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Electric Power Bd. of Chattanooga v. Monsanto Co.

Citation: 19 ELR 21458
No. No. 88-5372, 879 F.2d 1368/30 ERC 1217/(6th Cir., 07/14/1989) Statute of limitations decision aff'd

The court holds that Tennessee statutes of limitations bar claims by electric utility boards for damages suffered as a result of polychlorinated biphenyls (PCBs) in equipment purchased from defendants more than 10 years prior to suit. The court first holds that the three year Tennesse statute of limitations for tort actions applies, since plaintiffs' nuisance and restitution actions are tort actions for injury to property. A four year state statute of limitations applies to plaintiffs' breach of warranty claim. The court holds that plaintiffs' breach of warranty claim is barred by the four year statute of limitations, since the statute provides that the claim accrues when tender of delivery is made regardless of the lack of knowledge of the breach and all equipment was purchased more than four years before this suit was filed. The court holds that plaintiffs' tort claims are barred by the three year statute of limitations. The utilities had actual knowledge of the hazards of PCBs in electrical equipment more than three years before they filed suit. The manufacturers' alleged fradulent concealment of PCB hazards does not toll the tort statute of limitations, since plaintiffs knew of the hazards at least four years before they filed suit. The court holds even if the statute of limitations in § 309 of the Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) applies, this suit would be also barred under CERCLA's statute of limitations.

[District court decisions are published at 17 ELR 20526 [second decision].]

Counsel for Plaintiffs-Appellants
Carlos C. Smith
Strang, Fletcher, Carriger, Walker, Hodge & Smith
400 Krystal Bldg., One Union Sq., Chattanooga TN 37402
(615) 265-2000

Counsel for Defendants-Appellees
George M. Derryberry
Miller & Martin
10th Fl., Volunteer Bldg., Chattanooga TN 37402
(615) 756-6600

Before ENGEL, Chief Judge, BOGGS, Circuit Judge, and COHN, District Judge.*