“Because federal jurisdiction in this matter rests in diversity, our role is to apply the governing state law.”
How later courts described this case
- “Because federal jurisdiction in this matter rests in diversity, our role is to apply the governing state law.”
- “North Carolina law is settled that disease is not a latent injury; instead, the legal injury and awareness of that injury occut simultaneously at diagnosis.”’
- “Because federal jurisdiction in this matter rests in diversity, our role is to apply the governing state law.” (footnote omitted)
- “[T]he Supreme Court of North Carolina does not read segments of a statute in isolation. Instead, in determining the plain meaning of the words chosen by the legislature, the Supreme Court of North Carolina reads those words within the context of the statute.”
Written by the judges who cited it.
The opinion
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1001
KENT STAHLE,
Plaintiff - Appellant,
v.
CTS CORPORATION,
Defendant – Appellee.
-------------------
NORTH CAROLINA ADVOCATES FOR JUSTICE,
Amicus Supporting Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Max O. Cogburn, Jr.,
District Judge. (1:14-cv-00048-MOC-DLH)
Argued: September 17, 2015 Decided: March 2, 2016
Before WYNN, FLOYD, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Floyd wrote the
opinion in which Judge Wynn joined. Judge Thacker wrote an opinion
concurring in the judgment.
ARGUED: Kaitlin Price, Mackenzie Salenger, WAKE FOREST UNIVERSITY
SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Earl
Thomison Holman, ADAMS HENDON CARSON CROW & SAENGER, P.A.,
Asheville, North Carolina, for Appellee. ON BRIEF: John J. Korzen,
Director, Zachary K. Dunn, Third-Year Law Student, Davis T.
Phillips, Third-Year Law Student, Appellate Advocacy Clinic, WAKE
FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina,
for Appellant. Michael W. Patrick, LAW OFFICE OF MICHAEL W.
PATRICK, Chapel Hill, North Carolina; Cathy A. Williams, WALLACE
& GRAHAM, PA, Salisbury, North Carolina, for Amicus Curiae.
2
FLOYD, Circuit Judge:
At issue in this appeal is the scope of North Carolina General
Statutes Section 1-52(16), which at the relevant time provided:
Unless otherwise provided by statute, for personal
injury or physical damage to claimant's property, the
cause of action, except in causes of actions referred to
in G.S. 1-15(c), shall not accrue until bodily harm to
the claimant or physical damage to his property becomes
apparent or ought reasonably to have become apparent to
the claimant, whichever event first occurs. Provided
that no cause of action shall accrue more than 10 years
from the last act or omission of the defendant giving
rise to the cause of action.
The Supreme Court of North Carolina has explained that this statute
“establishes what is commonly referred to as the discovery rule,
which tolls the running of the statute of limitations for torts
resulting in certain latent injuries,” although “such actions
remain subject to the [10-year] statute of repose provision.”
Misenheimer v. Burris, 637 S.E.2d 173, 175-76 (N.C. 2006).
Appellant Kent Stahle was diagnosed with leukemia. He
subsequently brought a complaint against Appellee CTS Corporation
(CTS). Stahle alleges that CTS was responsible for dumping toxic
solvents from an Asheville-area manufacturing plant into a local
stream, and that childhood exposure to the contaminated stream
water many years ago caused his leukemia. The district court
dismissed Stahle’s complaint, holding that the statute of repose
in Section 1-52(16) barred his action.
3
We disagree. The Supreme Court of North Carolina has not yet
directly resolved whether Section 1-52(16) applies to disease
claims. As a federal court sitting in diversity faced with an
unresolved question of state law, we must predict how the question
would be decided by that state’s highest court. Because we
understand that under North Carolina law a disease is not a “latent
injury,” we conclude that the Supreme Court of North Carolina would
not find Section 1-52(16) applicable to Stahle’s claim.
Accordingly, we reverse and remand the case to the district court
for further proceedings.
I.
CTS is a Delaware corporation that was licensed to do business
in North Carolina. CTS purportedly owned CTS of Asheville, Inc.
(CTS of Asheville), a now-dissolved North Carolina corporation.
From 1959 to 1983, CTS of Asheville operated a manufacturing
facility in Buncombe County, North Carolina. As part of its
manufacturing operations, CTS of Asheville used various toxic
solvents, including trichloroethylene. CTS of Asheville allegedly
dumped large quantities of these toxic contaminants onto its
property and into a stream known as Dingle Creek.
From 1959 until 1968, Stahle lived with his family on a
property on Dingle Creek, downstream of CTS of Asheville’s
manufacturing plant. During this period, Stahle was exposed to
4
the contaminated water of Dingle Creek. Many years later, Stahle
was diagnosed with Chronic Myelogenous Leukemia.
On February 20, 2014, Stahle filed a one-count complaint
against CTS in the Western District of North Carolina. Stahle
alleges that CTS of Asheville’s negligence in dumping toxic
chemicals into Dingle Creek caused his leukemia. CTS moved to
dismiss Stahle’s complaint, principally on the basis that it was
time-barred under North Carolina General Statutes
Section 1-52(16), the second sentence of which provides that “no
cause of action shall accrue more than 10 years from the last act
or omission of the defendant giving rise to the cause of action.”
CTS argued that the last possible relevant “act or omission of the
defendant” occurred in 1968 when Stahle moved away from Dingle
Creek; as such, the statute applied to bar any action by Stahle
not brought by 1978. Stahle responded that precedent of the
Supreme Court of North Carolina and decisions of this Circuit
established that statutes such as Section 1-52(16) do not apply to
claims arising from disease.
The magistrate judge recommended that CTS’s motion to dismiss
be granted. The magistrate judge found that the statutory text of
Section 1-52(16) was unambiguous and did not contain an exception
for diseases. The district court agreed with the recommendation
and dismissed Stahle’s action with prejudice. Stahle timely
appealed.
5
II.
We review a district court’s grant of a motion to dismiss de
novo. Johnson v. Am. Towers, LLC, 781 F.3d 693, 706 (4th Cir.
2015). This appeal presents a question of statutory
interpretation, which we also review de novo. Food Lion, Inc. v.
Capital Cities/ABC, Inc., 194 F.3d 505, 512 (4th Cir. 1999).
Because federal jurisdiction in this matter rests in
diversity, 1 our role is to apply the governing state law. See BP
Prods. N. Am., Inc. v. Stanley, 669 F.3d 184, 188 (4th Cir. 2012).
“It is axiomatic that in determining state law a federal court
must look first and foremost to the law of the state’s highest
1 Although not raised at any time in the district court, on
appeal we noted a possible defect in subject matter jurisdiction.
The ostensible parties were completely diverse in apparent
satisfaction of 28 U.S.C. § 1332(a). However, the conduct alleged
in Stahle’s complaint focused not on Defendant-Appellee CTS, but
on the long-ago-dissolved CTS of Asheville, who, like Stahle, was
a North Carolina citizen. North Carolina law permits claims
against a dissolved corporation that were unknown at dissolution
to be brought against the dissolved corporation’s shareholder(s).
See N.C. Gen. Stat. §§ 55-14-07 to -08. Although perhaps implicit
in Stahle’s pleadings, the complaint lacked an explicit technical
relational allegation concerning CTS’s ownership of the former CTS
of Asheville. Following supplemental briefing by the parties, we
are satisfied that we have subject matter jurisdiction in this
case, and under 28 U.S.C. § 1653, deem Stahle’s complaint amended
as proposed in his supplemental brief. See Trans Energy, Inc. v.
EQT Prod. Co., 743 F.3d 895, 901 (4th Cir. 2014) (“[Section 1653]
allows for the curing of jurisdictional pleading defects on
appeal.”). We express no view on the merits of Stahle’s amended
pleading.
6
court, giving appropriate effect to all its implications.”
Assicurazioni Generali, S.p.A. v. Neil, 160 F.3d 997, 1002 (4th
Cir. 1998). If, as here, the state’s highest court has not
directly addressed the issue, a federal court “must anticipate how
it would rule.” Liberty Univ., Inc. v. Citizens Ins. Co. of Am.,
792 F.3d 520, 528 (4th Cir. 2015). 2 In other words, our task here
is to anticipate whether the Supreme Court of North Carolina would
rule that North Carolina General Statutes Section 1-52(16) bars
Stahle’s action.
III.
A.
This is not the first time we have anticipated North Carolina
law on the subject of disease claims and personal injury statutes
of repose. In Hyer v. Pittsburgh Corning Corp. we articulated our
understanding that “the [North Carolina] Supreme Court does not
consider disease to be included within a statute of repose directed
at personal injury claims unless the Legislature expressly expands
the language to include it.” 790 F.2d 30, 34 (4th Cir. 1986)
(quotation omitted). Hyer is still the law in this Circuit, and
2 A lack of controlling precedent on a state rule of decision
might merit certification of the issue to that state’s highest
court. However, North Carolina has no certification procedure in
place for federal courts to certify questions to its courts. See
AGI Assocs., LLC v. City of Hickory, N.C., 773 F.3d 576, 579 n.4
(4th Cir. 2014).
7
we are bound to follow it here. E.g., Demetres v. E. W. Constr.,
Inc., 776 F.3d 271, 275 (4th Cir. 2015); United States v. Collins,
415 F.3d 304, 311 (4th Cir. 2005) (“A decision of a panel of this
court becomes the law of the circuit and is binding on other panels
unless it is overruled by a subsequent en banc opinion of this
court or a superseding contrary decision of the Supreme Court.”
(quoting Etheridge v. Norfolk & W. Ry. Co., 9 F.3d 1087, 1090 (4th
Cir. 1993))).
Section 1-52(16) functions as a statute of repose directed at
certain personal injury claims. The North Carolina General
Assembly has not expressly expanded the language to include
disease. Therefore, under our understanding of North Carolina law
as articulated in Hyer, we conclude that the Supreme Court of North
Carolina would not consider Section 1-52(16) applicable to claims
arising out of disease.
B.
CTS argues that Hyer is distinguishable because it analyzed
a different statute of repose. As stated above, the conclusion
announced in Hyer is broad enough to encompass the statute at issue
here. However, even assuming our articulation of North Carolina
law in Hyer was broader than necessary to resolve that case—such
that it should be considered non-binding dicta—we nevertheless
8
conclude that applying the underlying reasoning in Hyer leads to
the same result here.
In Hyer, we considered the scope of the statute of repose in
North Carolina General Statutes Section 1-50(6). Section 1-50(6)
was enacted in 1979 as part of “An Act Relating to Civil Actions
for Damages for Personal Injury, Death or Damage to Property
Resulting From the Use of Products.” See 1979 N.C. Sess. Laws 689
(Products Liability Act). At that time, Section 1-50(6) provided:
No action for the recovery of damages for personal
injury, death or damage to property based upon or arising
out of any alleged defect or any failure in relation to
a product shall be brought more than six years after the
date of initial purchase for use or consumption.
Hyer, 790 F.2d at 32. The plaintiff in Hyer was diagnosed with a
disease, asbestosis, in 1981, and alleged in an action brought the
same year that his disease had been caused by asbestos-related
products manufactured by the defendant. Id. at 31-32. In
response, the defendant presented evidence that it had sold its
last product containing asbestos in 1972, meaning that nine years
had passed before the action was brought. Id. at 32. The district
court ruled that the action was time-barred by the six-year limit
in Section 1-50(6).
We reversed, principally relying on the Supreme Court of North
Carolina’s intervening decision in Wilder v. Amatex Corp., 336
S.E.2d 66 (N.C. 1985). Hyer, 790 F.2d at 32. As we explained in
Hyer, Wilder also involved a disease claim, and the Wilder court
9
faced the question of whether yet another statute of repose, the
then-operative North Carolina General Statutes Section 1-15(b),
“applie[d] to claims arising out of disease.” 790 F.2d at 33
(quoting Wilder, 336 S.E.2d at 68-69). That statute provided:
Except where otherwise provided by statute, a cause of
action, other than one for wrongful death or one for
malpractice arising out of the performance or failure to
perform professional services, having as an essential
element bodily injury to the person or a defect or damage
not readily apparent to the claimant at the time of its
origin, is deemed to have accrued at the time the injury
was discovered by the claimant, or ought reasonably to
have been discovered by him, whichever event first
occurs; provided that in such cases the period shall not
exceed ten years from the last act of the defendant
giving rise to the claim for relief.
Hyer, 790 F.2d at 32-33. After reviewing the Supreme Court of
North Carolina’s analysis of Section 1-15(b), we noted its
“conclusion that ‘the legislature intended [Section 1-15(b)] to
have no application to claims arising from disease.’” Hyer, 790
F.2d at 33 (quoting Wilder, 336 S.E.2d at 73). We highlighted the
Supreme Court’s finding that the statute’s “primary purpose was to
change the accrual date from which the period of limitations begins
to run on latent injury claims” and to add “a ten-year statute of
repose . . . to latent injury claims.” Hyer, 790 F.2d at 33
(quoting Wilder, 336 S.E.2d at 69). We quoted Wilder’s statement
that unlike latent injury claims, “disease presents an
intrinsically different kind of claim” and noted our understanding
10
that “North Carolina has always recognized” the distinction. Hyer,
790 F.2d at 33 (quoting Wilder, 336 S.E.2d at 70). 3
With this understanding of Wilder, we returned to our analysis
of the statute of repose in Section 1-50(6). We noted our
cognizance “that Wilder concerned § 1-15(b) while we construe § 1-
50(6)” but found that “the implications of Wilder with respect to
the construction to be placed on § 1-50(6)” were plain. Hyer, 790
F.2d at 33-34. We concluded that “[Wilder] makes it plain . . .
that the [North Carolina] Supreme Court does not consider disease
to be included within a statute of repose directed at personal
injury claims unless the Legislature expressly expands the
language to include it.” Id. at 34 (quotation omitted). We
3 Hyer also quoted extensively from the Wilder court’s
explanation of why disease is “intrinsically different” than
latent injury claims:
Diseases such as asbestosis, silicosis, and chronic
obstructive lung disease normally develop over long
periods of time after multiple exposures to offending
substances which are thought to be causative agents. It
is impossible to identify any particular exposure as the
“first injury.” Indeed, one or even multiple exposures
to an offending substance in these kinds of diseases may
not constitute an injury. The first identifiable injury
occurs when the disease is diagnosed as such, and at
that time it is no longer latent.
790 F.2d at 33 (quoting 336 S.E.2d at 70). It is natural to think
of disease as having a latency period and latency is a concept
common to non-legal discussions of disease. This common
association between the concepts of disease and latency may explain
why Wilder provided (and Hyer quoted) such an extended discussion
of why, in a legal sense, disease is not a “latent injury.”
11
predicted that the Supreme Court of North Carolina would conclude
that Section 1-50(6) did not bar disease claims. Id.
We have repeatedly affirmed our understanding of North
Carolina law as articulated in Hyer. For example, in Bullard v.
Dalkon Shield Claimants Trust, we held that the principles stated
in Wilder were not limited only to “occupational” diseases. 74
F.3d 531, 534 (4th Cir. 1996); see also id. at 534 n.6 (citing
cases applying Hyer). We noted that we understood the Supreme
Court of North Carolina’s decision in Wilder to be based not on
the specific characteristics of a particular disease, but on
characteristics of disease as a general phenomenon. See id. at
535. We further noted in Bullard that “[t]he Wilder court
recognized that ‘[b]oth the [North Carolina Supreme] Court and the
[North Carolina] legislature have long been cognizant of the
difference between diseases on the one hand and other kinds of
injury on the other from the standpoint of identifying legally
relevant time periods.’” 74 F.3d at 534 (second alteration in
original) (quoting Wilder, 336 S.E.2d at 71).
Returning to the case at bar, we are cognizant that Hyer and
Bullard concerned Section 1-50(6) while we now construe
Section 1-52(16). However, we see no meaningful distinction
between Section 1-50(6) and Section 1-52(16) such that the
principles in Wilder would extend to the former but not to the
latter. CTS suggests that Section 1-50(6) contains ambiguity not
12
present in Section 1-52(16), and that only such ambiguity made
application of Wilder appropriate in Hyer. But CTS does not
identify the pertinent ambiguity in Section 1-50(6), or what about
Section 1-52(16) eliminates ambiguity. The operative language in
each provision is quite similar (emphasis added):
Section 1-50(6): No action for the recovery of damages
for personal injury . . . based upon or arising out of
any alleged defect or any failure in relation to a
product shall be brought more than six years after the
date of initial purchase for use or consumption.
Section 1-52(16): [F]or personal injury . . . the cause
of action . . . shall not accrue until bodily harm to
the claimant . . . becomes apparent or ought reasonably
to have become apparent . . . [p]rovided that no cause
of action shall accrue more than 10 years from the last
act or omission of the defendant . . . .
Indeed, to the extent the bare language of each provision differs,
we think Section 1-52(16) admits of at least as much ambiguity, if
not more.
Additionally, the common ancestry of these statutes of repose
reinforces the applicability of Hyer here. Both Section 1-50(6)
and Section 1-52(16) were enacted in the 1979 Products Liability
Act. See 1979 N.C. Sess. Laws 689. This same Act also repealed
the predecessor statute of repose at issue in Wilder, Section 1-
15(b). Id.
CTS argues that the language of the parent statute in Wilder
was sufficiently different such that Wilder should not extend to
the daughter statute at issue here, Section 1-52(16). We concluded
13
in Hyer, however, that Wilder extended to the other daughter
statute, Section 1-50(6). The linguistic differences CTS points
to here between parent and daughter were also present in Hyer, and
we do not see a meaningful difference between the two daughter
statutes that would undermine a straightforward application of
Hyer. In fact, of the two sister statutes, Section 1-52(16) is
more closely linked to the parent statute (the “heir apparent”
perhaps). Cf., e.g., Pembee Mfg. Corp. v. Cape Fear Const. Co.,
Inc., 329 S.E.2d 350, 353-54 (N.C. 1985) (describing the similar
provision and effect of Section 1-15(b) and Section 1-52(16)). If
the Wilder rule extends to Section 1-50(6), as we concluded it did
in Hyer, we conclude it also extends to Section 1-52(16).
Finally, we take a small measure of comfort in the fact that
although Hyer and Bullard have been on the books and applied for
several decades, neither the North Carolina General Assembly nor
the North Carolina courts have taken exception to our expressed
understanding of North Carolina law or the implications of the
Wilder decision. The Supreme Court of North Carolina has
recognized that the legislature’s decision not to amend a statute
that has been interpreted by a court is some evidence that the
legislature approves of that interpretation. See, e.g., State v.
Ellison, 738 S.E.2d 161, 164 (N.C. 2013) (citing cases). The
Supreme Court of North Carolina also “always presume[s] that the
Legislature acted with full knowledge of prior and existing law.”
14
Dickson v. Rucho, 737 S.E.2d 362, 369 (N.C. 2013) (quotation
omitted). Amicus North Carolina Advocates for Justice informs us
that the General Assembly has acted at least eight times since
Wilder to amend various statutes of repose and limitations without
undoing any judicial application of the law relating to claims
arising from disease. See Br. Amicus Curiae North Carolina
Advocates for Justice 4.
Of particular note, in 2009 the General Assembly specifically
repealed Section 1-50(6), the statute of repose interpreted in
Hyer and Bullard, and enacted Section 1-46.1 in its place. See
2009 N.C. Sess. Laws 420. However, the only textual change to the
new product liability action statute was to replace “six years”
with “12 years.” Id. Moreover, the enacting law further provided
that “[n]othing in this act is intended to change existing law
relating to product liability actions based upon disease.” Id.
Though certainly not dispositive, we think the General Assembly’s
consideration and reenactment of the language of Section 1-50(6)
in Section 1-46.1, with specific reference to “existing law” and
presumed knowledge of judicial interpretations of the statute, is
at least some evidence of approval of the Wilder line of cases.
In short, we re-affirm our understanding that “the [North
Carolina] Supreme Court does not consider disease to be included
within a statute of repose directed at personal injury claims
unless the Legislature expressly expands the language to include
15
it.” Hyer, 790 F.2d at 34 (quotation omitted). We also re-affirm
our understanding that the Supreme Court of North Carolina has
recognized that “the [North Carolina] legislature ha[s] long been
cognizant of the difference between diseases on the one hand and
other kinds of injury on the other from the standpoint of
identifying legally relevant time periods.” Bullard, 74 F.3d at
534 (quoting Wilder, 336 S.E.2d at 71). Thus, looking to the law
of North Carolina’s highest court and “giving appropriate effect
to all its implications,” Assicurazioni Generali, S.p.A., 160 F.3d
at 1002, consistent with our precedents we anticipate that the
Supreme Court of North Carolina would rule that Section 1-52(16)
is not applicable to Stahle’s claim arising from disease.
IV.
The district court did not discuss the applicability of Hyer
or Bullard in reaching its decision. Instead, leaning heavily on
a decision of the Eleventh Circuit, Bryant v. United States, 768
F.3d 1378 (11th Cir. 2014), the district court concluded that the
statutory text of Section 1-52(16) was facially unambiguous and
applied to Stahle’s disease claim. Although the Eleventh Circuit
of course was not bound by our prior decisions in Hyer or Bullard,
the district court was, and, as discussed earlier, erred in not
applying our precedent.
However, even if Hyer and its progeny were not the law of
this Circuit, and we were faced with determining the scope of
16
Section 1-52(16) without those precedents, we would still reverse.
As discussed below, North Carolina courts are guided by the
principle of “plain meaning” when construing statutes. While the
district court correctly adduced that principle, it did not carry
it into practice “as enunciated and applied by the state’s highest
court.” Volvo Trademark Holding Aktiebolaget v. Clark Mach. Co.,
510 F.3d 474, 482 (4th Cir. 2007). The district court focused
narrowly on the isolated text of subsection 16 to determine its
plain meaning. However, the Supreme Court of North Carolina “does
not read segments of a statute in isolation.” Rhyne v. K-Mart
Corp., 594 S.E.2d 1, 20 (N.C. 2004).
Read in the context of North Carolina’s statutory limitations
and repose scheme, Section 1-52(16) appears plainly to apply to
some—but not all—personal injury claims. Specifically, it appears
to apply to that set of personal injuries for which “bodily harm
to the claimant . . . becomes apparent” at some point in time after
the injury, N.C. Gen. Stat. § 1-52(16); that is, it applies to
latent injuries.
This conclusion is further supported by North Carolina
caselaw. Although the Supreme Court of North Carolina has not
construed Section 1-52(16) specifically in a disease case, it has
construed the statute in other contexts and also opined on its
general operation in dicta. Weighing these cases, we conclude
that the Supreme Court of North Carolina considers
17
Section 1-52(16) applicable only to latent injuries. Because
North Carolina law clearly establishes that a disease is not a
latent injury, Wilder, 336 S.E.2d at 70-71, we anticipate that the
Supreme Court of North Carolina would not consider
Section 1-52(16) applicable to Stahle’s disease claim.
A.
As the Supreme Court of North Carolina has explained, “[w]hen
the language of a statute is clear and without ambiguity, it is
the duty of [a court] to give effect to the plain meaning of the
statute.” Diaz v. Div. of Soc. Servs., 628 S.E.2d 1, 3 (N.C.
2006). Importantly, however, the Supreme Court of North Carolina
“does not read segments of a statute in isolation.” Rhyne, 594
S.E.2d at 20. Instead, in determining “the plain meaning of the
words chosen by the legislature,” the Supreme Court of North
Carolina reads those words “within the context of the statute.”
Brown v. Flowe, 507 S.E.2d 894, 895-96 (N.C. 1998); accord, e.g.,
Dickson, 737 S.E.2d at 370; Watson Indus. v. Shaw, 69 S.E.2d 505,
511 (N.C. 1952) (“Few words are so plain that the context or the
18
occasion is without capacity to enlarge or narrow their
extension.”) (quotation omitted). 4
CTS urges us, in essence, to eschew a contextual reading of
Section 1-52 and find that subsection 16 by itself is clear and
unambiguous and applies to Stahle’s claim. Notwithstanding that
this approach is inconsistent with the principles of North Carolina
statutory construction just articulated, we think the argument
fails on its own terms.
First, in Misenheimer, the Supreme Court of North Carolina
stated: “We find N.C.G.S. § 1-52(16) to be ambiguous on its face.”
637 S.E.2d at 175. The Misenheimer court was not considering the
clarity of Section 1-52(16) with respect to a disease claim, and
a statute may be facially ambiguous as to only some applications
while having discrete unambiguous application elsewhere. However,
Misenheimer significantly undermines CTS’s argument that the
statute is unambiguous even in isolation, and our analysis of
subsection 16 certainly is informed by the Supreme Court of North
Carolina’s determination that the statute is “ambiguous on its
face.”
4 Cf. also, e.g., FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120, 133 (2000) (“It is a fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme. A court must therefore interpret the statute as a
symmetrical and coherent regulatory scheme, and fit, if possible,
all parts into an harmonious whole.”) (internal citations and
quotations omitted).
19
Second, CTS’s principal argument that subsection 16 has
unambiguous application to disease claims is that the text does
not explicitly exclude disease claims. True enough. However, the
text does not explicitly include disease claims either. Absent
explicit textual inclusion of disease, CTS’s argument turns on
disease being unambiguously included within the set of “personal
injuries” to which subsection 16 is addressed. We are skeptical,
not least because the Supreme Court of North Carolina in
Misenheimer specifically found that Section 1-52(16) “is ambiguous
as to what is intended by the use of the words ‘personal injury.’”
637 S.E.2d at 175.
Regardless, CTS’s argument is based on reading subsection 16
in isolation. As noted above, this is not the approach to
statutory construction articulated by the Supreme Court of North
Carolina. To determine whether there is a clear and unambiguous
plain meaning of the words in Section 1-52(16), we must read those
words in their statutory context. 5
5As noted, North Carolina courts “always presume[] that the
Legislature acted with full knowledge of prior and existing law,”
including judicial interpretations and the common law. Dickson,
737 S.E.2d at 369 (quotation omitted). For example, in Rowan
County Board of Education v. U.S. Gypsum Co., 418 S.E.2d 648 (N.C.
1992), the plaintiff school board brought an action to recover
asbestos remediation costs. The last of the defendant’s products
had been installed 24 years before the plaintiff sued, and the
defendant argued that a host of statutes of limitations and repose,
including Section 1-52(5) and Section 1-50(6), barred the suit.
Id. at 650-52. The Supreme Court of North Carolina found that the
20
Chapter 1 of the North Carolina General Statutes covers “Civil
Procedure,” within which Subchapter II covers “Limitations” and
provides both general limitations on civil actions as well as
limitations applicable to numerous specific types of civil
actions. The first general provision, Section 1-15, states that
“[c]ivil actions can only be commenced within the periods
prescribed in this Chapter, after the cause of action has accrued,
except where in special cases a different limitation is prescribed
by statute.” N.C. Gen. Stat. § 1-15(a). The “periods prescribed”
are provided in a host of subsequent sections. The periods
prescribed for “the commencement of actions, other than for the
recovery of real property” are set forth in Article 5. Id. § 1-
46.
Article 5 is divided into ten different sections, each of
which enumerates the various types of actions that must be
commenced within a certain period of time, ranging from 12 years,
id. § 1-46.1, to two months, id. § 1-54.1. The sixth of these
sections, Section 1-52, enumerates types of actions that must be
statutes contained an exception for the school board, as a
political subdivision of the state, under the common law doctrine
of nullum tempus occurrit regi (“time does not run against the
king”). Id. at 651-54. The statutes in Rowan County, some of
which are relevant here, contained no explicit textual reference
to such an exception. We do not read that case as a departure
from North Carolina’s focus on plain meaning; we read it as further
recognition that the plain meaning of words comes from context,
and that context includes both the statutory and jurisprudential
environments in which the statutory words were laid down.
21
commenced “[w]ithin three years.” Id. § 1-52. Section 1-52 in
turn is broken into twenty different subsections.
Most of these twenty subsections are similar in form,
describing different types of civil actions; they comprise a list,
enumerating those actions that are timely if brought “[w]ithin
three years.” Id. § 1-52. Grammatically, most of these
subsections are incomplete. They are sentence fragments
enumerating different categories of civil actions, and must be
read in conjunction with the section’s introductory text to pull
in the “three years” language (and even then do not become
grammatically complete sentences).
For example, the text of the second subsection reads only:
“Upon the official bond of a public officer.” Id. § 1-52(1a).
Read with the introductory phrase at the beginning of Section 1-52,
the combined text becomes: “Within three years an action . . .
[u]pon the official bond of a public officer.” This combined
fragment, incorporated into the overarching general limitation
provision of Section 1-15 leads to a complete statutory command:
“Civil actions [upon the official bond of a public officer] can
only be commenced within [three years], after the cause of action
has accrued, except where in special cases a different limitation
is prescribed by statute.” Id. §§ 1-15(a), 1-52, 1-52(1a).
Relevant here, subsection 5 of Section 1-52 specifically
limits actions “[f]or criminal conversation, or for any other
22
injury to the person or rights of another, not arising on contract
and not hereafter enumerated.” Id. § 1-52(5). The language “any
other injury to the person or rights of another” is extremely
broad, and appears to establish a three year statute of limitations
for any non-contract-based action arising from an “injury to the
person,” unless the action is thereafter specifically enumerated.
Reading down the subsections of Section 1-52, we come at last
to subsection 16 (as it read at the relevant time):
Unless otherwise provided by statute, for personal
injury or physical damage to claimant's property, the
cause of action, except in causes of actions referred to
in G.S. 1-15(c), shall not accrue until bodily harm to
the claimant or physical damage to his property becomes
apparent or ought reasonably to have become apparent to
the claimant, whichever event first occurs. Provided
that no cause of action shall accrue more than 10 years
from the last act or omission of the defendant giving
rise to the cause of action.
Id. § 1-52(16). This subsection is structured differently than
most of the others in Section 1-52. It reads as grammatically
complete sentences without recourse to Section 1-52’s introductory
text (in fact becoming ungrammatical when read with the “three
years” introductory text). Nor can it easily be incorporated into
the general limitation command of Section 1-15.
CTS argues that it is undisputed that the first sentence of
subsection 16 sets forth a three-year statute of limitations for
all causes of action covered by the provision, and that the second
23
sentence sets forth a ten-year repose period. 6 CTS further argues
that subsection 16 by its express terms applies to all causes of
action “for personal injury.” Thus, the second sentence of
subsection 16 establishes a ten-year repose period for all causes
of action “for personal injury.” We disagree. 7
6 The distinction between statutes of limitations and repose
was thoroughly discussed in Waldburger v. CTS Corp., 723 F.3d 434,
441-42 (4th Cir. 2013), reversed 134 S. Ct. 2175 (2014). However,
CTS’s suggestion that Waldburger supports their argument misses
the mark. The decisions in Waldburger concerned whether the
federal Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) pre-empted state statutes of repose,
including that contained in the second sentence of North Carolina
General Statute 1-52(16). The Supreme Court in Waldburger held
that the North Carolina statute of repose was not preempted. 134
S. Ct. at 2185-88. At issue here is whether the non-preempted
North Carolina statute applies to claims arising from disease.
This issue was not before the courts in Waldburger, and Waldburger
has no bearing on the current case.
7 Although CTS chooses not to carry it so far, an argument
could be made that the second sentence of subsection 16 sweeps
even broader. Read alone, the second sentence is devoid of any
language limiting it to a particular type of cause of action. It
provides that “no cause of action shall accrue more than 10 years
from the last act or omission of the defendant giving rise to the
cause of action.” N.C. Gen. Stat. § 1-52(16). Without context,
this could be read as a blanket bar on the accrual of any action
after ten years.
We are confident this is not the intended effect. We would
expect that such a generally-applicable limitation on actions
would appear in the general provisions portion of the statute
(Article 3, “Limitations, General Provisions”) rather than within
the sixteenth subsection of the sixth section within an article
governing only non-real property-based civil actions. It is most
natural to read the second sentence of subsection 16 as applicable
only to those actions covered by the first sentence. Such an
understanding also prevents conflict with various other statutes.
For example, if the ten-year period in the second sentence covered
all causes of action, then the twelve-year period in Section 1-
46.1, covering certain products liability actions, would be
24
The first sentence of subsection 16 does not say, expressly
or otherwise, that “all causes of action for personal injury must
be commenced within three years”; it says: “Unless otherwise
provided by statute, for personal injury . . . the cause of action
. . . shall not accrue until bodily harm to the claimant . . .
becomes apparent.” Id. § 1-52(16). The operative verb is
“accrue,” suggesting in the first instance that subsection 16 is
an accrual provision. Further, the first sentence only has
meaningful effect for those personal injuries for which the harm
is not immediately apparent: that is, latent injuries. For
personal injuries where the harm is immediately apparent, this
provision would serve no meaningful purpose.
But most importantly, reading subsection 16 as encompassing
all personal injury actions would render the personal injury
language in the preceding subsection 5 meaningless. Subsection 5
establishes a three-year statute of limitation expressly for
actions for “any other injury to the person.” See, e.g.,
Misenheimer, 637 S.E.2d at 177 (“Personal injuries are covered in
[Section] 1-52(5) . . . .”). Reading subsection 16 as CTS proposes
meaningless. Cf., e.g., Lunsford v. Mills, 766 S.E.2d 297, 304
(N.C. 2014) (explaining that it is “fundamental” that courts should
“not construe an individual section in a manner that renders
another provision of the same statute meaningless”) (quotation
omitted); Brown v. Brown, 539 S.E.2d 621, 625 (N.C. 2000) (“Courts,
of course, presume that the General Assembly would not intend
something so absurd as contradicting itself in the same statute.”)
25
would read the language of subsection 5 out of North Carolina’s
statutory scheme, a result strongly disfavored by North Carolina.
The Supreme Court of North Carolina considers it “a fundamental
principle of statutory interpretation that courts should evaluate
a statute as a whole and not construe an individual section in a
manner that renders another provision of the same statute
meaningless.” Lunsford v. Mills, 766 S.E.2d 297, 304 (N.C. 2014)
(quotation omitted). We decline to construe subsection 16 in such
a manner.
Reading North Carolina’s statute as a whole, and heeding the
Supreme Court of North Carolina’s guidance that we should not
construe one statutory provision so as to render another
meaningless, we conclude that subsection 5 is the pertinent statute
of limitation for civil actions for an “injury to the person.” We
conclude that subsection 16 in turn is an accrual provision that
applies to a subset of those actions, namely those in which the
harm is not immediately apparent, but rather “becomes apparent” at
some later point in time. In other words, Section 1-52(16) applies
to certain latent injuries. We think these conclusions are plain
from the text of the North Carolina statute, and as further
explained below, comport with North Carolina caselaw.
B.
26
While the Supreme Court of North Carolina has not directly
addressed the applicability of Section 1-52(16) to disease claims,
it has had occasion to opine generally on the operation of the
statute. CTS argues that the Supreme Court of North Carolina has
all but held subsection 16 applicable to disease claims, citing to
language in two cases, Wilder and Dunn v. Pacific Employers
Insurance Co., 418 S.E.2d 645 (N.C. 1992). While the language in
Wilder and Dunn was dicta, well-considered dicta of a state’s
highest court is relevant to a federal court sitting in diversity.
See, e.g., Private Mortg. Inv. Servs., Inc. v. Hotel & Club
Assocs., Inc., 296 F.3d 308, 312 (4th Cir. 2002).
At issue in Wilder was a legacy statute of repose,
Section 1-15(b). Although Section 1-52(16) was not at issue, the
Wilder court did reference the statute in discussing the purpose
of Section 1-15(b). The Supreme Court of North Carolina noted
that the “primary purpose” of Section 1-15(b) was “to change the
accrual date from which the period of limitations begins to run on
latent injury claims,” and that Section 1-15(b) “[was] not intended
to be a statute of limitations governing all negligence claims,
such as the statute of limitations contained in the first clause
of [Section] 1-52(16).” 336 S.E.2d at 69. From this, CTS argues
that the Supreme Court of North Carolina considers Section 1-
52(16) to govern all negligence claims.
27
CTS also points us to Dunn, where the issue was the timeliness
of a wrongful death action. The decedent had been diagnosed with
liver cancer in August 1985 and died a little less than two years
later. 418 S.E.2d at 646. The wrongful death action was brought
by his widow just less than two years after the decedent’s death
(or nearly four years after the diagnosis). Id. The operative
statute, Section 1-53(4), provided a two-year limit on bringing
wrongful death actions, but further barred an action where “the
decedent would have been barred, had he lived, from bringing an
action for bodily harm because of the provisions of
[Section] 1-15(c) or [Section] 1-52(16).” Id. (quoting N.C. Gen.
Stat. § 1-53(4)). The defendant in Dunn argued that Section 1-
52(16) would have barred an action by the decedent, had he lived,
three years after his diagnosis; since almost four years had
passed, the suit should be barred. Id. at 647.
The Supreme Court of North Carolina rejected this argument,
holding that the wrongful death statute’s proviso only barred
actions that were barred by the listed statutes within the
decedent’s lifetime. Id. at 647-48. Because the decedent died
within three years of his diagnosis, his claim was not time-barred
in life, and his widow had two years from his death to bring the
wrongful death action. Id. CTS here argues that implicit in Dunn
was a finding by the Supreme Court of North Carolina that Section
1-52(16) normally applied to claims arising from disease.
28
If the language in Wilder and Dunn constituted the Supreme
Court of North Carolina’s only extant pronouncements on Section 1-
52(16), CTS’s argument would have considerably more force.
However, picking out just Wilder and Dunn from the caselaw is akin
to “looking over a crowd and picking out your friends.” Yellow
Freight Sys., Inc. v. Reich, 8 F.3d 980, 987 (4th Cir. 1993)
(quotation omitted). Other Supreme Court of North Carolina cases,
including more recent cases with fuller analysis of
Section 1-52(16), seriously undermine CTS’s position.
For example, three years after Wilder, the Supreme Court of
North Carolina decided Boudreau v. Baughman, 368 S.E.2d 849 (N.C.
1988). The plaintiff in Boudreau seriously injured himself using
a chrome-metal chair manufactured by the defendant. The defendant
asserted that the action was barred by several North Carolina
statutes of repose, which the court ultimately rejected as it found
the dispute was governed by Florida law. 368 S.E.2d at 853-56,
853 n.2. However, in discussing the potential applicability of
North Carolina law, the Supreme Court stated:
Defendants also contend that the action would be time-
barred by N.C.G.S. § 1-52(16) . . . . We need not
consider the effect of the ten-year period prescribed by
section 1-52(16). This section replaced [legacy
Section] 1-15(b) . . . and its primary purpose appears
to have been the adoption of the “discovery” rule. That
is, it was intended to apply to plaintiffs with latent
injuries. It is undisputed that plaintiff was aware of
his injury as soon as it occurred. Thus the statute is
inapplicable on the facts of this case.
29
368 S.E.2d at 853 n.2 (internal citations omitted). Boudreau
indicates that the Supreme Court of North Carolina considers
Section 1-52(16) “inapplicable” to plaintiffs who are “aware of
[their] injury as soon as it occur[s].” In other words, Section 1-
52(16) “was intended to apply to plaintiffs with latent injuries.”
Id.
In 2006, the Supreme Court of North Carolina decided
Misenheimer. Misenheimer dealt directly with the interaction of
Sections 1-52(5) and 1-52(16), though in an action for “criminal
conversation” rather than disease. 8 The court explained that
Section 1-52(5) was “[t]he pertinent statute of limitations” 9 while
Section 1-52(16) “establishes what is commonly referred to as the
discovery rule, which tolls the running of the statute of
limitations for torts resulting in certain latent injuries,”
though “such actions remain subject to the statute of repose
provision in [Section] 1-52(16).” 637 S.E.2d at 175-76. Like
Boudreau, Misenheimer suggests to us that the Supreme Court of
8Section 1-52(5) covers actions “[f]or criminal conversation,
or for any other injury to the person or rights of another, not
arising on contract and not hereafter enumerated.” N.C. Gen. Stat.
§ 1-52(5).
9 In Hyer, we indicated that Section 1-52(5) was the pertinent
statute of limitations for disease claims. See 790 F.2d at 34
(“[W]e note that Wilder also confirms . . . that when plaintiff
sued within three years after his illness was first diagnosed, his
suit was timely under N.C.G.S. § 1-52(5).”).
30
North Carolina considers Section 1-52(16) applicable only in “such
actions,” that is, "torts resulting in certain latent injuries.”
Importantly, the Misenheimer court further explained that the
express reference to “criminal conversation” in Section 1-52(5)
did not bar application of Section 1-52(16) in certain cases. 637
S.E.2d at 176. The Misenheimer defendant had noted that
Section 1-52(16) stated that it applied “[u]nless otherwise
provided by statute,” and argued that Section 1-52(5)’s specific
reference to “criminal conversation” meant that such actions were
“otherwise provided by statute” and thus Section 1-52(16) could
not apply. Id. The Supreme Court rejected this argument,
specifically noting the effect such a reading would have on actions
for personal injuries. The court noted that, in addition to
criminal conversation, “[p]ersonal injuries are covered in
[Section] 1-52(5)” and defendant’s argument, if accepted, would
bar application of Section 1-52(16) even though that section also
“specifically applies to ‘personal injury.’” Id. at 176-77. To
harmonize the two provisions, the court found that “[Section] 1-
52(5)’s reference to criminal conversation does not bar the
application of [Section] 1-52(16) when the injury is latent.” Id.
at 176.
Following the reasoning in Misenheimer, we anticipate that
the Supreme Court of North Carolina would find that Section 1-52(5)
applies to personal injury actions, but that Section 1-52(5)’s
31
reference to personal injury does not bar the application of
Section 1-52(16) to personal injury actions when the injury is
latent. We understand that North Carolina law is settled that
disease is not a latent injury; instead, the legal injury and
awareness of that injury occur simultaneously at diagnosis.
Wilder, 336 S.E.2d at 70-71. As such, Section 1-52(16) would not
apply to a disease claim. Accord Boudreau, 368 S.E.2d at 853 n.2
(“[P]laintiff was aware of his injury as soon as it occurred. Thus
[Section 1-52(16)] is inapplicable . . . .”).
While there is perhaps some tension among the dicta in the
cases discussed above, it is improbable that any court’s dicta
over the course of four decades would be perfectly harmonized for
all future applications. (We suspect our own caselaw admits of
some inconsistencies over that span.) However, looking to the
well-considered dicta in these cases as a whole, and “giving
appropriate effect to all its implications,” Assicurazioni
Generali, S.p.A., 160 F.3d at 1002, we conclude that the Supreme
Court of North Carolina considers Section 1-52(16) only applicable
to certain latent injuries, and because disease is not a latent
injury, would not find Section 1-52(16) applicable to Stahle’s
claim.
32
V.
For the foregoing reasons, we reverse the district court’s
order and remand for further proceedings.
REVERSED AND REMANDED
33
THACKER, Circuit Judge, concurring:
I concur in the majority’s outcome, but I write
separately for three reasons. First, I would not rely so heavily
on our decision in Hyer v. Pittsburgh Corning Corp., 790 F.2d 30
(4th Cir. 1986), which construed a North Carolina statute
significantly different than the one at bar, and which has never
been cited in a reported North Carolina decision. Second, I
address Appellee’s unfounded argument that there is no “meaningful
difference” between the claims in CTS v. Waldburger, 134 S. Ct.
2175 (2014), and the claim in this case. Finally, I note that a
North Carolina certified question mechanism would have provided us
with a beneficial tool in deconstructing this novel and unsettled
state law issue, which four circuits have now addressed with
varying results.
I.
This case boils down to the meaning of the phrase
“personal injury” in N.C. Gen. Stat. § 1-52(16). If the North
Carolina Supreme Court would read this phrase to encompass disease
claims, Appellant’s claim is barred. If not, the claim proceeds.
A.
In determining whether disease claims fall within the
meaning of “personal injury,” the majority turns first to this
34
court’s decision in Hyer v. Pittsburgh Corning Corp., which states,
“the [North Carolina] Supreme Court does not consider disease to
be included within a statute of repose directed at personal injury
claims unless the Legislature expressly expands the language to
include it.” 790 F.2d 30, 33-34 (4th Cir. 1986) (emphasis
supplied) (internal quotation marks omitted). Because Hyer
construed a different statute, relied on a North Carolina decision
characterizing § 1-52(16) quite broadly, and has not been cited by
a reported North Carolina decision, I would consider the passage
above “non-binding dicta.” See Ante at 9.
Hyer construed a North Carolina statute of repose, N.C.
Gen. Stat. § 1-50(6), which provided a bar to recovery for damages
“for personal injury” based on a product failure or defect, if the
claim was brought more than six years after “the date of initial
purchase for use or consumption.” N.C. Gen. Stat. § 1-50(6)
(1979). In concluding that § 1-50(6)’s statute of repose did not
apply to claims based on disease, Hyer relied heavily on the North
Carolina Supreme Court’s decision in Wilder v. Amatex Corp., 336
S.E.2d 66 (N.C. 1985), which held that the statute of repose in
the repealed N.C. Gen. Stat. § 1-15(b) did not apply to disease
claims. See Hyer, 790 F.2d at 33 (stating that in Wilder, the
North Carolina Supreme Court “conclu[ded] that ‘the legislature
intended [§ 1-15(b)] to have no application to claims arising from
disease’” (quoting Wilder, 336 S.E.2d at 73).
35
But in 1986, when Hyer stated the rule upon which the
majority relies, § 1-52(16) had been on the books over six years,
and even though it, too, contained a statute of repose ostensibly
directed to “personal injur[ies],” Hyer failed to mention § 1-
52(16). Moreover, Wilder specifically contrasted § 1-52(16) with
§ 1-15(b), stating, “We note, importantly, that G.S. 1–15(b) is
not intended to be a statute of limitations governing all
negligence claims, such as the statute of limitations contained in
the first clause of G.S. 1–52(16).” Wilder, 336 S.E.2d at 69
(emphasis supplied). Thus, an equally permissible reading of Hyer—
against the legal landscape at the time—is that § 1-52(16) was not
included in the umbrella of “statutes of repose directed at
personal injury claims” because it applied generally to “all
negligence claims.”
In addition, the language of § 1-15(b) differed
significantly from the language of § 1-52(16). By its terms, § 1-
15(b) applied to “cause[s] of action . . . having as an essential
element bodily injury to the person . . . not readily apparent to
the claimant at the time of its origin,” and stated that in “such
cases,” i.e., cases involving a latent bodily harm, a 10-year
statute of repose applies. Gen. Stat. § 1-15(b) (repealed 1979).
Section 1-52(16), which replaced § 1-15(b), contains broader
language, applying to “personal injury . . . cause[s] of action,”
and stating—without qualification—that “no cause of action shall
36
accrue” more than 10 years after the defendant’s last act or
omission. As explained by the majority, we now have more guidance
from North Carolina state courts as to the breadth of § 1-52(16).
But at the time of the Hyer decision, Wilder was the only North
Carolina decision comparing § 1-52(16)’s language to that of § 1-
15(b), and it suggested that § 1-52(16) is much broader than its
predecessor statute. Therefore, Hyer’s reading of Wilder—which
construed a statute specifically encompassing claims involving
bodily injuries not apparent to the claimant when they occur—does
not dictate the same result for stare decisis purposes regarding
a statute generally referencing “personal injur[ies].”
Finally, although certainly not dispositive, in
predicting what the North Carolina Supreme Court would do in this
situation, I am reluctant to afford substantial weight to a
decision that has never been cited in a reported North Carolina
state court decision. Indeed, Hyer has only been cited by this
court in four decisions in 30 years, and even then, only in the
context of § 1-50(6). See Bullard v. Dalkon Shield Trust, 74 F.3d
531, 533-34 (4th Cir. 1996); Guy v. E.I. DuPont de Nemours & Co.,
792 F.2d 457, 459-60 (4th Cir. 1986); Silver v. Johns-Manville
Corp., 789 F.2d 1078, 1080 (4th Cir. 1986); Burnette v. Nicolet,
Inc., 818 F.2d 1098, 1101 (4th Cir. 1986).
B.
37
However, even without the binding authority of Hyer, I
agree with the majority that the North Carolina Supreme Court would
likely treat the case at hand as falling outside the scope of the
statute of repose in § 1-52(16).
Post-Hyer, the North Carolina Supreme Court made clear
that the phrase “personal injury” as used in § 1-52(16) “has a
wide range of meanings”; is ambiguous; and placed in the proper
context, must be a “latent” injury, i.e., an injury not
“‘reasonably . . . apparent’” to the claimant at the time it
occurs. Misenheimer v. Burris, 637 S.E.2d 173, 175 (N.C. 2006)
(quoting Gen. Stat. § 1-52(16) (2005)).
At first blush, one would think a disease is—or at least
breeds—a latent injury. But that is not the way North Carolina
sees it. North Carolina has recognized that diseases can be “the
result [not] of a single incident but rather of prolonged exposure
to hazardous conditions of a disease-causing agent.” Booker v.
Duke Med. Ctr., 256 S.E.2d 189, 204 (N.C. 1979). Thus, the “legal
injury and awareness of that injury occur simultaneously at
diagnosis.” Ante at 33 (citing Wilder, 336 S.E.2d at 70-71).
For these reasons—and those more cogently set forth in
Section IV of the majority opinion—I agree that the North Carolina
Supreme Court would not view Appellant’s disease claim as a
“personal injury” under § 1-52(16).
38
II.
Second, like the majority, I too reject Appellee’s
argument that the Supreme Court’s decision in CTS Corp. v.
Waldburger, 134 S. Ct. 2175 (2014), dictates our outcome. See
Ante at 24 n.6. Appellee submits “there is no meaningful
difference between the Waldburger claims and [Appellant]’s claim,”
and “[Appellant’s] action was properly dismissed for the same
reasons as in Waldburger.” Appellee’s Br. 8-9. It is true that
in both cases, “the last alleged act or omission” of CTS occurred
decades before suit was filed. Id. at 8. And it is also true
that the statute of repose provision in § 1-52(16) applies to
claims based on “physical damage to [one’s] property” (one of the
bases for Waldburger’s nuisance claim) and “personal injury.” Gen.
Stat. § 1-52(16).
However, in Waldburger, the Supreme Court did not
address whether the plaintiffs’ claims may be subject to the
statute of repose in Gen. Stat. § 1-52(16), as written. Rather,
the issue in Waldburger was whether the Comprehensive
Environmental Response, Compensation and Liability Act (“CERCLA”)
preempted that statute of repose. After the Supreme Court’s
Waldburger decision, leaving the statute of repose intact, this
case takes the next step of asking whether Appellant’s disease
claim falls within its parameters. In making this argument, CTS
39
basically ignores the crux of this appeal. Therefore, Waldburger
is inapplicable here.
III.
Finally, I write to express my view that a North Carolina
certification procedure would have provided this panel with a
beneficial tool. As we have noted many times, North Carolina is
the only state in the Fourth Circuit without such a mechanism.
See In re McCormick, 669 F.3d 177, 182 n.* (4th Cir. 2012) (“North
Carolina law . . . does not provide a mechanism by which we could
certify the question to North Carolina’s Supreme Court, unlike the
law in the other States in the circuit.”); see also United States
v. Vinson, 805 F.3d 120, 122 n.1 (4th Cir. 2015); Town of Nags
Head v. Toloczko, 728 F.3d 391, 398 (4th Cir. 2013); Ellis v.
Louisiana-Pac. Corp., 699 F.3d 778, 783 n.4 (4th Cir. 2012); E.M.A.
ex rel. Plyler v. Cansler, 674 F.3d 290, 312 n.1 (4th Cir. 2012);
MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 284 (4th Cir.
2008); N. Carolina Right to Life, Inc. v. Bartlett, 168 F.3d 705,
711-12 n.1 (4th Cir. 1999). Indeed, North Carolina remains the
only state in the nation never to have enacted some form of
certification procedure. See Eric Eisenberg, A Divine Comity:
Certification (at Last) in North Carolina, 58 Duke L. J. 69, 71
(2008). This is despite numerous calls to do so. See id. at 71
n.18 (citing Jessica Smith, Avoiding Prognostication and Promoting
40
Federalism: The Need for an Inter-Jurisdictional Certification
Procedure in North Carolina, 77 N.C. L. Rev. 2123, 2125 (1999));
Jona Goldschmidt, Certification of Questions of Law: Federalism in
Practice 98 (1995); J. Donald Hobart, Jr., Note, B. Currie v.
United States and the Elusive “Duty to Commit” Dangerous Mental
Patients: Conflicting Views of North Carolina Law from the Federal
Courts, 66 N.C. L. Rev. 1311, 1334 & n.162 (1988)).
As a federal court sitting in diversity, “our role is to
apply governing state law, or, if necessary, predict how the
state’s highest court would rule on an unsettled issue.” Horace
Mann Ins. Co. v. Gen. Star Nat’l Ins. Co., 514 F.3d 327, 329 (4th
Cir. 2008) (internal quotation marks omitted). Because the issue
presented in this appeal is not settled by the North Carolina
courts, we must, in a sense, “trade our judicial robes for the
garb of prophet.” Walters v. Inexco Oil Co., 670 F.2d 476, 478
(5th Cir. 1982) (alteration and internal quotation marks omitted).
Some characterize the process of predicting what a state court
would do as “speculative or crystal-ball gazing,” but without the
benefit of a certification procedure, “it is a task which we may
not decline.” McKenna v. Ortho Pharm. Corp., 622 F.2d 657, 662
(3d Cir. 1980).
The case at hand presents an ideal candidate for
certification, as the issue before us is especially “novel” and
“unsettled.” See Grattan v. Bd. of Sch. Comm’rs of Baltimore City,
41
805 F.2d 1160, 1164 (4th Cir. 1986) (certification is appropriate
“when [we are] required to address a novel issue of local law which
is determinative in the case before [us]”); cf. Md. Code Ann.,
Cts. & Jud. Proc. § 12–603 (providing that the Court of Appeals
may answer a certified question if “[1] the answer may be
determinative of an issue in pending litigation in the certifying
court and [2] there is no controlling appellate decision,
constitutional provision, or statute of this State”); Va. Sup. Ct.
Rule 5:40(a) (Supreme Court may answer a certified question if the
“question of Virginia law is determinative in any proceeding
pending before the certifying court and it appears there is no
controlling precedent on point in the decisions of this Court or
the Court of Appeals of Virginia”).
The Supreme Court of North Carolina itself has sent mixed
signals about the scope of § 1-52(16). Compare Dunn v. Pac. Emp’rs
Ins. Co., 418 S.E.2d 645, 647-48 (N.C. 1992) (holding that, in an
action based on the decedent’s death from cancer based on exposure
to hazardous chemicals, § 1-52(16) would be the proper statute of
limitations for the underlying claim for bodily injury), and
Wilder, 336 S.E.2d at 69 (suggesting that “the statute of
limitations contained in the first clause of G.S. 1–52(16)”
“govern[s] all negligence claims”), with Boudreau v. Baughman, 368
S.E.2d 849, 853 n.2 (N.C. 1988) (suggesting that § 1-52(16) was
“intended to apply to plaintiffs with latent injuries,” and is
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“inapplicable” to claimants who are “aware of [their] injury as
soon as it occur[s]”), and Misenheimer, 637 S.E.2d at 175-76
(explaining that latent injury claims remain subject to the statute
of repose in § 1-52(16)); see also Ante at 29-30.
And outside of North Carolina’s borders, after the
publication of this decision, four circuits will have addressed
this state law question, all with different views of the statute’s
scope. Compare In re Dow Corning Corp., 778 F.3d 545, 552 (6th
Cir. 2015) (“The Fourth Circuit has consistently applied th[e]
‘disease exception,’ first announced by the North Carolina Supreme
Court in Wilder v. Amatex, to diseases incurred from exposure to
harmful products”), and Bryant v. United States, 768 F.3d 1378,
1381 (11th Cir. 2014) (holding that the statute of repose in § 1-
52(16) unambiguously applies to disease claims), and Klein v.
DePuy, Inc., 506 F.3d 553, 559 (7th Cir. 2007) (in holding that Ҥ
1-52(16) is not limited to latent injury claims,” relying on Dunn
and Wilder, rejecting Hyer, and ignoring Misenheimer).
North Carolina’s General Assembly acted swiftly to
revise § 1-52(16) with regard to groundwater contamination claims
after the Supreme Court’s Waldburger decision. Since our crystal
ball is warmed up, perhaps we can predict that the General Assembly
will also act swiftly, after this decision, to delineate the
parameters of the statute of repose in that same statute --
including whether disease claims are indeed exempt, and if so,
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what is a “disease” claim, exactly. Cf. Dow Corning, 778 F.3d at
555 (Sutton, J., dissenting) (explaining that the so-called
“disease exception” in § 1-52(16) “appears limited to diseases
that arise from exposure to a harmful product at one’s jobsite”
(emphasis in original)). And maybe the State of North Carolina
will likewise act swiftly to create a certified question mechanism,
giving its own state courts a chance to influence the
interpretation of the laws operating within its borders, rather
than leaving it to the federal courts to divine how North Carolina
should operate.
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