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BellSouth Telecommunications, Inc. v. W.R. Grace & Co.—Conn.

ELR Citation: 26 ELR 20690
Nos. No. 95-7132, 77 F.3d 603/(2d Cir., 02/21/1996)

The court holds time barred an action under the Connecticut Product Liability Act (CPLA) by the owner of a building in which an asbestos-containing fireproofing material was installed, because the owner did not sue the asbestos product's manufacturer within three years of learning that abatement was necessary and that it had a cause of action for the abatement costs. Following how Connecticut courts have applied Connecticut's medical malpractice statute, which employs the same discovery statute of limitations as that employed by the CPLA, the court holds that a claim for property damage caused by asbestos accrues under the CPLA when a plaintiff discovers, or should discover, some form of actionable harm caused by an asbestos-containing product. Actionable harm, in the context of an abatement claim, occurs when the plaintiff has knowledge, or should have knowledge, of (i) actual contamination and (ii) the causal connection between the defendant's product and that contamination. Applying this rule to the case, the court holds that there is no dispute that the owner knew, or should have known, that any asbestos contamination was attributable to the manufacturer's product. The court holds that the owner suffered one continuing injury and that the injury was actionable as early as 1987. Before 1990, the owner knew that portions of its building had become contaminated with asbestos. And the claimant conducted several expensive abatement projects to control asbestos contamination in the period 1987 to 1990. The court holds that the accrual of the claim does not depend on the magnitude of the injury; although the harm the owner suffered may not have reached its fullest manifestation before the statute began to run, it did suffer some form of actionable harm before 1990.

Counsel for Plaintiff
Philip A. Lacovara
Mayer, Brown & Platt
1675 Broadway, New York NY 10019
(212) 506-2500

Counsel for Defendant
Robert P. Dolian
Cummings & Lockwood
Four Stamford Plaza
P.O. Box 120, Stamford CT 06904
(203) 327-1700

Before Winter, Jacobs and Leval, JJ.