_________________________________________
GORDON VANN,
) NO.: A078272
)
Plaintiff, Cross-Defendant and
)
Respondent,
)
)
v.
) (Alameda County
TRAVELERS INDEMNITY COMPANY
) Super. Ct. No. 727815-4)
et al.,
)
)
Defendants, Cross-Complainants
)
and Appellants.
)
_________________________________________)
"Labor Code Section 5401(a) imposes the legal duty upon employers
to provide employees within one day of a reported injury, a claim form
and notice of potential eligibility for benefits. The Law Center regularly
counsels clients who are denied benefits because their employers violate
this duty; we commonly see cases where employers have failed to inform
the employee of the right to file a claim or of potential eligibility.
These victimized employees suffer the same direct and proximate damages
as those in the fraud and uninsured employer situation. We therefore
suggest that measures be taken to make it explicitly unlawful to prevent,
delay, deny, or discourage a claim through material omission. This should
at least be done when the material omission is a violation of a statutory
duty."
On the Jolly Defense subject this is what has to be said:
The leading case in California regarding the commencement of the running of the statute of limitations when the plaintiff suffers a latent toxic injury is Jolly v. Eli Lilly & Co. (1988) 44 Cal. 3d 1103, 245 Cal. Rptr. 658.
The Jolly court held that in delayed discovery cases, "a suspicion of wrongdoing, coupled with a knowledge of the harm and its cause, will commence the limitations period," i.e., "the limitations period begins when the plaintiff suspects, or should suspect that she has been wronged." Id. at pp. 1112 and 1114.
However, the Jolly court did not explain what "knowledge of the cause" of injury will suffice to begin the running of the statute.
For example: Did the client's belief that his leukemia was caused by occupational exposures trigger the statute? Was the statute triggered by his belief that the solvents he worked with caused his leukemia? Did the statute begin to run when he first learned that benzene was the culprit? Or does it begin to run when the products containing benzene are identified?
These questions were not resolved by Jolly. Nor are these questions answered by any appellate decisions interpreting Jolly. Indeed, a recent appellate case indicates that the answers to these questions may not depend on an interpretation of Jolly at all.
Although the California Supreme Court has never disapproved Jolly, the rule it created is no longer accepted to be good law in some toxic tort cases. This is so, because the Jolly rule is preempted by federal law which mandates a more liberal accrual rule than Jolly in certain personal injury and property damage cases involving hazardous substances. This conclusion logically follows from a recent construction defect case, Angeles Chemical Co. v. Spencer & Jones (1996) 44 Cal.App.4th 112.
The preemptive statute is 42 U.S.C. § 9658, which was adopted by Congress as part of the Superfund Amendments and Reauthorization Act of 1986 ("SARA"), which amended the federal Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA").
"The Act commissioned a study 'to determine the adequacy of existing common law and statutory remedies in providing legal redress for harm to man and the environment caused by the release of hazardous substances into the environment.'" Angeles Chemical Co., Inc., 44 Cal.App.4th at 122, quoting, Pub.L. No. 96-510 (Dec. 11, 1980).
"The study group was expressly charged with examining, among other things, "barriers to recovery posed by existing statutes of limitations. It was also directed to address "the need for revisions in existing statutory or common law" and "whether such revisions should take the form of Federal statutes." Id., §§ 9651(e)(4)(A), 9651(e)(4)(B).
The study group submitted its report to the President and the Congress in July 1982. The report stated in part as follows: "Commencement of the running of the statute of limitations can be a barrier to recovery under both common law and statutory remedies. This issue does not arise specifically from the applicable period of limitations which depends on the cause of action; the question is when the statute begins to run -- the time when the action accrues. The plaintiff's ability to recover will often depend on whether a liberal discovery rule is applicable. [¶] Exposure to certain hazardous wastes may result in cancer, neurological damage, and in mutagenic and teratogenic changes. Most of these types of injuries have long latency periods, sometimes 20 years or longer. With long latency periods, a rule which starts the running of the statute from the time of exposure will defeat most actions before the plaintiff knows of his injury." Id., 44 Cal.App.4th at 122-123.
In response to the study group's report, Congress passed the Superfund Amendments and Reauthorization Act (Pub.L. No. 99-499 (Oct. 17, 1986) 100 Stat. 1613). Title II, section 203(a) of that act became section 309 of CERCLA. It states in pertinent part:
"In the case of any action brought under State law for personal injury, or property damages, which are caused or contributed to by exposure to any hazardous substance, or pollutant or contaminant, released into the environment from a facility, if the applicable limitations period for such action (as specified in the State statute of limitations or under common law) provides a commencement date which is earlier than the federally required commencement date, such period shall commence at the federally required commencement date in lieu of the date specified in such State statute." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(a)(1).
CERCLA defines "federally required commencement date" as the "date the plaintiff knew that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(b)(4)(A).
The statute "creates a federally mandated discovery rule for the accrual of state law claims involving releases of hazardous substances that cause or contribute to personal injury or property damage." Angeles Chemical Co., Inc., 44 Cal.App.4th at 123.
"Practically speaking, CERCLA essentially preempts state statutes of limitations if those state law claims are based upon exposure to hazardous substances released into the environment and the applicable limitations period provides for an earlier commencement date than federal law." Id.
"Under the CERCLA preemptive statute ... plaintiffs' cause of action accrues when the plaintiffs knew or reasonably should have known that their damages were caused or contributed to by the contaminant at issue." Hawks v. City of Coffeyville, 1994 U.S. Dist. LEXIS 15163 (D. Kans. Sept. 8, 1994).
While there are similarities between the Jolly rule and 42 U.S.C. §9658, the Jolly rule appears to operate somewhat more niggardly.
Under the preemptive statute, California's statute of limitations cannot begin to run until the "date the plaintiff knew that the personal injury or property damages ... were caused or contributed to by the hazardous substance or pollutant or contaminant concerned." Angeles Chemical Co., Inc., supra, 44 Cal.App.4th at 122; quoting, 42 U.S.C. § 9658(b)(4)(A).
Whereas Jolly does not necessarily require the plaintiff to have knowledge of the particular injury-causing hazardous substance for the statute to run, the CERCLA preemptive rule apparently requires such knowledge.
Applying the preemptive CERCLA rule to the client's case, it would appear that Jolly is preempted and the statute of limitations began to run only when the client's oncologist suggested to him that it was benzene in the solvents he worked with that caused his leukemia. Whereas the case may be time-barred under Jolly, it is apparently not to be time-barred under the CERCLA preemptive statute.
Laws that the Employer broke in My case:
California Proposition 65: In 1986 California voters overwhelmingly adopted Proposition 65 which is now formally known as the Safe Drinking Water & Toxic Enforcement Act of 1986. Cal. Health & Safety Code § 25249.5 et seq. The Act has two main provisions. The first prohibits businesses from discharging carcinogens and reproductive toxins into sources of drinking water. Health & Safety Code § 25249.5. The second prohibits businesses from exposing individuals to such toxins without first giving them clear and reasonable warning of such toxic hazards. Health & Safety Code § 25249.6.
The purpose of the Hazard Communication Standard is "to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees." 29 C.F.R. § 1910.1200(a).
Chemical manufacturers and suppliers must provide their customers with a Material Safety Data Sheet (MSDS) for each hazardous chemical they produce. 29 C.F.R. § 1910.1200(g)(1) see also, 8 C.C.R. § 5194(g)(1) [the regulation in California's approved plan].
The Material Safety Data Sheets must disclose the identities of all hazardous ingredients which comprise 1% or more of the composition, and all carcinogenic ingredients which comprise .1% or greater of the composition, or which could be released in concentrations which could present a health hazard to employees. 29 C.F.R. §§ 1910.1200(g)(2)(i)(C)(2); 8 C.C.R. § 5194(g)(2)(A)(3)b.
For each hazardous chemical, the manufacturer or supplier must list on the Material Safety Data Sheet "the health hazards of the hazardous chemical, including signs and symptoms of exposure, and any medical conditions which are generally recognized as being aggravated by exposure to the chemical." 29 C.F.R. § 1910.1200(g)(2)(iv); 8 C.C.R. § 5194(g)(2)(D).
Employers must "maintain copies of the required material safety data sheets for each hazardous chemical in the workplace," and "ensure that they are readily accessible during each work shift to employees when they are in their work areas." 29 C.F.R. § 1910.1200(g)(8); see also, 8 C.C.R. § 5194(g)(8).
The premise of Haz-Comm is that by requiring chemical manufacturers and suppliers to give toxic hazard information to their customers, and by requiring all employers to make the information available to their employees, workers will receive the information provided by the manufacturer. 29 C.F.R. § 1910.1200 et seq.