A19-0155

1
STATE OF MINNESOTA

IN SUPREME COURT

A18-2114
A19-0155

Court of Appeals Gildea, C.J.

Deborah J. Palmer, surviving spouse and Trustee
for the heirs of Gary J. Palmer,

A p p e l l a n t ,

vs. Filed: July 1, 2020
Office of Appellate Courts
Walker Jamar Company,

Defendant,

Honeywell International, Inc.,

Respondent.

________________________

DeWayne Johnston, Johnston Law Office, P.C., Grand Forks, North Dakota; and

David C. Thompson, David C. Thompson, P.C., Grand Forks, North Dakota, for appellant.

Mark R. Bradford, Jonathan C. Marquet, Jeffrey R. Pete rs, Bassford Remele, P.A.,
Minneapolis, Minnesota, for respondent Honeywell International, Inc.

Sarah E. Bushnell, Jeffrey M. Markowitz, Arthur, Chapman, Kettering, Smetak & Pikala,
P.A., Minneapolis, Minnesota; and

Cheryl Hood Langel, Brian J. Kluk, McCollum Crowley P.A., Minneapolis, Minnesota, for
amicus curiae Minnesota Defense Lawyers Association.
________________________

2
S Y L L A B U S

Because appellant filed her wrongful death action more than 6 years after her husband
learned that exposure to asbestos had caused his mesothelioma, Minn. Stat. § 573.02, subd. 1
(2018), bars her action.
Affirmed.
O P I N I O N

GILDEA, Chief Justice.

This case asks us to determine when a claim accrues in an asbestos-related wrongful
death action. Appellant Deborah Palmer br ought this wrongful death action against
respondent Honeywell International afte r her husband, Gary Palmer, died from
mesothelioma.
1 The district court granted summary judgment for Honeywell, concluding
that the statute of limitations bars Deborah’s claim because she filed her action more than
6 years after Gary learned that exposure to asbestos had caused his mesothelioma. The
court of appeals affirmed. Palmer v. Walker Jamar Co., Nos. A18-2114, A19-0155, 2019
WL 4409720 (Minn. App. Sept. 16, 2019). Because we conclu de that a claim accrues in
an asbestos-related wrongful death action when the fatal di sease is causally linked to
asbestos, we affirm.
FACTS
The facts are undisputed. In 2009, Gary ’s pulmonologist informed him that he had
calcium deposits on his lungs due to asbestos exposure. On December 24, 2011, Gary was

1 For clarity, we will refer to Gary Palmer and Deborah Palmer by their first names.

3
diagnosed with mesothelioma. The next m onth, in January 2012, Gary learned that
asbestos exposure had caused his mesothelioma . Gary and Deborah filed an asbestos-
related product liability action in North Dakota against 177 companies the following year.
Gary died of mesothelioma on March 1, 2015. On February 23, 2018, Deborah filed
this action under Minn. Stat. § 573.02 , subd. 3 (2018), against Honeywell. 2 She alleged
that Gary contracted mesoth elioma and died because he was exposed to asbestos-
containing brake products sold by Bendix Corporation.3 Deborah asserted that Gary was
exposed to the brake products while he worked as a janitor at a car dealership for 4 months
in 1974.
Honeywell moved for summary judgment, arguing that Deborah’s action was barred
because she filed it outside of the 6-year pe riod of limitations. In the alternative,
Honeywell argued that Deborah failed to establish that Gary was exposed to Bendix brake
products. The district court agreed with Honeywell and granted its motion for summary
judgment. Because Gary knew in January 2012 that asbestos exposure had caused his
mesothelioma, and because Deborah did not file her action until February 2018, the district
court concluded that the statute of limitations barred Deborah’s action. The district court

2 Deborah also sued Walker Jamar Company, asserting that Gary was exposed to
asbestos dust from his father’s work clothes while his father worked for Walker Jamar. We
declined to grant review of the issue relati ng to Deborah’s action against Walker Jamar.
Palmer v. Walker Jamar Co., Nos. A18-2114, A19-0155, Order at 1 (Minn. filed Nov. 27,
2019). The facts relating to Deborah’s action against Walker Jamar therefore are not
relevant to our decision in this case.

3 Honeywell International is the successo r-in-interest of Bendix Corporation. For
purposes of this litigation, the parties agree that Honeywell is legally responsible for the
asbestos-containing brake products that Bendix sold.

4
further determined that Deborah failed to pr ovide any evidence that Gary was exposed to
Bendix brake products.
Deborah appealed, arguing that the district court erred in concluding that the statute
of limitations barred her action. Palmer, 2019 WL 4409720, at *1. She asserted that the
period of limitations did not begin to run until Gary could identify Bendix brake products
as the cause of his mesothelioma. Id. at *4. The court of appe als rejected her argument,
determining that the period of limitations began in January 2012 when Gary became aware
that exposure to asbestos had caused his mesothelioma. Id. at *5. The court of appeals
concluded that the statute of limitations barred Deborah’s action because she filed suit more
than 6 years later.4 Id.
We granted Deborah’s petition for review.
ANALYSIS
On appeal, Deborah argues that her wron gful death claim did not accrue—and
therefore the period of limitations did no t begin to run—until it was reasonably
discoverable that Bendix brake products were the proximate cause of Gary’s
mesothelioma.5 In response, Honeywell asserts that the period of limitations began when
Gary learned that exposure to asbestos had caused his mesothelioma.

4 Because the court of appeals determined that the statute of limitations barred
Deborah’s action, the court did not address the district court’s alternative basis for
summary judgment—that Deborah failed to esta blish that Gary was exposed to asbestos
dust from Bendix brake products. Palmer, 2019 WL 4409720, at *5 n.3.

5 Deborah also argues that the district cour t erred in concluding that the limitations
period began running in 2009 when Gary was diagnosed with the calcium deposits on his

5
This case comes to our court on review of the entry of summary judgment.
Summary judgment is appropriate when there are no genuine issues of material fact and
“the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01. There are
no material facts in dispute in this case, and the only question befo re us is whether the
district court properly determined when Deborah’s wrongful death claim accrued. 6
Determining when a wrongful death claim accrue s is a question of law that we review de
novo. MacRae v. Grp. Health Plan, Inc., 753 N.W.2d 711, 716 (Minn. 2008).
In Minnesota, plaintiffs have 6 years afte r the wrongful act or omission to bring a
wrongful death claim. Minn. Stat. § 573.02, subd. 1 (2018) (“When death is caused by the
wrongful act or omission of an y person or corporation, . . . [the] action . . . may be
commenced within three years af ter the date of death provid ed that the action must be
commenced within six years af ter the act or omission.”). 7 An “[a]ction[] can only be

lungs. But the district court did not rely so lely on the 2009 diagnosis to conclude that
Deborah filed the action outside of the limitations period. Th e district court determined
that “whether the analysis focuses on the asbestos-caused calcium deposits or the asbestos-
caused mesothelioma, this ca se must be dismissed based upon an application of
Minnesota’s statute of limitations.” Because the district court concluded that Deborah filed
her action more than 6 years after Gary’s me sothelioma was linked to asbestos exposure,
we need not address Deborah’s argument relating to the calcium deposits.

6 Deborah asserts that genuine disputes of material fact exist relating to (1) whether
Gary knew that he was exposed to Bendix asbestos-containing brake products more than
6 years before this action was filed, and (2) whether the Bendix brake products were
defective and unreasonably dangerous or whether Bendix’s wrongful acts were a proximate
cause of Gary’s mesothelioma. But these fact disputes are immaterial to our inquiry about
when a wrongful death action accrues.

7 Although Deborah sued Honeywell under Minn. Stat. § 573.02 (2018), Minnesota’s
wrongful death statute, Honeywell moved for summary judgment under Minn. Stat.

6
commenced . . . after the cause of action accrues . . . .” Minn. Stat. § 541.01 (2018). And
a cause of action “accrue[s] at such time as it could be brought in a court of law without
dismissal for failure to state a claim.” Dalton v. Dow Chem. Co. , 158 N.W.2d 580, 584
(Minn. 1968).
We apply the “some damage” rule to determine when a claim accrues. Hansen v.
U.S. Bank Nat’l Ass’n , 934 N.W.2d 319, 327 (Minn. 2019). Under this rule, “the statute
of limitations begins to run when ‘some’ da mage has occurred as a result of the alleged
[negligent act].” Antone v. Mirviss, 720 N.W.2d 331, 336 (Minn. 2006) (citation omitted)
(internal quotation marks omitted); see also Dalton , 158 N.W.2d at 585 (“Until there is
some damage, there is no claim and certainly a st atute prescribing the time in which suit
must be filed . . . can never operate prior to the time a suit would be permitted.” (citation
omitted) (internal quotation marks omitted)).
Most relevant here, we have applied the some damage rule to determine when a
claim accrues in an asbestos-related wrongful death action. DeCosse v. Armstrong Cork
Co., 319 N.W.2d 45 (Minn. 19 82). DeCosse brought a wrongful death action against
respondent manufacturers after learning that her husband may have died from
mesothelioma caused by asbestos exposure. Id. at 47. Mr. DeCosse had died 4 years

§ 541.05, subd. 1(5) (2018), Minnesota’s statute of limitations for personal injury actions.
See Minn. Stat. § 541.05, subd. 1 (providing that an action “for any other injury to the
person or rights of another” “s hall be commenced within six years”). At oral argument,
the parties agreed that our analysis of the issu e before us is the same under either statute.
Because Deborah brought a wrongful death claim, we apply the wrongful death statute—
Minn. Stat. § 573.02—to determine whether her claim is barred.

7
earlier. Id. at 46–47. The respondents argued that the statute of limitations barred the
wrongful death claim. Id. at 46 (citing Minn. Stat. § 573.02, subd. 1 (1976)).
We determined that “the act or omission of exposing Mr. DeCosse to asbestos would
continue until the disease manifested itself and was causally linked to respondents’
products.” Id. at 49. We further explained that although “the disease may have manifested
itself some months before [Mr.] DeCosse died, it was apparently never linked to asbestos
or diagnosed as a mesothelioma before death.” Id. We held that, “because of the unique
character of asbestos-related deaths, wrongfu l death actions brought in connection with
those deaths accrue either upon the manifestation of the fatal disease in a way that is
causally linked to asbestos , or upon the date of death—whichever is earlier.” Id. at 52
(emphasis added). Because Mr. DeCosse’s illness had not been causally linked to asbestos,
we concluded that the claim accrued upon the date of Mr. DeCosse’s death. Id. at 48–49.
DeCosse is dispositive of the question pres ented here. Unde r our holding in
DeCosse, Deborah’s wrongful death claim accrued in January 2012. It is undisputed that
Gary knew in January 2012, years before his death, that exposure to asbestos caused the
mesothelioma. Because the me sothelioma manifested itself in a way that was causally
linked to asbestos before Gary died on March 1, 2015, DeCosse requires the earlier date—
January 2012—as the date of accrual of the wrongful death claim, id. at 52. And because
Deborah did not file this wrongful death ac tion against Honeywell until February 2018,
more than 6 years after the claim accrued, it is barred. Minn. Stat. § 573.02, subd. 1 (“Any
other action under this section may be commenced within three years after the date of death

8
provided that the action mu st be commenced within six years after the act or omission.”
(emphasis added)).
In urging us to reach a different conclusion, Deborah argues that we should adopt a
discovery rule: that the point of accrual in a wrongful death claim begins when all of the
elements of the cause of ac tion, including the id entity and fault of the tortfeasor, are
discoverable or reasonably discoverable by the plaintiff. A di scovery rule, she asserts, is
consistent with federal and Mi nnesota law. But the cases sh e cites do not compel us to
depart from DeCosse.
One of the cases Deborah relies on is Karjala v. Johns-Manville Products Corp. ,
523 F.2d 155 (8th Cir. 1975) (applying Minne sota substantive law). There, the jury
awarded damages to the plain tiff because he had contracted asbestosis from using the
defendant’s asbestos products. Id. at 156. On appeal, the defendant challenged the district
court’s instruction to the jury. Id. at 159. The jury instruction provided, in relevant part:
“The statute doesn’t commence to run against [the plaintiff] until he has contracted the
disease of asbestosis, and the process of contracting the disease does not cease until
physical impairment manifests itself.” Id. at 159 n.7. The Eighth Circuit held that the
instruction “adequately and fairly inst ructed the jury un der Minnesota law,” id. at 161,
determining that exposure to asbestos “is more in the nature of a continuing tort[,]” id. at
160. The court concluded that the statute of limitations for asbestos-related injuries begins
“when the disease manifests itself in a wa y which supplies some evidence of causal
relationship to the manufactured product[.]” Id. at 160–61.

9
Deborah argues that Karjala stands for the proposition th at a claim for asbestos-
related damages accrues when the cause of the disease is linked to a specific product and a
specific defendant. See id. (“It is when the disease manifests itself in a way which supplies
some evidence of causa l relationship to the manufactured product that . . . the statute of
limitations will begin to run.” (emphasis added)). But the jury instruction the Eighth
Circuit affirmed in Karjala focused on when the plaintiff learned that he contracted
asbestosis, not when he learned that the de fendant manufactured products that contained
asbestos. Id. at 159 n.7. The district court did not instruct the jury that the disease had to
manifest itself in a way that established a ca usal relationship to a specific defendant. Id.
Rather, the district court explained that “the disease must have progressed to a stage where
[the plaintiff] would have a provab le legal claim for his injuries.” Id. Karjala therefore
does not stand for the proposition that a claim accrues only when the asbestos exposure is
causally linked to a specific product and manufacturer.
Deborah also relies on Frederick v. Wallerich , 907 N.W.2d 167 (Minn. 2018).
Frederick is a legal malpractice case involving an unenforceable antenuptial agreement.
Id. at 170. An attorney prepared the antenuptial agreement for a client and his then-fiancée
in 2006 and then incorporated the agreement into a will the attorney drafted for the client
in 2007. Id. Although the execution of the antenuptial agreement occurred outside of the
6-year limitations period, the client argued that the attorney’s incorporation of the
agreement into the will was a separate negligent act, and th at the incorporation occurred
within the limita tions period. Id. We concluded that the client had made a minimal
showing that the drafting of the will “was an independent act of negligence, separate from

10
the 2006 execution of the antenuptial agreement,” id. at 176, and that the client had suffered
“some damage” in 2007, within the period of limitations, id. at 179, 181.
Deborah’s argument based on Frederick relies solely on the sentence in the opinion
that states that “[a]n analysis of when a claim accrues . . . necessarily involves
consideration of all elements of the claim.” Id. at 173. In Deborah’s view, Frederick
requires courts to consider “all elements of the claim” in determining when a claim accrues,
and therefore her claim did not accrue until it was reasonably discove rable that Bendix
brake products caused Gary’s mesothelioma.
Deborah’s argument fails for two reasons. First, we have recognized “the unique
character of an asbestos-related disease.” DeCosse, 319 N.W.2d at 48. Unlike legal
malpractice cases in which the date of the harm often can be readily identified, “there is
rarely a magic moment when one exposed to asbestos can be said to have contracted
asbestosis; the exposure is more in the nature of a continuing tort,” Karjala, 523 F.2d at
160. Accordingly, we use the date of death or the point at which the fatal disease manifests
“in a way that is causally linked to asbestos,” whichever is earlier, to determine when an
asbestos-related claim accrues. DeCosse, 319 N.W.2d at 52 (emphasis added).
Second, we held in Frederick that the damage resulting from the attorney’s drafting
of the will in 2007—a separate act of negligence—occurred w ithin the period of
limitations, and therefore the client’s claim was not barred. 907 N.W.2d at 176, 181. We
did not create a new requirement that the iden tity and fault of the tortfeasor must be
discoverable to the plaintiff before a court can determine that a claim has accrued.
Deborah’s reliance on Frederick is therefore misplaced.

11
Deborah further relies on the decisions in Mertz v. 999 Quebec, Inc. , 780 N.W.2d
446 (N.D. 2010) and Foster v. Johns-Manville Sales Corp., 787 F.2d 390 (8th Cir. 1986)
(applying Iowa substantive law), in which the courts applied a discovery rule to determine
when an asbestos-exposure claim accrued. But North Dakota and Iowa have each adopted
a discovery rule. Mertz, 780 N.W.2d at 452; Franzen v. Deere & Co. , 334 N.W.2d 730,
732 (Iowa 1983). We, in contrast, considered, and explicitly rejected, a discovery rule in
DeCosse. 319 N.W.2d at 52 (“[W]e still feel compelled to reject the discovery rule.”). We
determined that “[i]t is not in the public interest, absent a showing of fraudulent
concealment, to encourage, literally, the unearthing of wrongful death causes of action long
after the death has occurred because there is some suspicion that d eath was caused by a
wrongful act.” Id. If we were to adopt the discovery rule for which Deborah advocates,
we would have to overrule DeCosse.
But “[w]e are extremely relu ctant to overrule our pr ecedent[,]” and “require[] a
‘compelling reason’ to do so.” State v. Lee, 706 N.W.2d 491, 494 (Minn. 2005) (quoting
Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn. 2000)). Deborah has not provided
us with any compelling reasons to overrule DeCosse. She has not asserted that the
circumstances surrounding asbestos litig ation have ch anged since we decided DeCosse.
And while Deborah points to case law from ot her jurisdictions that have adopted the
discovery rule, rather than the some damage rule, she has not shown that our approach is
out of line with case law from other jurisdictions generally or otherwise obsolete. Finally,
in the 38 years since our decision in DeCosse, the Legislature has not changed the relevant
language in Minn. Stat. § 573.02, subd. 1, de spite returning to amen d the subdivision in

12
1983 and 2002. See Act of May 22, 2002, ch. 403, § 6, 2002 Minn. Laws 1706, 1711–12;
Act of June 14, 1983, ch. 347, § 2, 1983 Minn. Laws 2397, 2397–98 (codified as amended
at Minn. Stat. § 573.02, subd. 1 (2018)).
Under the rule we announced in DeCosse, Deborah’s wrongful death claim accrued
in January 2012 when Gary learned that asbe stos exposure had caused his mesothelioma.
See 319 N.W.2d at 52. Because Deborah did not file this wrongful death action until
February 2018, more than 6 ye ars after the claim accrued, we hold that section 573.02,
subdivision 1, bars her claim.
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.

Affirmed.