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Jones v. Buck

Decided: October 25, 1991.

HENRIETTA JONES, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF EDWIN JONES
v.
LEONARD J. BUCK, ET AL.



Lerner, J.s.c.

Lerner

The issue before me is whether a statute, which prevented the tolling of the Statute of Limitations being subsequently declared unconstitutional, is prospective or retrospective in application to an individual plaintiff.

Edwin C. Jones (hereinafter Jones)*fn1 instituted this action on May 18, 1987, alleging injury as a result of exposure to asbestos.

Jones, in his answers to interrogatories, indicated that he was informed by his family physician as early as 1983, that his chest x-rays reflected asbestosis. In August of 1984, Jones was admitted to Somerset Medical Center where he was again diagnosed with asbestosis, amongst other ailments. In addition, Jones was examined by Dr. Elaine Panitz in February 1985. Dr. Panitz provided plaintiff's attorney with a report stating that Jones suffered from "asbestotic pleural calcification and parenchymal asbestosis." The report further stated that Jones had been informed of his increased risk of lung cancer due to his combined exposure to asbestos and tobacco smoke.

Defendant, Amtorg Trading Corp., (hereinafter Amtorg), is a foreign corporation which does not have a registered agent for service within the state. Defendant brings this motion to dismiss plaintiff's complaint for failure to comply with N.J.S.A. 2A:14-2.

N.J.S.A. 2A:14-2 provides:

Every action at law for an injury to the person caused by the wrongful act, neglect or default of any person within this state shall be commenced within 2 years next after the cause of any such action shall have accrued.

In the context of asbestos litigation, the discovery principle applies. Plaintiff's cause of action would therefore not accrue "until the injured party discovers or by an exercise of reasonable diligence and intelligence should have discovered that he may have a basis for an actionable claim." Lopez v. Swyer, 62 N.J. 267, 272, 300 A.2d 563 (1973). The principle has been extended to mean that accrual occurs when plaintiff establishes a nexus between his injury and his exposure to

asbestos. Jarusewicz v. Johns-Manville Products Corp., 188 N.J. Super. 638, 644, 458 A.2d 156 (Law Division 1983).

Under the principles espoused above, plaintiff's cause of action would surely fail. The latest Jones could have alleged he lacked knowledge of a nexus between his injury and his occupational exposure to asbestos would be February 1985, when his attorney was in possession of the report of Dr. Panitz.

Plaintiff concedes that her survivorship claim would fail but for the New Jersey tolling statute, N.J.S.A. 2A:14-22. The statute provides:

If any person against whom there is any of the causes of action specified in sections 2A:14-1 to 2A:14-5 and 2A:14-8, or if any surety against whom there is a cause of action specified in any of the sections of article 2 of this chapter, is not a resident of this State when such cause of action accrues, or removes from this State after the accrual thereof and before the expiration of the times limited in said sections, or if any corporation or corporate surety not organized under the laws of this State, against whom there is such a cause of action, is not represented in this State by any person or officer upon whom summons or other original process may be served, when such cause of action accrues or at any time before the expiration of the times so limited, the time or times during which such person or surety is not residing within this State or such corporation or corporate surety is not so represented within this State shall not be computed as part of the period of time within which such an action is required to be commenced by the section. The person entitled to any such action may commence the same after the accrual of the cause therefor, within the period of time limited therefor by said section, exclusive of such time or times of nonresidence or nonrepresentation.

A corporation shall be deemed represented for purposes of this section if the corporation has filed with the Secretary of State a notice designating a ...


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