Supreme Court of Virginia confirms that Virginia remains a "single-disease" jurisdiction for purposes of determining when a cause of action for asbestos-related injuries accrues.

On January 10, 2013, the Supreme Court of Virginia, in Kiser v. A.W. Chesterton Co., issued a 5-2 decision holding that under Virginia Code § 8.01-249(4) a plaintiff's cause of action for damages relating to his latent mesothelioma accrued when he was first diagnosed with an asbestos-related disease (asbestosis) and not decades later when he was diagnosed with mesothelioma. The case presented a question of law that had been certified by the U.S. Court of Appeals for the Third Circuit. In its decision, the Court held that when the General Assembly amended Code § 8.01-249 in 1985 to change the accrual date for asbestos cases from the date a plaintiff is hurt to when "a diagnosis of asbestosis, interstitial fibrosis, mesothelioma, or other disabling asbestos-related injury or disease is first communicated to the person," it did not abrogate the indivisible cause of action rule in Virginia. It reasoned that nothing in the 1985 amendment, including the itemization of separate asbestos-related diseases, constitutes "express language or… necessary implication" that the General Assembly intended § 8.01-249(4) to change the long-standing, common-law rule in Virginia that a cause of action for personal injury accrues when "any injury, though slight, is sustained as the consequence of an alleged wrong, despite the fact that greater damage from the same wrong may be sustained at a later date." Though the Court acknowledged the "quandary confronting a plaintiff who has been diagnosed with an asbestos-related disease in deciding when to file an action under the current statutory and common law regime," it observed that remedying such policy-related problems is the role of the General Assembly and not the Court. Chief Justice, Cynthia Kinser, authored the opinion. Justice Millette, with whom Justice Mims joined, wrote the dissent. 

Appellees CBS Corporation, Ingersoll-Rand Company, and Trane U.S., Inc. were represented by Patricia Bugg Turner, M. F. Connell Mullins, Jr., and Henry N. Ware, Jr. of Spotts Fain PC.


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