COMBS V. ALBERT KAHN & ASSOCIATES, INC.
CIVIL PROCEDURE – Statute of limitations (asbestos)
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.