This appeal involves the applicability of a statute recently enacted by the Georgia legislature. Because of the importance of this issue of Georgia law to the resolution of several pending lawsuits, we believe that the Georgia Supreme Court should have the opportunity to address the issue. We therefore certify the question to the Supreme Court of Georgia pursuant to Ga. Const. art. 6, Sec. 6, para. 4, Ga.Code Ann. Sec. 15-2-9 and Rule 37 of the Georgia Supreme Court.

CERTIFICATION FROM THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT TO THE SUPREME COURT OF GEORGIA PURSUANT TO ARTICLE VI SECTION VI PARAGRAPH IV OF THE GEORGIA CONSTITUTION.

TO THE SUPREME COURT OF GEORGIA AND THE HONORABLE JUSTICES OF THAT COURT:

The style of the case in which this certificate is made is as follows: St. Joseph Hospital, Plaintiff-Appellee, versus the Celotex Corporation and United States Gypsum Company, Defendants-Appellants, Case No. 87-8140, filed in the United States Court of Appeals for the Eleventh Circuit, on appeal from the United States District Court for the Southern District of Georgia.

On March 10, 1986 St. Joseph Hospital filed an action in federal district court against four manufacturers of asbestos-containing fireproofing sprayed in its building. Among these manufacturers were appellants Celotex Corporation and United States Gypsum Company. The fireproofing materials had been applied to steel beams in the hospital during a renovation project undertaken during 1969 and 1970. The asbestos was not discovered until March 1984, when the hospital initiated a subsequent renovation. The hospital removed the asbestos-containing material, and brought this action to recover the cost of the removal.

The defendants moved for summary judgment on the ground that the plaintiff's claims were barred by the four-year statute of limitations. See Ga.Code Ann. Sec. 9-3-30. The district court denied the motion on the ground that Georgia's discovery rule prevented the limitations period from commencing to run until St. Joseph knew or reasonably should have known that the asbestos fireproofing constituted a hazard requiring removal. After a five day trial the jury returned a verdict against Celotex for $300,000 and against USG for $200,000. The two defendants appealed.

This case, like several others involving asbestos damage to buildings, involved Georgia's discovery rule. This rule provides that a cause of action in tort will not accrue until the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, that he has been injured and that the injury may have been caused by the defendant. King v. Seitzingers, Inc., 160 Ga.App. 318, 287 S.E.2d 252, 254 (1981). At the time the parties argued the case before this court, the issue was whether the discovery rule applied to tort actions involving injury to property as well as to those involving personal injury.

Ga.Code Ann. Sec. 9-3-30, the statute of limitations applicable when the case was before the district court, provides that the action must be brought within four years after the right of action accrues. In Corporation of Mercer Univ. v. National Gypsum Co., 832 F.2d 1233 (11th Cir.1987), which was argued before this case was argued, we certified to the Georgia Supreme Court the question of whether the discovery rule applies to property damage cases.1

The Georgia Supreme Court answered the certified question in the negative. See Corporation of Mercer University v. National Gypsum Co., 258 Ga. 365, 368 S.E.2d 732 (1988). The court held that the discovery rule in Georgia is confined to personal injury cases. Id., 368 S.E.2d at 733. The court concluded, therefore, that a cause of action under Ga.Code Ann. Sec. 9-3-30 must be brought within four years of substantial completion of the damaged building or property. See id., 368 S.E.2d at 733.

While the case was pending before the Georgia Supreme Court, however, the Georgia legislature enacted a new statute governing actions against asbestos manufacturers and suppliers involving property damage. The new statute, Ga.Code Ann. Sec. 9-3-30.1, which was signed by the governor and became law on April 14, 1988, provides:

(a) Notwithstanding the provisions of Code Section 9-3-30 or any other law, every action against a manufacturer or supplier of asbestos or material containing asbestos brought by or on behalf of any person or entity, public or private; or brought by or on behalf of this state or any agency, department, political subdivision, authority, board, district, or commission of the state; or brought by or on behalf of any municipality, county, or any state or local school board or local school district to recover for:

(1) Removal of asbestos or materials containing asbestos from any building owned or used by such entity;

(2) Other measures taken to correct or ameliorate any problem related to asbestos in such building;

(3) Reimbursement for such removal, correction, or amelioration related to asbestos in such building; or

(4) Any other claim for damage to real property allowed by law relating to asbestos in such building

which might otherwise be barred prior to July 1, 1990, as a result of expiration of the applicable period of limitation, is revived or extended. Any action thereon shall be commenced no later than July 1, 1990.

(b) The enactment of this Code section shall not be construed to imply that any action against a manufacturer or supplier of asbestos or material containing asbestos is now barred by an existing limitations period.

(c) Nothing in this Code section shall be construed to revive, extend, change, or otherwise affect the applicable period of limitation for persons or entities not set forth and provided for in subsection (a) of this Code section.

(d) Nothing contained in this Code section shall be construed to have any effect on actions for personal injury or any other claim except as specifically provided in this Code section.

This statute, if applied to cases like this one, would lift any statute of limitation bar. The Georgia Supreme Court, however, did not consider the effect of this statute on Mercer's claim.2

Appellants argue that the new statute does not apply "retroactively" to cases filed prior to April 14, 1988, the effective date of the new statute. Appellants maintain that the four year statute of limitations of Ga.Code Ann. Sec. 9-3-30 applies (sans discovery rule) to all cases, like this one, filed prior to April 14, 1988.

Appellants, citing Hart v. Owens-Illinois, Inc., 250 Ga. 397, 297 S.E.2d 462 (1982), argue that because the language of Ga.Code Ann. Sec. 9-3-30.1 does not "imperatively" require retroactive application, the statute should not apply to pending cases.3 Appellants specifically point to the language that any action under the new statute "shall be commenced" before July 1, 1990 as connoting application only to lawsuits commenced after the enactment of the new statute.4

We believe that it is appropriate for the Georgia Supreme Court to resolve this issue. As we noted in our previous opinion, these cases involve considerable amounts of money, and this court has a strong interest in faithfully applying Georgia law with scrupulous accuracy. Accordingly, we certify the issue of the new statute's interpretation and applicability to pending cases.5

IV. Question to be Certified to the Georgia Supreme Court

Whether Ga.Code Ann. Sec. 9-3-30.1 applies to cases pending at the time of the statute's enactment so as to prevent these claims from otherwise being barred by an applicable period of limitation?

The entire record in the case, together with the briefs of the parties, is transmitted herewith.

QUESTION CERTIFIED.