Mertz v. 999 QUEBEC, INC.

2010 ND 51, 780 N.W.2d 446, 2010 N.D. LEXIS 52, 2010 WL 1052555

• Court: North Dakota Supreme Court
• Decided: March 24, 2010
• Docket: 20090031
• Status: Published

Opinions

CROTHERS, Justice.

[¶ 1] Shirley Mertz (“Mertz”) appealed from a district court order granting summary judgment dismissing her survival action filed on behalf of the estate of her husband, Allen Mertz, seeking to recover damages for alleged asbestos-related injuries from numerous asbestos manufacturers, distributers and sellers (“Defendants”). I would affirm, concluding the discovery rule does not toll the accrual of a survival action beyond the date of the decedent’s death.

I

[¶ 2] Allen Mertz worked as a pipefit-ter for more than thirty years, during which he was allegedly exposed to asbestos-containing products manufactured, sold, or distributed by the Defendants. Allen Mertz was diagnosed with lung cancer in 1995 and died of the disease in 1996. Mertz alleges that Allen Mertz’s doctors never informed him or any family member that his lung cancer was related to his exposure to asbestos. Rather, she alleges that she first learned of a possible connection with asbestos sometime after 2000, when a former co-worker of her husband suggested that she “check into” whether Allen Mertz’s lung cancer was related to his exposure to asbestos at work. In 2003, after reviewing the medical records, a doctor provided a written report indicating Allen Mertz’s exposure to asbestos “was a significant causative factor in his lung cancer.”

[¶ 3] Mertz brought this survival action on behalf of Allen Mertz’s estate in 2005, alleging Allen Mertz’s exposure to the Defendants’ asbestos-containing products caused his cancer and death. Several of the Defendants moved for summary judgment, contending the action was barred by the statute of limitations. The Defendants relied upon two notations made prior to 1996 in Allen Mertz’s medical records mentioning his exposure to asbestos and noting his daughter had requested a written statement from the treating doctor verifying that Allen Mertz had lung cancer and had been exposed to asbestos. The Defendants thus argued Allen Mertz had discovered his injury and its cause, and the cause of action had accrued, prior to his death in 1996, and the six-year statute of limitations under N.D.C.C. § 28-01-16(5) had expired before Mertz commenced this survival action in 2005.

[¶ 4] The district court concluded that, as a matter of law, Allen Mertz and his family knew by 1995 that his cancer was related to his exposure to asbestos and that they were by that time aware of facts about his asbestos-related disease to put them on notice a potential claim existed. The district court therefore concluded the six-year statute of limitations had expired before this action was commenced in 2005 and ordered summary judgment be entered dismissing Mertz’s action as to all Defendants.

II

[¶ 5] Mertz has attempted to appeal from the order granting summary judgment. An order granting summary judgment is not appealable. Farmers Union Oil Co. v. Smetana, 2009 ND 74, ¶ 7, 764 N.W.2d 665; Alerus Fin., N.A. v. Western State Bank, 2008 ND 104, ¶ 15, 750 N.W.2d 412. “An attempted appeal from [an] order granting summary judgment will, however, be treated as an appeal from a subsequently entered consistent judgment, if one exists.” Smetana, at ¶ 7; Wheeler v. Gardner, 2006 ND 24, ¶ 6, 708 N.W.2d 908. A consistent judgment dismissing Mertz’s claims against all Defendants was entered, and we treat the appeal as an appeal from the judgment.

Ill

[¶ 6] Mertz contends the district court erred when it concluded that, as a matter of law, Allen Mertz and his family knew by 1995 that his cancer was asbestos-related and that his cause of action accrued at that time. Mertz alleges that, viewing the evidence in the light most favorable to her as the party opposing summary judgment, no member of the Mertz family discovered that the cancer might be asbestos-related until sometime after 2000, when a former co-worker of Allen Mertz advised Mertz she should “check into” whether the cancer was related to Allen’s exposure to asbestos. Accordingly, Mertz contends the discovery rule applied, the survival cause of action did not accrue until after 2000 and the action brought in 2005 was not barred by the six-year statute of limitations.

[¶ 7] The Defendants contend the record supports the district court’s decision that the Mertz family had discovered Allen’s cancer was asbestos-related by 1995. Alternatively, the Defendants contend the discovery rule does not apply to extend accrual of a survival cause of action beyond the date of death of the decedent. We conclude this latter issue is dispositive of the appeal.

[¶ 8] The relevant survival statute is N.D.C.C. § 28-01-26.1:

“No action or claim for relief, except for breach of promise, alienation of affections, libel, and slander, abates by the death of a party or of a person who might have been a party had such death not occurred.”

In Hulne v. International Harvester Co., 322 N.W.2d 474, 477 (N.D.1982), this Court held the statute of limitations which would have governed the action had it been brought by the decedent also applies when the action is brought as a survival action by the personal representative after the decedent’s death. The parties agree, for purposes of this appeal, the six-year statute of limitations under N.D.C.C. § 28-01-16(5) applies to the survival action for Allen Mertz’s alleged injuries caused by exposure to asbestos-containing products.¹

[¶ 9] The crucial question in this case is when did the survival cause of action accrue. This Court has adopted the discovery rule, postponing accrual of a cause of action until the plaintiff is placed on notice that a potential claim exists, in cases where it would be difficult for the plaintiff to have learned of the defendant’s negligent act or omission giving rise to an injury. See Riemers v. Omdahl, 2004 ND 188, ¶ 6, 687 N.W.2d 445; Wells v. First Am. Bank West, 1999 ND 170, ¶ 10, 598 N.W.2d 834; see also Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 11, 599 ; Hebron Pub. Sch. Dist. v. United States Gypsum Co., 475 N.W.2d 120, 121-26 (N.D.1991); Biesterfeld v. Asbestos Corp. of Am., 467 N.W.2d 730, 736 (N.D.1991). We explained the application of the discovery rule in Wells:

“In Osland v. Osland, 442 N.W.2d 907, 908 (N.D.1989), this Court said that generally the statute of limitations begins to run from the commission of the wrongful act giving rise to the cause of action. We have also recognized, however, this rule is often harsh and unjust, which is why so many courts have adopted the discovery rule. ‘The discovery rule is meant to balance the need for prompt assertion of claims against the policy favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it.’ [Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 11, 599 N.W.2d 253].

“The discovery rule is an exception to the limitations and, if applicable, determines when the claim accrues for the purpose of computing limitations. The discovery rule postpones a claim’s accrual until the plaintiff knew, or with the exercise of reasonable diligence should have known, of the wrongful act and its resulting injury. Courts generally apply the discovery rule when it would have been difficult for the plaintiff to have learned of the negligent act or omission that gave rise to the legal injury. We have used an objective standard for the knowledge requirement under the discovery rule. The focus is upon whether the plaintiff is aware of facts that would place a reasonable person on notice a potential claim exists, without regard to the plaintiffs subjective beliefs.”

Wells, at ¶¶ 9-10 (citations omitted); see also Dunford v. Tryhus, 2009 ND 212, ¶ 9, 776 N.W.2d 539 (quoting Wells).

[¶ 10] This case presents a question of first impression for this Court: May the discovery rule be applied to toll the accrual of a survival action beyond the date of death of the decedent? The Defendants contend that the survival statute, N.D.C.C. § 28-01-26.1, only preserves those causes of action which had accrued to the decedent and were in existence at the time of death, so that a survival action accrues, at the latest, upon the death of the decedent. Mertz contends that the survival statute preserves to the survivor all rights which the decedent had, including rights in potential claims which might accrue upon later discovery, and therefore that the survival action in this case did not accrue until Mertz discovered the potential claim sometime after Allen Mertz’s death.²

[¶ 11] Courts in other jurisdictions addressing this issue have reached varying results, but the majority have concluded the discovery rule does not extend accrual of a survival cause of action beyond the date of the decedent’s death. See Redeker v. Johns-Manville Products Corp., 571 F.Supp. 1160, 1168 (W.D.Pa.1983); Johnson v. Koppers Co., Inc., 524 F.Supp. 1182, 1191-92 (N.D.Ohio 1981); McDaniel v. Johns-Manville Sales Corp., 511 F.Supp. 1241, 1243 (N.D.Ill.1981); Greene v. CSX Transp., Inc., 843 So.2d 157, 162-63 (Ala.2002); Santos v. George Washington Univ. Hosp., 980 A.2d 1070, 1073-76 (D.C.2009); Trimper v. Porter-Hayden, 305 Md. 31, 501 A.2d 446, 456-58 (1985), partially abrogated by statute as stated in Georgia-Pacific Corp. v. Benjamin, 394 Md. 59, 904 A.2d 511, 522 n. 5 (2006); Pobieglo v. Monsanto Co., 402 Mass. 112, 521 N.E.2d 728, 732-33 (1988); Pastierik v. Duquesne Light Co., 514 Pa. 517, 526 A.2d 323, 326-27 (1987); Anthony v. Koppers Co., 496 Pa. 119, 436 A.2d 181, 184-85 (1981). Contra Eisenmann v. Cantor Bros., Inc., 567 F.Supp. 1347, 1353-54 (N.D.Ill.1983); White v. Johns-Manville Corp., 103 Wash.2d 344, 693 P.2d 687, 695-97 (1985).

[¶ 12] The competing policy interests between the two approaches were aptly summarized in Trimper:

“Appellants’ argument, on the one hand, emphasizes the impact on the survivor plaintiff and rests on a rigorous, legal logic. A wrong had been done to the decedent who died without realizing that he possessed a cause of action which has become part of the decedent’s estate, so that, if and when a reasonably diligent personal representative knows or should know the asset exists, the personal representative should be able to assert the cause of action. Appellees’ argument, on the other hand, emphasizes the impact on defendants and rests on practicality. Appellees would combine the discovery rule and the policy of repose historically associated with statutes of limitations so that the person who immediately suffers the injury is protected throughout that person’s lifetime by the discovery rule but, on death, accrual under CJ § 5-101 would occur. The personal representative would then have three years from death within which to sue. Thereafter the cause of action would be barred whether or not it had been discovered.”

501 A.2d at 456.

[¶ 13] Courts rejecting application of the discovery rule beyond the date of death have stressed the logical and practical ramifications of the rule. Some courts have reasoned that, because “survival statutes do not create a new cause of action[,] they simply permit a personal representative to enforce a cause of action which ha[d] already accrued to the [decedent] before his death.” Pastierik, 526 A.2d at 326 (quoting Anthony, 436 A.2d at 185); see, e.g., McDaniel, 511 F.Supp. at 1243. After death, there can no longer be accrual of a cause of action under the survival statute. McDaniel, at 1243; Anthony, at 185.

[¶ 14] Courts have also emphasized that refusal to extend accrual beyond the death of the decedent is consistent with the underlying purposes of the statute of limitations to prevent stale claims and to provide a predictable and reasonable period of time after which claims will be barred. Thus, the court in Johnson noted:

“Further, to apply the discovery rule so as to toll the running of the statute of limitations beyond the death of injured individuals would be contrary to the purpose of the statute of limitations of preventing stale claims. Allowing the discovery rule to run past the date of death would allow survival actions to be brought at any time the decedent’s estate through medical advancement or otherwise discovered the cause of the decedent’s injuries that were suffered during his lifetime.”

524 F.Supp. at 1191 n. 5 (emphasis original). See also Trimper, 501 A.2d at 453 (quoting Johnson). Similarly, the court in Pobieglo reasoned:

“To delay accrual of a claim until the decedent’s personal representative might discover the cause of injury would create a situation where ‘there seldom would be a prescribed and predictable period of time after which a claim would be barred.’ Olsen v. Bell Tel. Laboratories, Inc., supra, 388 Mass. [171], 175, 445 N.E.2d 609 [612 (1983) ]. The application of a postdeath discovery rule to survival actions would produce ‘an unacceptable imbalance between affording plaintiffs a remedy and providing defendants the repose that is essential to stability in human affairs.’ Id.”

521 N.E.2d at 733.

[¶ 15] Courts rejecting post-death application of the discovery rule also have noted that the decedent’s death is itself a “community-disturbing event” which “is likely to prompt immediate focus by third parties upon the cause thereof.” Greene, 843 So.2d at 163 (quoting Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 145 (1st Cir.1979)). The court in Pastier-ik, addressing application of the discovery rule to a wrongful death action, noted:

“As stated in Anthony, supra, ‘death’ is a ‘definitely established event.’ Upon the death of an individual, survivors are put on clear notice thereof, and they have the opportunity to proceed with scientific examinations aimed at determining the exact cause of death so that a wrongful death action, if warranted, can be filed without additional delay. Such examinations, including autopsies, are designed to make a final determination as to the cause of death, and they are not restrained or limited in their scope, as would be examinations of living persons, by the need to avoid intrusive or destructive examination procedures. Because death is not an event that is indefinite as to the time of its occurrence, and because survivors are immediately put on notice that they may proceed to determine the cause of death, there is no basis to regard the cause of action for death as accruing at any time other than at death.”

526 A.2d at 326. The court concluded the same rationale applied in a survival action:

“In the context of survival actions, which, as heretofore discussed, merely permit a personal representative to pursue a cause of action that had already accrued to a victim prior to death, the Pocono [Int’l Raceway v. Pocono Produce, Inc., 503 Pa. 80, 468 A.2d 468 (1983) ] rule causes the statute of limitations to commence to run on the date when the victim ascertained, or in the exercise of due diligence should have ascertained, the fact of a cause of action. In no case, however, can that date be later than the date of death; hence, the statute runs, at the latest, from death. Because death is a definitely ascertainable event, and survivors are put on notice that, if an action is to be brought, the cause of action must be determined through the extensive means available at the time of death, there is no basis to extend application of the discovery rule to permit the filing of survival actions, or wrongful death actions, at times beyond the specified statutory period.”

Pastierik, at 327.

[¶ 16] In Greene, the court addressed application of the discovery rule to a survival personal injury claim under the Federal Employers’ Liability Act (“FELA”), and provided a concise summary of the reasons for rejecting application of the discovery rule beyond the death of the injured person:

“The consistency with which the Court was concerned can be achieved only by holding that a FELA personal-injury claim must accrue no later than the day the employee dies. Otherwise, a wrongful-death action would accrue, pursuant to Reading [Co. v. Koons, 271 U.S. 58, 46 S.Ct. 405, 70 L.Ed. 835 (1926) ], upon the death of the employee, but the personal-injury claim would accrue only when the personal representative, whenever such individual could be identified and qualified, discovered, or should have discovered, the occupational nature of the illness.

“Such would be the result if we extended the discovery rule to personal representatives, as the plaintiffs propose. Under such a rule, liability for the wrongful death of an employee would be extinguished three years after the death of the employee, while liability for the personal injury of that same employee could be held in abeyance indefinitely. This result would be clearly contrary to the policies and doctrine expressed in Reading, as well as to logic. Indeed, there is something logically amiss in the notion that a cause of action for personal injury can ‘accrue’ decades after the employee, who has died, can neither discover, nor suffer, anything further.

“Moreover, ‘[t]he community-disturbing event of death is likely to prompt immediate focus by third parties upon the cause thereof, thereby eliminating one possible delay involved in assembling a personal injury ease.’ Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142, 145 (1st Cir.1979). Survivors routinely seek medical and legal advice in the event of death.... It is one thing to toll the limitations period while the employee lives. However, as CSX points out, ‘extend[ing] the tolling of the statute of limitations until the death of the last surviving statutory beneficiary [under § 59]’ could lead to absurd results. Brief of CSX, at 23. ‘[I]f there was living an infant dependent next-of-kin at the time the [employee] died, and if the personal representative did not discover the alleged cause of death until the infant was a senior citizen, there could be an effective tolling of sixty or more years.’ Id. That this scenario is more than theoretical is illustrated by Johnson’s claims in this case, brought nearly three decades after her father’s death. We conclude that death is sufficiently significant to trigger the accrual, not only of a cause of action for wrongful death, but also of a cause of action for personal injuries.

“Consequently, until the United States Supreme Court revisits Reading, we are compelled to hold that the ... discovery rule applies only to discovery by the railroad employees themselves, and not to discovery by the personal representatives of deceased railroad employees, bringing actions, pursuant to 45 U.S.C. § 59, for personal injuries allegedly incurred in the course of their employment.”

843 So.2d at 162-63.

[¶ 17] In interpreting our survival statute, I find the logic and rationale of the foregoing authorities persuasive. I do not believe the legislature intended, in enacting N.D.C.C. § 28-01-26.1, to create a limitless time period after the decedent’s death for survivors to bring actions which were not discovered during the injured person’s lifetime. Accordingly, I would hold that the discovery rule does not toll the accrual of a survival cause of action brought under N.D.C.C. § 28-01-26.1 beyond the date of the decedent’s death and that the survival cause of action accrues, at the latest, upon death.

[¶ 18] Allen Mertz died in 1996, and the survival cause of action accrued, at the latest, at that time. I would hold the six-year statute of limitations expired by at least 2002, and this survival action commenced in 2005 is barred by the statute of limitations. I would therefore affirm summary judgment dismissing Mertz’s action.

[¶ 19] Finally, I am compelled to respond to assertions in Justice Maring’s separate opinion suggesting that I have confused the existence and the accrual of a cause of action, resulting in an unprincipled analysis of our law. North Dakota’s survival statute provides:

“No action or claim for relief, except for breach of promise, alienation of affections, libel, and slander, abates by the death of a party or of a person who might have been a party had such death not occurred.”

N.D.C.C. § 28-01-26.1. Stripped to its essentials for present purposes, the statute provides: “No action or claim for relief abates by death.” According to common application, the word “abate” means “to put an end to ... nullify.” Merriam-Webster’s Collegiate Dictionary 2 (11th ed. 2005). Thus, death does not end or nullify an action or claim for relief.

[¶ 20] The word “claim” means “the aggregate of operative facts giving rise to a right enforceable by a court.” Blade's Law Dictionary 264 (8th ed. 2004). Similarly, the phrase “cause of action” is “a group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain a remedy in court from another person.” Id. at 285. The plain meaning of these terms indicate the concepts involved in this statute deal with the existence or nonexistence of a justiciable claim.

[¶ 21] Stated differently, the survival statute is existential — it deals with the existence of the claim. Once the operative set of facts come into being, i.e., all elements of a claim exist, the death of the party does not destroy the claim. For example, a justiciable claim for the tort of negligence comes into being once all four elements (duty, breach, causation and damages) come into existence. See Barbie v. Minko Constr., Inc., 2009 ND 99, ¶ 8, 766 N.W.2d 458. Application of the survival statute means once a claim exists, that claim does not cease to exist because of the death of the party.

[¶ 22] The discovery rule, like the statute of limitations, is not existential but temporal in nature. The statute of limitations does not deal with whether a claim exists, i.e., whether all of the elements have come into being. Instead, a limitations period deals with the date by which an existing claim must be presented to the Court. Like the statute of limitations, the discovery rule uses the concept of tolling to deal with the time when an existing claim must be brought before the Court. The word “toll” is defined as: “To annul or take away ctoll a right of entry>, 2. (Of a time period, esp. a statutory one) to stop the running of; to abate ctoll the limitations period>”. Black’s Law Dictionary at 1525.

[¶ 23] Justice Maring argues that, under the discovery rule, a claim for relief does not accrue and hence the statute of limitations does not begin running until a plaintiff has notice a potential claim exists. It is true that some decisions of this Court, including one I authored, have described the discovery rule in terms of accrual, i.e., that the claim for relief does not accrue until the discovery. See, e.g., Dunford v. Tryhus, 2009 ND 212, ¶ 9, 776 N.W.2d 539; Snortland v. State, 2000 ND 162, ¶ 11, 615 N.W.2d 574; Wells v. First Am. Bank West, 1999 ND 170, ¶ 10, 598 N.W.2d 834; American Ins. Co. v. Midwest Motor Express, Inc., 554 N.W.2d 182, 187 (N.D. 1996); Hebron Pub. School v. United States Gypsum Co., 475 N.W.2d 120, 120-21 (N.D.1991). However, this Court also has described the discovery rule as tolling the running of the statute of limitations after the claim for relief accrued. See, e.g., Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 9, 653 N.W.2d 33 (“We have adopted a discovery rule, which tolls the statute of limitations in malpractice actions until the plaintiff knows, or with reasonable diligence should know, of the injury, its cause, and the defendant’s possible negligence.”); Larson v. Norkot Mfg., Inc., 2001 ND 103, ¶ 10, 627 N.W.2d 386; Jacobsen v. Haugen, 529 N.W.2d 882, 885 (N.D.1995); Osland v. Osland, 442 N.W.2d 907, 909 (N.D.1989). One decision of this Court cites cases describing the discovery rule both as “tolling” and as delaying “accrual” of the cause of action. Schanilec v. Grand Forks Clinic, Ltd., 1999 ND 165, ¶ 13, 599 N.W.2d 253.

[¶ 24] Given this Court’s conflicting descriptions, the assertion that my application of law lacks principle is unfounded. Also unfounded is a construction and application of our law that ignores and confuses the underlying concepts regarding the existence and the accrual of a cause of action. Rather, when the concepts embodied in the language of both the survival statute and the discovery rule are analyzed, I believe it is not this opinion but the other that confuses and improperly mixes the existential nature of the survival statute with the temporal nature of the discovery rule.

[¶ 25] STEVEN E. McCULLOUGH, D.J., concurs. [¶ 26] The Honorable GARY H. LEE, D.J., and STEVEN E. McCULLOUGH, D.J., sitting in place of KAPSNER, J., and SANDSTROM, J., disqualified.

1 . The Defendants contend there is an ongoing dispute whether the special three-year statute of limitations for injuries caused by exposure to asbestos included in the products liability statute of repose, N.D.C.C. § 28-01.3-08, is still viable after the statute of repose was declared unconstitutional in Dickie v. Farmers Union Oil Co., 2000 ND 111, 611 N.W.2d 168. In their arguments on appeal, however, the Defendants acknowledged it makes no difference whether the limitations period is three or six years, and expressly stated they "will assume for the sake of argument that the six-year limitations period applies.”

2 . Judge Lee would not reach this question based on his belief the issue was not raised in the district court. 1 respectfully disagree. The Defendants’ Joint Memorandum of Law In Support of their Motion to Dismiss on Statute of Limitations Grounds raised the issue in the court below. On appeal, the Defendants argue that the North Dakota survival action does not allow claims to accrue after the injured party’s death and that the discovery rule cannot be used to circumvent the survival statute. Therefore, the issue is ripe for review.