Alfred Moreno and Emma Moreno v. Sterling Drug, Inc., Camilla Sloan and James Sloan v. Sterling Drug, Inc.

899 F.2d 389, 1990 U.S. App. LEXIS 6733, 1990 WL 41955

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 30, 1990
• Docket: 87-5583
• Status: Published

Opinion

ON CERTIFICATION TO THE TEXAS SUPREME COURT

PER CURIAM:

On July 22, 1988 we certified two questions to the Texas Supreme Court:

1. Does the “discovery rule” apply to the Texas Statute of Limitations, TEX. CIV.PRAC. & REM.CODE § 16.003(b), in an action brought pursuant to the Texas Wrongful Death and Survival Statutes, TEX.CIV.PRAC. & REM.CODE § 71.001 et seq. and § 71.021, respectively?

2. If the discovery rule does not apply to the Texas Statute of Limitations in wrongful death and survival actions, does that statute of limitations, as applied to the plaintiffs herein, violate the open courts provision of the Constitution of the State of Texas, TEX. CONST, art. I, § 13?

By an opinion delivered March 28, 1990 and filed with this court on April 2, 1990, the Texas Supreme Court ruled that the discovery rule did not apply to the wrongful death statute of limitations and that the statute of limitations as thus applicable to the plaintiffs herein did not violate the open courts provision of the Constitution of the State of Texas. 787 S.W.2d 348.

It is now our duty to apply the law of Texas, as interpreted by Texas’ highest court, to the suits at bar. The district court a quo granted summary judgments in favor of Sterling Drug, Inc. and dismissed as time barred the claims of the plaintiff. Guided by the responses of the Texas Supreme Court to our certified questions, the judgments of the district court in these two cases are AFFIRMED.