Ky. Decisions: Court of Appeals (published) - Jan. 6, 2006

COURT OF APPEALS DECISIONS - JAN. 6, 2006

MINUTES

PUBLISHED DECISIONS.

COMBS V. ALBERT KAHN & ASSOCIATES, INC.
CIVIL PROCEDURE - Statute of limitations (asbestos)
2004-CA-002178
Published  Affirming
Minton
Date: 1/6/2006

Combs appeals the TC's grant of SJ to Defendants, Albert Kahn and Turner Construction, due to expiration of statute of limitations. Combs had worked at GE's Appliance Park from 1973 to 1999, and was diagnosed with asbestosis in January 2000. He filed suit on July 27, 2000, alleging he was exposed to asbestos products at the Park and named a number of manufacturers and distributors as defendants. After being diagnosed with lung cancer in March 2003, Combs sought to amend his Complaint in April 2003 to add this to his personal injury claim and at the same time sought to add 2 new defendants, Kahn and Turner. Kahn was the architectural firm that designed the Park while Turner was a general contractor during the Park's initial construction. His claims against these defendants were that they negligently specified the use of asbestos products and/or failed to warn workers at the Park of such products' use. After allowing the amendment, the TC agreed with Kahn and Turner that Combs' cause of action against them began to accrue when he was diagnosed with asbestosis in January 2000, and that a 1-year SOL governed his claims.

Held: COA agreed with TC that 1-year SOL (KRS 413.140(1)) governed Combs' asbestos-related claims against Kahn and Turner. The COA dismissed the argument that these claims "related back" to the original, timely claims filed against the manufacturer and distributor defendants, as both Kahn and Turner were newly-added defendants not connected with the original defendants. As to when the cause of action began to accrue, the COA also agreed with the TC that January 2000 was the magic date. The COA reasoned that under the discovery rule, Combs first should have discovered that injury occurred from his asbestos exposure in January 2000, and it made no difference that the extent of the injury at that time (asbestosis) is not identical to the ultimate injury for which Combs seeks recovery from Kahn and Turner (lung cancer).  Combs need not fully appreciate the extent of the injury in order for a cause of action to begin to accrue, but rather only that some degree of injury has occurred. The COA recognized the application of this principle to asbestos exposure cases even though asbestosis and lung cancer are separate and distinct diseases that do not necessarily flow from one another. In this regard, Kentucky is a "one-disease" state where the first manifestation of an injury caused by toxic exposure begins a single statutory period rather than a "two-disease" state where a new cause of action accrues with each separate injury discovered.

Among equitable considerations in upholding the TC's ruling, the COA noted that Combs was well aware of his increased risk of developing lung cancer upon being diagnosed with asbestosis, as this was specifically alleged in his original Complaint filed in July 2000. The COA also rejected Combs' argument that the cause of action against Kahn and Turner began to accure on July 19, 2002, the date Combs first learned of these defendants' involvement in the Park's construction, noting that Combs had offered no explanation why this information could not have been learned earlier if reasonable diligence had been employed.

DAVIS  V. DEPT. OF REVENUE OF THE FINANCE AND ADMINISTRATION CAB.
REVENUE AND TAXATION - Out of state bonds and taxability
2004-CA-001940
Published
MINTON - VACATING AND REMANDING
Date: 1/6/2006

Held Kentucky’s tax on the income derived from bonds issued outside Kentucky violates the Commerce Clause of the United States Constitution.

Thanks to Scott Byrd, Patrick Bouldin,  John Hamlet, Cherry Henault, Sam Hinkle, Suzan J. Hixon, Chad Kessinger,  Stephen Keller,  Michelle Eisenmenger Mapes , Peter Naake,  Paul C. O'Bryan, Bryan Pierce, Alma Puissegur, Paul Schurman, and James Worthington for their efforts in digesting Kentucky's published appellate decisions.

Comments

[John Llewellyn]

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Thanks

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[John Llewellyn]

Mike:

It is amazing what you do. The lawwire has been a very helpful tool for me. You work is appreciated. At your recommendation I will make the move over to your new set up. I am now trying the test version of "FeedDemon". One thing is missing though. I was used to saving your summaries in either pdf format or in html format on my hard drive, then doing a word search of what was on my hard drive as a research tool. It doesn't seem that the FeedDemon has a option to save your summaries on to my hard drive, am I missing something?
Any assistance is appreciated.
Thanks