260] injury, injury to property or death caused by the latent effects of exposure to diethylstilbestrol, tungsten-carbide, asbestos, chlordane or polyvinylchloride upon or within the body or upon or within property which is barred as of the effective date of this act or which was dismissed prior to the effective date of this act solely because the applicable period of limitations has or had expired is hereby revived and an action thereon may be commenced provided such action is commenced within one year from the effective date of this act" (L 1986, ch 682, § 4).

The "effective date" of the act is July 30, 1986. Thus, all persons injured by asbestos and the other enumerated toxic substances whose actions had been barred by the Statute of Limitations, or even whose actions had previously been dismissed solely because of the Statute of Limitations, now had until July 30, 1987 to bring actions for their injuries. The named plaintiffs brought this action before that cutoff date. However, they disclaim any intent to recover for the minor injuries they presently suffer (i.e., pleural plaque, irregular opacities, pleural fibrosis and intrastrual lung markings), but to preserve the right to timely sue with respect to more serious injuries they and others similarly situated develop in the future. Defendants moved to dismiss the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). The Supreme Court granted these motions and denied plaintiffs' motion for class certification as moot.

Reiterating, plaintiffs do not seek relief for any present injuries, but only for injuries which have not yet been manifest. While plaintiffs argue that this court should adopt a "two-injury" rule, permitting the ordinary Statute of Limitations to run from the time the serious injury develops, not from the time of manifestation of the minor injury (see, Wilson v Johns-Manville Sales Corp., 684 F.2d 111; Ayers v Township of Jackson, 106 NJ 557, 525 A2d 287), since none of them (named plaintiffs or members of the putative class) has yet to suffer a serious injury, what they actually seek is an advisory opinion from this court about an event which may never come to pass (New York Pub. Interest Research Group v Carey, 42 N.Y.2d 527). Defendants correctly assert that the one-year revival statute is not merely a Statute of Limitations, but a condition precedent which cannot be tolled (see, Singer v Lilly & Co., 153 AD2d 210). However, we note, parenthetically, that a member of the putative class herein who subsequently develops a [*261] serious illness from exposure to asbestos may not be within the strict limitations of the revival statute, but may be able to bring an action pursuant to CPLR 214-c. Thus, that statute now computes the three-year period "from the date of discovery of the injury by the plaintiff" (CPLR 214-c [2]; emphasis added). Likewise, in subdivision (6) (b), it provides, inter alia, that it is not applicable to any act which occurred prior to July 1, 1986 and "which caused or contributed to an injury that either was discovered or through the exercise of reasonable diligence should have been discovered prior to such date" (emphasis added). We leave for future determination whether this language refers to the discovery at a later date, by plaintiffs, of a subsequent serious injury.

Sources

• The opinion on Google Scholar
• New York asbestos laws
• New York asbestos exposure sites