Opinion
No. 04-05-00825-CV
Delivered and Filed: July 19, 2006.
Appeal from the 225th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-15107, Honorable Karen H. Pozza, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Leah Palombo and Jennifer Wilson, former employees of Southwest Airlines Co., appeal the trial court's order granting Southwest Airlines' summary judgment. Because the summary judgment evidence establishes as a matter of law that Palombo's and Wilson's claims are barred by limitations, we affirm the trial court's judgment.
Factual and Procedural Background
Leah Palombo and Jennifer Wilson were both employees of Southwest Airlines at its San Antonio reservations center. Palombo began working for Southwest in 1981 and Wilson began work in 1989; both quit in 2004. While employed by Southwest, they both claim to have been exposed to contaminants which caused them to suffer from various illnesses.
On November 17, 1995, Palombo prepared and signed a request for a health hazard evaluation, which specifically requested that the National Institute for Occupational Safety and Health conduct an investigation at the Southwest reservations center. In her request, Palombo stated that she had been diagnosed with various illnesses as a result of exposure to contaminants at the reservations center. Wilson submitted a similar request for a health hazard evaluation to the same agency. Wilson was also advised by Dr. Andrew Campbell in a letter dated April 25, 1995, that she had illnesses related to workplace exposure known as "sick building syndrome." Wilson filed a workers' compensation claim for an occupational disease, filed a "sick building charge" with the Equal Employment Opportunity Commission (EEOC), and complained to her union of her illnesses.
Palombo and Wilson subsequently filed this lawsuit on October 19, 2001, almost six years after they first voiced their complaints. They alleged causes of action for negligence, intentional conduct, common-law fraud, battery, and intentional infliction of emotional distress. Southwest filed a motion for summary judgment asserting that Palombo's and Wilson's claims were barred by the applicable statute of limitations and were also barred by the exclusive remedy provisions of the workers' compensation statute. Southwest also stated in its motion that Palombo and Wilson did not have any evidence of an intent to injure, which is an essential element necessary to avoid the workers' compensation bar. A hearing on Southwest's motion was held on September 30, 2005, at which time the court entered a general summary judgment order in favor of Southwest; the order was signed October 13, 2005. This appeal followed.
Standard of Review
We review the trial court's granting of a summary judgment de novo. Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no pet.). We will uphold a summary judgment only if there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). We view the evidence and its reasonable inferences in the light most favorable to the non-movant. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
In a motion for summary judgment based upon the affirmative defense of limitations, the burden is on the movant to establish as a matter of law that the applicable statute of limitations bars the action. KPMG Peat Marwick., 988 S.W.2d at 748. The movant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the non-movant discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Id. If the movant establishes that the statute of limitations bars the action, the non-movant must then bring forth evidence raising a fact issue to avoid the statute of limitations. Id.
Discussion
Palombo and Wilson assert that genuine issues of material fact exist as to whether the statute of limitations has run on their causes of action. Specifically, they assert that (1) their injuries were undiscoverable within the limitations period, (2) Southwest fraudulently concealed the presence of toxins in the workplace, and (3) they suffered individual, repeated batteries each day of work at Southwest, which continued until they both quit in 2004. They also maintain that the summary judgment was improper on grounds other than the statute of limitations; however, because Southwest's motion for summary judgment was based on several grounds and the trial court did not specify the basis for granting the summary judgment, we must affirm if any of the summary judgment grounds are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000). Because we hold that the statute of limitations expired before Palombo and Wilson filed suit and affirm the summary judgment on that basis, it is, therefore, unnecessary to address the remaining grounds on which Palombo and Wilson appeal the summary judgment. See id.
A plaintiff must commence suit for personal injuries within two years after the day the cause of action accrues. Tex. Civ. Prac. Rem. Code § 16.003(a) (Vernon Supp. 2005). Generally, a cause of action accrues, and the limitation period begins running, when a wrongful act causes a legal injury even if the plaintiff has not yet discovered the injury and all resulting damages have not yet occurred. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Accrual may be deferred, however, in two categories of cases: those in which the plaintiff pleads that the discovery rule applies and those involving fraud. Id. Discovery Rule
The Texas Supreme Court has sometimes used the term "discovery rule" to refer generally to all instances in which accrual is deferred, including fraud and fraudulent concealment. S.V., 933 S.W.2d at 4; see Williams v. Khalaf, 802 S.W.2d 651, 657 (Tex. 1990) (citing a case that "involved the `discovery rule' since there was a claim of fraudulent concealment"). At other times the court has distinguished between fraudulent concealment and the discovery rule. See Willis v. Maverick, 760 S.W.2d 642, 647 (Tex. 1988) (besides asserting the discovery rule, the plaintiff also alleged that fraudulent concealment tolled limitations). We discuss both separately here.
We first examine the applicability of the discovery rule, which is applied in those "rare" cases when "the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable." Childs v. Haussecker, 974 S.W.2d 31, 36-37 (Tex. 1998). When an illness or injury is dormant, characterized by "prolonged latency" and manifests no immediate injury to alert the potential plaintiff, the discovery rule applies. Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716, 721 (Tex.App.-San Antonio 1998, pet. denied). Under this rule, a cause of action accrues when a plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the wrongful act and resulting injury. Childs, 974 S.W.2d at 37. When a plaintiff's symptoms do eventually manifest themselves "to a degree or for a duration that would put a reasonable person on notice that he or she suffers from some injury," and he or she knows, or in the exercise of reasonable diligence should have known, that the injury is likely work-related, the discovery rule is said to be satisfied. Id. at 40. The plaintiff need not know the precise name of the disease that is causing his symptoms, nor the seriousness of the injury, to trigger the statute of limitations. Childs, 974 S.W.2d at 41.
When a plaintiff pleads the discovery rule in a summary judgment context, as Palombo and Wilson did here, the burden is on the defendant to negate the discovery rule by proving as a matter of law that no issue of material fact exists concerning when the plaintiff discovered or should have discovered the injury. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex. 1988); Weaver v. Witt, 561 S.W.2d 792, 794 (Tex. 1977). The summary judgment evidence presented by Southwest clearly established that Palombo's and Wilson's causes of action accrued in 1995, approximately six years before they filed suit. Specifically, Palombo requested on November 17, 1995 that the National Institute for Occupational Safety and Health do a health hazard evaluation on the Southwest reservations center, stating that as a result of exposure to contaminants at the reservations center she was "diagnosed with deregulated immunity system, high mold levels in blood work, [and] paplodema of the right eye." Similarly, Wilson knew of her work-related injuries in 1995. She received a letter, dated April 25, 1995, written by Dr. Andrew Campbell, who advised Wilson that "it is my opinion, based on your exposure history, your elevated rheumatoid factor and other immunological abnormalities, . . . [that your illnesses] are related to workplace exposure and are known as [s]ick [b]uilding [s]yndrome." After Wilson received this letter, she filed a workers' compensation claim on June 7, 1995 alleging that due to "workplace exposure," she had suffered an "occupation disease-sick building syndrome." She also filed a "sick building charge" with the EEOC, claiming that due to workplace exposure, she was disabled. Wilson's physician advised the EEOC that "this patient suffers from sick building syndrome." In November 1995, Wilson signed a request for a health hazard evaluation, claiming that as a result of working at the reservations center, she was suffering from multiple injuries. She also sent a letter to the union complaining that she suffered from various illnesses and injuries as a result of exposure to an unhealthy indoor environment at the reservations center. Based on this evidence, it is clear that both Palombo and Wilson discovered their injuries in 1995, leaving no issue of material fact as to the discovery of their injuries. Even if the seriousness or the precise name of the illnesses was not fully known in 1995, because both Palombo and Wilson had symptoms which put them on notice of "some injury," the discovery rule was properly satisfied. Childs, 974 S.W.2d at 41. Accordingly, the discovery rule does not circumvent the application of the two-year statute of limitations.
Fraudulent Concealment
Palombo and Wilson also assert that Southwest fraudulently concealed the presence of contaminants that were causing injuries to its employees. Palombo and Wilson claim that Southwest maintained that, "at all times the reservations center had no indoor air quality problems" and there were "no excuses for failing to work." Proof of fraudulent concealment suspends the running of limitations until such time as the plaintiffs discovered, or should have discovered, the deceitful conduct or the facts giving rise to the cause of action. Earle v. Ratliff, 998 S.W.2d 882, 888 (Tex. 1999). A party asserting fraudulent concealment must both plead the doctrine and come forward with proof raising an issue of fact with regard to that claim to defeat a motion for summary judgment. Tex. R. Civ. P. 94; Woods, 769 S.W.2d at 518. In an attempt to raise a fact issue to defeat summary judgment, Palombo and Wilson presented a case file of the inspection conducted by the Occupational Safety and Health Administration, from April 1, 1999 to June 17, 1999. However, because Palombo and Wilson knew of their injuries in 1995, they are precluded as a matter of law from relying on the estoppel effect of fraudulent concealment. Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983) Without question, Palombo and Wilson knew in 1995 the "facts, conditions, and circumstances which would cause a reasonably prudent person" to inquire, and discover the cause of action. Id. Because "[k]nowledge of such facts is in law equivalent to knowledge of the cause of action," they may not rely on fraudulent concealment as an equitable estoppel to the defense of limitations. Id. Continual Tort
Palombo and Wilson argue on appeal that, while certain causes of action may be barred by the statute of limitations, they suffered from "repeated batteries committed . . . by Southwest each and every day they worked at the . . . reservations center up and through their last day of work sometime in 2004." By raising this argument, they seek to avoid the limitations defense by applying the tolling provision for a continuing tort. See Dickson Constr., Inc. v. Fidelity and Deposit Co. of Maryland, 960 S.W.2d 845, 851 (Tex.App.-Texarkana 1997, no pet.); First Gen. Realty Corp. v. Maryland Cas. Co., 981 S.W.2d 495, 501 (Tex.App.-Austin, 1998, pet. denied) (cause of action for continuing tort does not accrue until defendant's tortious act ceases). However, issues not expressly presented to the trial court by written motion, answer, or response will not serve as grounds for reversal of a summary judgment on appeal. Tex. R. Civ. P. 166a(c); Roark v. Stallworth Oil Gas. Inc., 813 S.W.2d 492, 495 (Tex. 1991). Similarly, a matter in avoidance of the statute of limitations which is not raised by the pleadings is deemed waived. See Woods, 769 S.W.2d at 518; Cash Register Sales Service of Houston, Inc. v. Thompson, No. 01-98-01330-CV, 2001 WL 83536 at *3 (Tex.App.-Houston [1st Dist.] Feb. 1, 2001, no pet.). Although Palombo and Wilson pled battery in their petition, they did not plead a series of independent batteries occurring each day of their employment at Southwest. Because Palombo and Wilson raise this continuing tort theory in avoidance of the statute of limitations for the first time on appeal, it is waived. Tex.R.App.P. 33.1.
Accordingly, because the summary judgment evidence establishes as a matter of law that Palombo's and Wilson's claims are barred by limitations, we affirm the trial court's summary judgment.