Hogan v. Cone Mills Corp.

Judge EAGLES

dissenting.

To hold, as the majority does, that the August 1980 claim is barred by the statute of limitations is to ignore the intent of the General Assembly in its amendment of G.S. 97-53(13) to create a new cause of action for victims whose last injurious exposure was before 1963. The August 1980 claim was filed well within two years of the effective date of the legislation creating the remedy for victims whose last injurious exposure was pre-1963.

To hold that the claim here is barred by the doctrine of res judicata is to misapply the law. As quoted in the majority opinion, one of the requisites for the application of the doctrine of res judicata is “an identity of the cause of action in both the earlier and later suit.” Nash County Board of Education v. Bilt- *447 more Co., 640 F. 2d 484 , 486 (4th Cir.), cert. denied, 454 U.S. 878 , 70 L.Ed. 2d 188 , 102 S.Ct. 359 , reh. denied, 454 U.S. 1117 , 70 L.Ed. 2d 654 , 102 S.Ct. 692 (1981); Teague v. Alexander, 38 N.C. App. 332 , 247 S.E. 2d 775 (1978).

Here, there is no identity of cause of action. When the first filing was made, there was no cause of action for injuries sustained by victims whose last injurious exposure was before 1963. Only after legislative action in 1979 was there created a cause of action for such injuries.

Further, to hold that consideration of this cause of action is barred by claimant’s failure to appeal from the earlier dismissal is to foster a policy of encouraging feckless appeals. In a time of expanding litigation in the appellate division, there is no justification for a policy that encourages unmeritorious appeals.