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Locke v. Johns-Manville Corp.

ELR Citation: 11 ELR 20326
Nos. No. 790171, 275 S.E.2d 900/221 Va. 951, (Va., 03/06/1981)

The court rules that the Virginia statute of limitation governing personal injuries caused by exposure to asbestos products begins to run when the claimant has a legally provable injury, not at the time of the last exposure. In 1978, appellant filed a negligence action alleging that he contracted mesothelioma from his occupational exposure between 1948 and 1972 to asbestos products manufactured by appellees. The court rejects appellees' claim that the action is barred by a two-year statute of limitation which, it argued, began to run in 1972 when appellant was last exposed to asbestos-containing products. The Virginia Supreme Court interprets the statute to run from the time of physical harm to the plaintiff, not from the date of the wrongful act. Thus, since mesothelioma, caused by inhalation of asbestos dust, does not occur until some time after exposure, appellant's injury was not sustained and the cause of action did not accrue prior to 1973. The time appellant was injured must be established by competent medical evidence. The court notes that it is not adopting the discovery rule, which triggers the running of the statute when the injury is or should have been discovered. Adoption of such a rule by the state courts must be mandated by the legislature.

Counsel for Appellant
George Edward Allen III
Allen, Allen, Allen & Allen
1809 Staples Mill Rd., P.O. Box 6855, Richmond VA 23230
(804) 359-9151

Counsel for Appellees
Robert M. Hughes III, C. Michael Montgomery, Glen A. Huff, Steven G. Schwartz
Seawell, McCoy, Dalton, Hughes, Gore & Timm
936 Wainwright Bldg., P.O. Box 936, Norfolk VA 23510
(804) 622-5341

James C. Roberts, Russell V. Palmore Jr.
Mays, Valentine, Davenport & Moore
23d Floor, F & M Center, 1111 E. Main St., P.O. Box 1122, Richmond VA 23208
(804) 644-6011

George E.W. Voyer, William B. Eley, Kenneth A. Phillips
Taylor, Walker & Adams
Suite 520, First & Merchants Bank Bldg., P.O. Box 3530, Norfolk VA 23514
(804) 622-9913