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THE STATE OF SOUTH CAROLINA
In The Court of Appeals
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Janet B. Murphy and David M. Murphy, Appellants,

v.

Owens-Corning Fiberglas Corp., Pittsburgh Corning Corporation, ACandS, Inc., Rock Wool Manufacturing Co., Inc., The Anchor Packing Company, Rapid American Corporation, Garlock, Inc., Westinghouse Electric Corporation, Uniroyal, Inc., PPG Industries, Inc., Covil Corporation, E.I. Dupont de Nemours and Company, Defendants,

Of whom Pittsburgh Corning Corporation, Rapid American Corporation, PPG Industries, Inc., and E.I. Dupont de Nemours and Company are, Respondents.

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Appeal From Greenville County
John C. Hayes, III, Circuit Court Judge
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Opinion 3203
Heard November 4, 1999 - Filed June 26, 2000
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AFFIRMED
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L. Joel Chastain and William J. Cook, both of Ness, Motley, Loadholt, Richardson & Poole, of Barnwell; and Jeffrey T. Eddy, of Ness, Motley, Loadholt, Richardson & Poole, of Charleston, for appellants.

Ivan A. Gustafon and Christopher G. Conley, of Blasingame, Burch, Garrard, Bryant & Ashley, of Athens GA; Jackson L. Barwick, Jr., of Holmes & Thompson; and David E. Dukes, C. Mitchell Brown, Michael W. Hogue and Valerie Palmer Williams, all of Nelson Mullins, Riley & Scarborough, all of Columbia; and Carl E. Pierce, II; and Thomas J. Keaveny, II, both of Charleston, for respondents.

Amicus Curiae on Behalf of Owens-Illinois, Inc.: R. Bruce Shaw and William C. Wood, Jr., both of Nelson, Mullins, Riley & Scarborough, of Columbia.

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HUFF, J.: This case involves the application of South Carolina's Door Closing Statute.(1) Janet Murphy, a Virginia resident, alleged she developed mesothelioma as a result of "household or familial" exposure to asbestos fiber on the clothing of her father, Dr. Charles Baker. Her father worked for E. I. Du Pont de Nemours at several locations. He spent three years at the Du Pont plant in Camden, South Carolina during the 1960's. The trial court granted the respondents' Rule 12(b)(1), SCRCP, motions to dismiss based upon the Door Closing Statute.(2) Murphy and her husband appeal.(3) We affirm.

BACKGROUND

Janet Baker Murphy was born in Virginia in 1960. She lived with her parents, the Bakers, until 1978 when she entered college. After attending college, she returned to Virginia where she has resided since 1982. In July of 1995, Murphy was diagnosed with mesothelioma.

Janet Murphy's father, Dr. Charles Baker, is a chemical engineer who was employed by E. I. Du Pont de Nemours from 1951 until his retirement in 1984. He worked at the Du Pont facility in Waynesboro, Virginia from 1951 until 1966. From 1966 until 1969, Dr. Baker was employed at the Du Pont plant in Camden, South Carolina. He returned to the Waynesboro facility in mid-1969 and remained there until 1974. Dr. Baker spent the years from 1974 until the summer of 1978 at a Du Pont facility in the Netherlands. He returned to the Waynesboro plant in 1978 where he remained until his retirement in 1984.

According to Dr. Baker, his work over the years at various Du Pont facilities caused him to be exposed to asbestos dust and fibers. Dr. Baker testified by deposition that one of his major projects at the Camden plant was the development of a larger, higher capacity spinning cell for spinning Orlon acrylic fiber. The equipment involved in the spinning process was continually reconfigured. Dr. Baker stated he was exposed to insulation material while observing the removal and re-installation of the equipment. He was also exposed to asbestos in other areas of the Camden plant where various equipment changes were taking place. He stated there was always evidence of some dust in the area and he specifically recalled times when his clothes were dusty.

After his daughter was diagnosed with mesothelioma, Dr. Baker came to believe he had exposed his daughter to asbestos through his clothing. He held her as an infant and maintained a close relationship with her as she grew. Janet Murphy testified in her deposition that as a child she was "daddy's little girl." She would crawl into his lap and they would read stories or watch television on a daily basis. When her father came home from work, she would go through his coat pockets looking for mints.

In their motions to dismiss, the respondents asserted the circuit court lacked subject matter jurisdiction over the Murphys' complaint based upon application of the Door Closing Statute. After the receipt of memoranda of law and a hearing, the circuit court granted the motions.

The court stated that since the Murphys were not residents of South Carolina, jurisdiction rested on where the cause of action arose. The court held that a cause of action "arises, accrues, and springs into action only when all of the elements exist and one has a right to seek relief (i.e. a cause of action) based on such elements. Mere threat of future injury is too speculative to support present adjudication." The trial court concluded Janet Murphy's cause of action did not arise until she was diagnosed with mesothelioma in Virginia in 1995. At that point, the final element (i.e. injury) needed for a valid cause of action occurred.

STANDARD OF REVIEW

This is an appeal from the grant of a motion to dismiss for lack of subject matter jurisdiction. The question of subject matter jurisdiction is a question of law for the court. Woodard v. Westvaco Corp., 315 S.C. 329, 433 S.E.2d 890 (Ct. App. 1993), vacated on other grounds by, 319 S.C. 240, 460 S.E.2d 392 (1995). The court may consider affidavits on a question of law in a jurisdictional motion without converting the motion into one for summary judgment. Baird v. Charleston County, 333 S.C. 519, 511 S.E.2d 69 (1999).

DISCUSSION

I.

As a preliminary matter, the respondents contend the order of the circuit court is not immediately appealable because the Murphys' claims against one defendant still remain. The trial court did not grant the Rule 12(b)(1),SCRCP, motion with respect to Covil Corporation because it is a South Carolina corporation.

The respondents rely upon State ex rel. McLeod v. C&L Corp. Inc, 280 S.C. 519, 313 S.E.2d 334 (Ct. App. 1984) in support of their argument. In that case, the trial court granted summary judgment to two defendants during the course of the proceedings. The Attorney General did not take an immediate appeal from the order. However, after the entry of a final order, the Attorney General filed a cross appeal raising the issue of the summary judgment order. The two defendants argued the cross appeal should be dismissed because the summary judgment order was a final order from which an appeal had not been timely perfected. The supreme court denied the motion to dismiss and transferred the case to this court for disposition. Our opinion notes the supreme court's ruling on the motion to dismiss was binding on this court. Judge Bell, writing for this court, stated that the Attorney General's appeal from the final order was sufficient to bring the intermediate order granting summary judgment before the court for review. The opinion states that "[w]hen multiple defendants are joined in the same action, an order dismissing some but not all of them is ordinarily not final or appealable." Id. at 529, 313 S.E.2d at 340.

This particular point regarding dismissal of some, but not all, multiple defendants has not been cited subsequently by our courts. The McLeod case was cited as a general related authority in Plaza Development Services v. Joe Harden Builder, 296 S.C. 115, 370 S.E.2d 893 (Ct. App. 1988). In that case, this court held that an order granting a Rule 12(b)(6), SCRCP, motion as to some but not all claims against a single defendant was not immediately appealable. However, the Plaza Development case was overruled on that point by Link v. School District of Pickens County, 302 S.C. 1, 393 S.E.2d 176,nt.2 (1990). In Link, the supreme court noted it had previously held in Lebovitz v. Mudd, 289 S.C. 476, 347 S.E.2d 94 (1986) that an order granting a Rule 12(b)(6) motion as to one of multiple claims is directly appealable under S.C. Code Ann. Section 14-3-330(2) because it affects a substantial right and strikes out part of a pleading.

It is correct that the grant of the Rule 12(b)(1) motion in this case is not a final order as there is a remaining defendant. However, the practical effect of the grant of the motion is that it strikes out the Murphys' complaint with respect to the respondents. Viewing McLeod in light of Lebovitz and Link, we conclude an order granting a Rule 12 motion as to some, but not all of the defendants in a case, is directly appealable under Section 14-3-330(2) because it affects a substantial right and strikes out part of a pleading.

II.

The Murphys argue the trial court erred in its application of the Door Closing Statute. They assert that, with respect to an asbestos disease case, the cause of action arises in the state of exposure as opposed to the state of diagnosis. The Murphys argue the statute's requirement that the "cause of action shall have arisen . . .within this state" requires a geographical connection to South Carolina. Since some of Janet Murphy's exposure occurred in this state from 1966 through 1969, the appellants contend they meet the jurisdictional requirements of the Door Closing Statute.

In support of their geographical nexus argument, the Murphys rely heavily upon three Door Closing Statute cases. In Bumgardner v. Keene Corp, 593 F.2d 572 (4th Cir. 1979), the federal appeals court held no countervailing federal considerations required it to ignore application of the South Carolina Door Closing Statute. Accordingly, the circuit court affirmed the district court decision to dismiss the asbestos disease case. The case states Bumgardner could have maintained his suit in North Carolina, "the state where he lived, worked and was allegedly exposed to asbestos." Id. at 573. In Collins v. R. J. Reynolds Tobacco Co., 901 F. Supp. 1038 (D.S.C. 1995), the federal district court held the Door Closing Statute jurisdictionally barred a wrongful death suit by a Georgia resident against several foreign corporations. The cause of action allegedly arose from Collins's development of emphysema as a result of smoking cigarettes manufactured by the various corporate defendants. The district court concluded Collins's claims arose in Georgia "[b]ecause any cigarette purchases by Collins in South Carolina were incidental to his job as a truck driver and were minimal in nature, and because all of the remaining connections to plaintiff's claims are with Georgia. . . ." Id. at 1044. In that regard, the court noted Collins lived in Georgia; worked for a Georgia trucking company; and was diagnosed, treated, and died in Georgia. Finally, in Rosenthal v. Unarco Industries, Inc., 278 S.C. 420, 297 S.E.2d 638 (1982), the South Carolina Supreme Court held the Door Closing Statute was constitutional as it did not violate equal protection. In the opinion, the court noted the Door Closing Statute barred the plaintiff's claims as he was a New York State resident and it was undisputed "the plaintiff has sustained no exposure and has not been employed within the state of South Carolina." Id. at 425, 297 S.E.2d at 642.

We do not believe these three cases offer definitive support for the appellants' position. The Bumgardner case is a two paragraph opinion which provides no specific analysis of the facts as they relate to application of the Door Closing Statute. The Collins case notes the facts of geographical nexus with South Carolina, but it also makes a conclusion that "one test for determining where a cause of action arises is to ascertain where the delict or wrong has its effect." Collins, 901 F. Supp. at 1044. Such an argument cuts against the appellants' position since undoubtedly the delict in this case has its effect in Virginia. Finally, the Rosenthal case is not dispositive because the focus of that opinion was the constitutional law question.

The Door Closing Statute relates to the subject matter jurisdiction of the circuit courts. Nix v. Mercury Motors Express Inc., 270 S.C. 477, 242 S.E.2d 683 (1978). Our supreme court has stated the Door Closing Statute accomplishes several legislative objectives rationally related to the state's interest. These objectives are (1) favoritism to resident plaintiffs over nonresident plaintiffs, (2) provision of a forum for wrongs connected with the state while avoiding the resolution of wrongs in which the state has little interest, and (3) encouragement of activity and investment in the state by foreign corporations without subjecting them to actions unrelated to their activity within the state. Rosenthal v. Unarco Industries Inc., 278 S.C. 420, 297 S.E.2d 638 (1982).

The crucial language in the statute is "when the cause of action shall have arisen . . . within this [s]tate." In Ophuls & Hill v. Carolina Ice & Fuel Co., 160 S.C. 441, 158 S.E. 824 (1931), the supreme court defined the term "cause of action" in the context of the Door Closing Statute. The court stated "the cause of action has been described as being a legal wrong threatened or committed against the complaining party." Id. at 450, 158 S.E. at 827. See also Knight v. Fidelity & Casualty Co. of New York, 184 S.C. 362, 192 S.E. 558 (1937). With respect to the term "arise" in the Door Closing Statute, the supreme court in Cornelius v. Atlantic GreyHound Lines, 177 S.C. 93, 180 S.E. 791 (1935), equated "arise" with "accrue" and stated that a "cause of action accrues when facts exist which authorize one party to maintain an action against another." Id. at 96, 180 S.E. at 792. (quoting 1 C.J. 1146). Beyond the context of the Door Closing statute, the supreme court has stated that our cases have used the verbs "arise" and "accrue" interchangeably and a cause of action in tort accrues at the moment when the plaintiff has a legal right to sue on it. Stephens v. Draffin, 327 S.C. 1, 488 S.E.2d 307 (1997).

The elements of a cause of action in tort are (1) duty, (2) breach of that duty, (3) proximate causation, and (4) injury. Shipes v. Piggly Wiggly St. Andrews, 269 S.C. 479, 238 S.E.2d 167 (1977). In the factual context of this case, all of those elements were met when Janet Murphy was diagnosed with mesothelioma. Prior to that point, the element of injury had not been established. Once injury was established, the cause of action or "legal wrong" had "arisen" and Murphy could maintain an action in tort against the respondents. Accordingly, the cause of action arose in Virginia, not South Carolina.

The decision of the circuit court is

AFFIRMED.

CURETON, J., and MOREHEAD, A.J., concur.

1. As relevant to this case, S.C.Code Ann. §15-5-150 (1977) provides "[a]n action against a corporation created by or under the laws of any other state, government, or country may be brought in the circuit court: (2) [b]y a plaintiff not a resident of this State when the cause of action shall have arisen . . . within this State."

2. Application of the Door Closing Statute is a matter of subject matter jurisdiction. Nix v. Mercury Motor Express Inc., 270 S.C. 477, 242 S.E.2d 683 (1978).

3. Her husband filed an action for loss of consortium.