Carter v. Fred's Plumbing & Heating, Inc.

Carter v. Fred's Plumbing & Heating Inc. (2001-533); 174 Vt. 572;
816 A.2d 490

[Filed 04-Nov-2002]

                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2001-533

                             OCTOBER TERM, 2002


  Harold Carter	                       }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Department of Labor and Industry
                                       }	
  Fred's Plumbing & Heating Inc.,      }
  Employers Mutual, American           }	DOCKET NO. M-25299
  Fidelity/AIG, Travelers/Aetna,       }
  Fidelity/Continental	               }	

             In the above-entitled cause, the Clerk will enter:

       Plaintiff appeals a summary judgment by the Commissioner of Labor and
  Industry, which held that his claim against defendants was barred by the
  five-year statute of limitations encompassed in the Occupational Disease
  Act, 21 V.S.A. § 1006(a) (1987) (repealed by 1999, No. 41, § 8(a)(1) (the
  "ODA").  We affirm.

       From 1957 until 1988, plaintiff worked as a plumber.  He was employed
  first by Hackett's Plumbing and Heating, and then by Hackett's successor in
  interest, defendant Fred's Plumbing and Heating, Incorporated.  Until 1981,
  he worked in the field.  Over the course of his career, it is alleged that
  plaintiff was exposed to asbestos.  After being diagnosed with pulmonary
  asbestosis on June 4, 1999, plaintiff filed a Worker's Compensation claim
  on July 7, 1999.  Eighteen years lapsed between his last allegedly
  injurious exposure to asbestos in 1981 and his diagnosis with the disease
  in 1999.  

       After plaintiff filed his claim, five insurance companies moved for
  summary judgment, arguing that any claim was barred by the statute of
  limitations.  Additionally, each denied its own specific liability.  At the
  time of those motions, however, the employer was unrepresented and had not
  yet participated in the case.  After the Commissioner of Labor and Industry
  issued an order granting the insurers' motions, plaintiff filed a notice of
  appeal with the Orleans Superior Court.  Promptly thereafter, the
  Commissioner withdrew her decision and invited an appearance from the
  employer.  The Commissioner then received a motion for summary judgment
  from the employer, as well as renewed motions for summary judgment from the
  insurers, and granted all in an amended ruling.  

       In so ruling, the Commissioner relied primarily on the fact that the
  ODA and its five-year limitations period was in effect both at the time
  plaintiff was alleged to be injured by asbestos, and when he was finally
  diagnosed with pulmonary asbestosis, the date of disablement.  In either
  case, the Commissioner held that the limitations period ran from the "last
  injurious exposure."  Id. § 1006(a) (1987).
   
 

       Defendant-insurers maintain that the Commissioner's jurisdiction was
  lost at the time claimant appealed the first summary judgment ruling to the
  Orleans Superior Court.  They argue that the Commissioner lacked the
  jurisdiction to unilaterally withdraw her June 6, 2001 ruling.  Therefore,
  defendants argue that her amended ruling has no legal effect and cannot now
  be properly appealed.  Claimant argues that Commissioner's order was never
  final, because it preceded any appearance by the true party defendant the
  employer.  

       In her amended ruling, the Commissioner noted that "any determination
  as to the liability of the insurers is one for the superior court, not this
  department."  Indeed, while the liability of an insurer under the statute
  is primary when the insurer undertakes to defend an employer,  Morrisseau
  v.Legac, 123 Vt. 70, 78, 181 A.2d 53, 59 (1962),  where an issue arises
  between insurers and the employer as to coverage, the primary question
  facing the court is the liability of the employer.  Issues of rights and
  liabilities which arise between insurers and the employer are not within
  the jurisdiction of the Commissioner.  Id.  

       While it is true that an appeal from a final order concludes the
  agency's jurisdiction, prior to entry of a final order in an action
  involving multiple claims or parties any "other form of decision is subject
  to revision at any time before the entry of judgment adjudicating all the
  claims and rights and liabilities of all the parties."  V.R.C.P. 54(b); see
  also Szirbik v. R.K. Miles, Inc., 137 Vt. 108, 400 A.2d 1001 (1979) (per
  curiam) (when judgment order does not dispose "of all the claims, rights
  and liabilities of all the parties," there is no appellate jurisdiction
  absent a Rule 54(b) determination).  If a court or agency enters an order
  that fails to adjudicate all of the claims, that order is subject to
  revision until the adjudicating body issues an order putting all the claims
  to rest.  Putney School, Inc. v. Schaaf, 157 Vt. 396, 407, 599 A.2d 322,
  328 (1991).  An order granting summary judgment to five of six potentially
  liable parties is not a final order, and as such, the Commissioner's ruling
  in this case was properly amenable to revision.  Prior to the entry of a
  decision adjudicating all the relative claims and rights of the parties,
  the Commissioner may amend her ruling.  Id; 21 V.S.A. § 668 (Cum.Supp.
  2002).

       Turning to plaintiff's substantive claims, plaintiff makes three
  arguments.  First, he claims that the ODA applies and that his claim did
  not accrue until his diagnosis in 1999, rather than at the time of exposure
  to the asbestos.  Second, he claims that if the ODA does not apply, then 21
  V.S.A. § 660(b) applies, and his claim is not time-barred under that
  statute.  Lastly, plaintiff asserts that if neither statute encompasses his
  claim, then he would be left without judicial remedy in violation of
  Vermont Const. Chapter 4, Article 4.

       By the time plaintiff's disease became apparent, there can be little
  doubt that his claim was technically barred by the ODA.  The statute of
  limitations that applies to a particular cause of action is generally the
  one in effect when the cause of action accrued.  Cavanaugh v. Abbott Labs.,
  145 Vt. 516, 521, 496 A.2d 154, 157-58 (1985).  The Occupational Disease
  Act in effect when plaintiff made his claim read, "[c]ompensation shall not
  be payable for disablement by reason of occupational disease unless such
  disablement results within five years after the last injurious exposure to
  such disease in the employment. . . ."  21 V.S.A. § 1006(a) (1987).
  Plaintiff was not diagnosed with asbestosis within the prescribed five-year
  period.  By precluding recovery for any injury that is undiscovered for
  five years, the statute is a substantive limitation on recovery for
  diseases that remained latent for longer than five years.

    

       The Workers' Compensation laws were passed with the intent to supplant
  the complicated and inconsistent results of common law.  In exchange for
  faster and more certain compensation, an employee foregoes the right to sue
  his employer.  See 21 V.S.A. § 622 (statutory right is exclusive remedy for
  employee suffering personal injury).  In Sienkiewycz v. Dressell, 151 Vt.
  421, 423-24, 561 A.2d 415, 416-17 (1989), we observed that § 622 provides
  an exclusive remedy for on-the-job injuries and precludes suits under tort
  law.  However, the plain meaning of § 1006(a), "within five years after the
  last injurious exposure to such disease," indicates that a claim such as
  the plaintiff's is time-barred if not brought within five years of
  exposure.  This Court presumes the Legislature intended statutory language
  to convey its "plain, ordinary meaning."  Burlington Elec. Dept. v. Vt.
  Dept. of Taxes, 154 Vt. 332, 335, 576 A.2d 450, 452 (1990).  

       One month after he was diagnosed with pulmonary asbestosis, and one
  week before plaintiff filed his claim, the ODA was repealed and merged with
  the Workers' Compensation Act, 21 V.S.A. § 601-§ 701 (1987 and Cum.Supp.
  2002).  Thus on July 1, 1999,  21 V.S.A. § 660(b) went into effect. 
  Section 660(b) provides specific protections for occupational diseases.  It
  reads: "a claim for occupational disease shall be made within two years of
  the date the occupational disease is reasonably discoverable and apparent." 
  21 V.S.A. § 660(b) (Cum.Sup. 2002).  Plaintiff claims that § 660(b) ought
  to apply retroactively to his claim.  Remedial statutes are entitled to
  liberal construction.  Pillsbury v. United Eng'g Co., 342 U.S. 197, 200
  (1952); Re Dexter, 93 Vt. 304, 312, 107 A. 134, 137 (1919).   "A remedial
  statute is one designed to cure a mischief or remedy a defect in existing
  laws."  Id. at 312, 107 A.  at 137 (citations omitted).  Legislative
  adoption of a discovery rule in occupational disease cases dramatically
  expands the coverage of the statute in a manner that further effectuates
  its purpose, and provides remedies where they might otherwise have been
  unavailable under the ODA.  

       Plaintiff argues that this Court should presume the Legislature
  intended retroactive application of § 660(b) in light of the latent nature
  of certain occupational diseases.  While the humanitarian purpose of §
  660(b) is apparent, its language is clear.  "Where the meaning of a statute
  is plain on its face, this Court will enforce the statute according to its
  terms for there is no need for construction; the legislative intent is to
  be ascertained from the act itself."  Burlington Elec. Dept., 154 Vt. at
  335, 576 A.2d  at 452 (quoting Hill v. Conway, 143 Vt. 91, 93, 463 A.2d 232,
  233 (1983) (internal quotations omitted)).  Nothing in § 660(b) implies an
  intent for the discovery rule to apply retroactively to occupational
  diseases.  Ordinarily, a statute does not apply to cases pending at the
  time it becomes effective.  1 V.S.A. § 214(b)(1) reads: "[t]he amendment or
  repeal of an act or statutory provision . . . shall not [a]ffect the
  operation of the act or provision prior to the effective date of the
  amendment or the repeal thereof."  § 660(b) specifically repealed the ODA,
  and replaced it with a discovery rule.  Unfortunately for plaintiff, the
  line was drawn in a manner that does not afford him relief.
        
       Plaintiff's final contention is that any statutory interpretation
  which denies his claim violates his right to a remedy under Chapter 1,
  Article 4 of the Vermont Constitution, which provides that "[e]very person
  within this state ought to find a certain remedy, by having recourse to the
  laws, for all injuries or wrongs which one may receive in person, property
  or character . . . ."  Vt. Const. ch. I, art. 4.  This Court has equated
  Article 4 with the federal Due Process Clause.  See Mellin v. Flood Brook
  Union School Dist. ___ Vt. ___, ___, 790 A.2d 408, 422 (2001).  "[Article
  4] does not create substantive claims, it merely provides access to the
  courts."  Quesnel v. Town of Middlebury, 167 

 

  Vt. 252, 258, 706 A.2d 436, 439 (1997) (citations omitted).  In Quesnel,
  this Court determined that the lack of a statutory or common law cause of
  action did not in itself violate Article 4.  Id.  Because of the plain
  language of the ODA, and because the Legislature chose not to apply section
  660(b) retroactively, plaintiff lacks a statutory or common law cause of
  action.  The claim that plaintiff has been denied a constitutional right to
  a remedy is without merit as it is within the Legislature's authority to
  define and limit a cause of action.

       Chapter II, Section 70 of the Vermont Constitution expressly
  authorizes the Legislature to establish the Worker's Compensation laws. 
  The ODA is part of the Worker's Compensation statutory framework.  "[T]he
  right to maintain such an action is afforded only by the Legislature." 
  Quesnel, 167 Vt. at 258, 706 A.2d  at 439.  This Court has found that while
  the Legislature may create "reasonable limitations on rights of action . .
  . due process does not permit the annulment of vested rights."  Lillicrap
  v. Martin, 156 Vt. 165, 178, 591 A.2d 41, 48 (1991).  The Legislature never
  interfered with a vested right of the plaintiff, rather, it limited the
  availability of a remedy.  In the absence of a vested cause of action,
  there is no constitutional deprivation or right to redress.

       Affirmed.


                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice