Applicability of Utah Liability Reform Act Upheld in Latent Exposure Case

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On April 4, 2013, the Utah Court of Appeals upheld the trial court’s application of the Utah Liability Reform Act to apportion damages in a situation where defendants’ negligent acts and Plaintiff’s asbestos exposure occurred prior to the effective date of the Act, but the manifestation of injury and the complaint occurred after the effective date.

In this matter, Appellants argued that the Liability Reform Act (LRA) is not retroactive and that any statute eliminating joint and several liability may not be applied to injuries occurring prior to the effective date of the changing statute.  Appellants argued that the relationship of the parties is established at the time the injury occurs, not the time it is discovered, relying on the proposition that plaintiff was injured at time of her exposure to asbestos.  Appellants pushed for an order overturning the trial court’s application of the LRA and directing that the Comparative Negligence Act (CNA) be applied instead.

Appellees Georgia-Pacific LLC and Union Carbide Corporation challenged the argument on issues of timeliness and also argued that the Utah Supreme Court has repeatedly recognized that the governing substantive law is that which is in effect at the time a cause of action accrues.  A latent exposure cause of action accrues at the time of diagnosis or discovery of actual injury— not at time of exposure alone.  Moreover, Appellees argued, because plaintiff had asserted exposure over a forty-year period, if Appellant’s arguments are accepted, at least four different iterations of comparative/contributory fault would apply.

Oral arguments were heard in the case on January 17, 2013.

The Court of Appeals April 4, 2013 Opinion, citing Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11 (Utah 1990) noted, “A tort cause of action accrues when it becomes remediable in the courts, that is, when all elements of a cause of action come into being.”  The Court ruled that the plaintiff in the underlying peritoneal mesothelioma case did not have an actionable claim until she was diagnosed.  Until then, development of her disease was only possibility in light of her exposure to asbestos.  Accordingly, the Court held, “because [the underlying plaintiff’s] cause of action did not accrue until her diagnosis in July 2007, long after the repeal of the CNA and enactment of the LRA, we affirm the trial court’s application of the LRA.”

Case is Micah Riggs on behalf of Decedent Vickie Warren v. Georgia-Pacific LLP, Hamilton Materials, and Union Carbide Corporation, 2013 UT App. 86  (Third Judicial District Court, District of Utah, Case No. 070911933).  Statute is Utah Liability Reform Act, Utah Code §78B-5-817 et seq.