Granting of Summary Judgment Upheld on Appeal; Court Rules Time to File Suit Began with Prior Diagnosis of Asbestosis Based on Virginia Statute of Limitations Superior Court of Pennsylvania, January 12, 2016

The plaintiff in this case alleges that the decedent, Vincent Gatto, was exposed to asbestos while self-employed as a brick mason in Virginia. The decedent was diagnosed with asbestosis in 2003 and then with mesothelioma in 2010. The action was filed in 2011.  Following the close of discovery, several defendants moved for summary judgment “based upon the Virginia statute of limitations, Va. Code Ann. § 8.01-243(A), which requires that an action for personal injury must be brought within two years after the cause of action accrues.” The defendants argued that the cause of action accrued in 2003 when the decedent was first diagnosed with asbestosis. The lower court agreed and granted summary judgment. The plaintiff appealed that decision, arguing that the Virginia statute of limitations does not bar his claim.

The court upheld the granting of summary judgment by the lower court. Both parties agreed that pursuant to the Pennsylvania uniform statute of limitations on foreign claims act, 42 Pa.C.S. § 5521, the Virginia statute of limitations applies. The plaintiff argued that the statute of limitations did not begin to run in 2003 because the decedent was misdiagnosed with asbestosis. However, the court held: “Appellant does not dispute that Mr. Gatto was diagnosed with asbestosis in 2003. Also undisputed is that Dr. Miranda discussed the diagnosis with him. Clearly, too, Mr. Gatto was aware of the diagnosis, because he relayed that information to Dr. Everhart in 2005. These facts alone are sufficient to trigger the limitations period. Moreover, as the indivisible cause of action rule applies, the subsequent diagnosis of Mr. Gatto’s mesothelioma did not commence a new limitations period. Accordingly, Appellant’s cause of action is time-barred.”

Read the full decision here.

Leave a Reply

Next ArticleForeseeability of Injury Nor a Special Relationship Existed to Create a Duty in Secondary Exposure Case