The opinion
HUSTON-DUNN, Justice,
dissenting from refusal to consider en banc.
I dissent from the Court’s refusal to consider these causes en banc.
The mechanical application of the Cavnar rale 1 to this ease, without addressing the equity that supports Cavnar, results in an unfair prejudgment interest award against the defendants. See op. at 565-567. This is because no one in the world, including the plaintiffs and defendants in the case before us, was aware at the time the incident occurred that the substance, which the defendants manufactured, would result in a latency disease whose symptoms are manifested years after the last exposure.
Cavnar was based on ideas of fundamental fairness. “Since no statute controls the award of prejudgment interest in personal injury cases, the Cavnars must rely upon equitable considerations in order to prevail on their prejudgment interest claim.” Cav-nar, 696 S.W.2d at 552. The underlying policy supporting the assessment of prejudgment interest in Cavnar was intended to prevent abuses. “A potential award of prejudgment interest advances the objective of encouraging the speedy compensation to victims, and ensures that the aim of obtaining a high recovery for victims and their survivors is not defeated by a defendant’s simple strategy of delaying payment or judgment until the award is diminished in actual value.” Id. at 554. My question to the majority is, “How *568 can a defendant delay payment on something that neither he, the plaintiff, nor anyone else in the world knew existed?”
The duty of any defendant to pay money for prejudgment interest presupposes an obligation to pay, which in turn is derived from knowledge of the incident that gives rise to a plaintiffs injuries. It is ironic in this case, in order to defeat appellants’ statute of limitations defense, certain appellees argued they were unaware that the substance, which the defendants produced, caused disease until years after any last exposure. Yet, the logic of appellants’ prejudgment interest claim imputes knowledge to the defendants, that they produced a substance that was disease causing and scientifically unknown to them at the time of the occurrence of the incidents. The equitable goal of denying a generic defendant the use of money owed to an injured plaintiff is not achieved in the case because there is no proof to determine when the defendants should have been charged with knowledge that they had injured the plaintiffs.
Following is the statute preempting Cav-nar and governing prejudgment interest, effective September 2, 1987:
[Pjrejudgment interest accrues on the amount of the judgment during the period beginning on the 180th day after the date the defendant receives written notice of a claim or on the day the suit is filed, whichever occurs first, and ending on the day preceding the date judgment is rendered.
Tex.Rev.Civ.Stat.Ann. art. 5069-1.05, § 6(a) (Vernon Supp.1993).
The Burts filed on March 22, 1985; the Frileys filed on January 27,1986. At 566. I agree with the majority that because appellants’ cases were filed before the effective date of the statute, they fall outside its governance. I disagree, however, that Cavnar dictates the majority conclusion that “prejudgment interest on past damages awards begins to accrue ‘from a date six months after the occurrence of the incident giving rise to the cause of action.’ ” At 566 (quoting Cavnar at 555).
The majority applies Cavnar as if it were a statutory mandate. Cavnar, however, is based on notions of fundamental fairness and equity. Applying the majority’s interpretation of Cavnar to the facts before us undermines the principals upon which Cavnar was founded.
We should be guided by the equitable principals of Cavnar, in combination with the equitable intent of the legislature in adopting article 5069-1.05, section 6(a), and the facts of the case before us. By doing so, we can affirm the trial court’s calculation beginning six months after the filing of the suits, and thus avoid requiring a defendant to pay prejudgment interest for the period of time that neither he, the plaintiff, nor anyone else in the world had knowledge that an injury was occurring.
. Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549 (Tex.1985).