Pobieglo v. Monsanto Co.

521 N.E.2d 728, 402 Mass. 112

• Court: Massachusetts Supreme Judicial Court
• Decided: April 11, 1988
• Status: Published

Opinions

Lynch, J.

This case comes before the court on certification from the United States District Court for the District of Massachusetts of two questions involving the applicability of the so-called discovery rule to claims for wrongful death and conscious pain and suffering arising from exposure to workplace chemicals. See S.J.C. Rule 1:03, as appearing in 382 Mass. 700 (1981).

The plaintiffs filed suit in the Superior Court in Hampden County on December 31, 1984, seeking to recover for the alleged wrongful death and conscious pain and suffering of John I. Pobieglo (decedent) and for their loss of consortium and loss of parental society. The claims relevant here, for wrongful death pursuant to G. L. c. 229, § 2 (1986 ed.), and for the decedent’s conscious pain and suffering, pursuant to G. L. c. 229, § 6 (1986 ed.), were founded in theories of negligence, breach of express and implied warranties, and reckless conduct. The plaintiffs alleged that the decedent was exposed to formaldehyde materials and products while employed by the defendant, Monsanto Company (Monsanto), at its chemical plant near Springfield, Massachusetts, and that this exposure caused the decedent to contract cancer of the nasopharynx resulting in his death on July 22,1979. The plaintiffs further alleged that (1) they remained in good faith ignoranee of the existence of grounds for a complaint against the defendants until more than three years after the date of the decedent’s death, and (2) they commenced this action within three years of the date they first discovered the existence of grounds for suit.

On or about January 30, 1985, Union Carbide Corporation on behalf of all the defendants removed the case to the United States District Court for the District of Massachusetts. On October 21, 1986, a judge in that court denied the defendants’ motion to dismiss or for summary judgment as to those claims challenged on statute of limitations grounds, adopting the report and recommendation of the magistrate, inter alla, that there was a reasonable likelihood that this court “would apply the statute of limitations ‘discovery rule’ to actions brought under the Massachusetts wrongful death and survival statutes.”⁴ At the same time, the judge denied the plaintiffs’ motion for certification. However, on May 18, 1987, subsequent to our decision in Hallett v. Wrentham, 398 Mass. 550 (1986), the judge ordered certified the following questions of law: 1. “May a discovery rule be applied in an action for wrongful death brought under Mass. Gen. Laws ch. 229, § 2 where, as a consequence of plaintiffs ’ good faith ignorance of the existence of grounds for a complaint, the action was commenced more than three years after the date of decedent’s death?” 2. “May a discovery rule be applied in an action for conscious pain and suffering brought under Mass. Gen. Laws ch. 229, § 6 where, as a consequence of plaintiffs’ good faith ignorance of the existence of grounds for a complaint, the action was commenced more than three years after the date of the decedent’s death, and more than two years after the executor of the decedent’s estate posted his bond?”

For the following reasons, we answer both certified questions in the negative.

1. In pertinent part, G. L. c. 229, § 2 (1986 ed.), provides: “An action to recover damages under this section shall be commenced within three years from the date of death or within such time thereafter as is provided by section four, four B, nine or ten of chapter two hundred and sixty.”

Relying principally on our opinions in Gaudette v. Webb, 362 Mass. 60 (1972), and Olsen v. Bell Tel. Laboratories, Inc., 388 Mass. 171 (1983), the plaintiffs urge us, in the interest of fairness, to extend application of the discovery rule to claims for wrongful death so as not to deprive the plaintiffs of a remedy before they knew, or reasonably should have known, that the decedent was harmed by the defendants’ conduct. In Gaudette, supra at 72, we held that the right to recover for wrongful death is of common law origin and that “statutes limiting the period for bringing actions for death are to be construed in the same manner as the limitations contained in G. L. c. 260, the general statute of limitations, and that they may be tolled by the various provisions of G. L. c. 260.” The plaintiffs contend that there is no principle of distinction between modification of the wrongful death statute of limitations through a discovery rule and application of the minor tolling provisions of G. L. c. 260 (1986 ed.). Similarly, the plaintiffs argue that where, in a case involving nonfatal injuries caused by workplace exposure to a toxic substance, we applied a discovery rule to claims arising under G. L. c. 260, § 2A, we should not deny recovery merely because the injury alleged to have been caused by the defendants here was so serious as to result in death. In a case involving death, too, the plaintiffs contend, the principle that “a plaintiff should be put on notice before his claim is barred,” Franklin v. Albert, 381 Mass. 611, 619 (1980), warrants application of a discovery rule to the wrongful death statute.

Central to the plaintiffs’ analysis of this evolving area of the law is the common law origin of the right to recover for wrongful death. Thus, the plaintiffs contend, where this is the view, a discovery rule has been uniformly applied despite explicit statutory language directing that the limitations period is to run “from death.” E.g., Eisenmann v. Cantor Bros., 567 F. Supp. 1347 (N.D. Ill. 1983); Hanebuth v. Bell Helicopter Int'l, 694 P.2d 143 (Alaska 1984); Myers v. McDonald, 635 P.2d 84 (Utah 1981).⁵

Conversely, the plaintiffs argue, courts of jurisdictions which do not recognize a nonstatutory right of action for wrongful death have reasoned that the lack of a nonstatutory right compelled strict construction of “from death” language, despite “harsh” results. See, e.g, Cadieux v. International Tel. & Tel. Corp., 593 F.2d 142 (1st Cir. 1979) (interpreting Rhode Island law); Knauer v. Johns-Manville Corp., 638 F. Supp. 1369 (D. Md. 1986); Stiles v. Union Carbide Corp., 520 F. Supp. 865 (S.D. Tex. 1981); Holzsager v. Warburton, 452 F. Supp. 1267 (D.N.J. 1978); Clark v. Prakalapakorn, 8 Kan. App. 2d 33 (1982).

Here it is of no significance that the wrongful death claim has common law origins, since we are first concerned with the meaning of G. L. c. 229, § 2, which limits the right to bring such claims. Only if the statute is ambiguous, or couched in terms that suggest that we do so, do we look beyond the express statutory language.

The Legislature has unambiguously stated that a claim for wrongful death must be brought within “three years from the date of death. ” Application of a rule which would delay accrual until discovery would be in clear contravention of the legislative directive that the period of limitation runs from the date of death. Furthermore, it must be understood that the discovery rule grew out of the need to determine when a cause of action “accrued.” When the Legislature limits the time within which suit can commence from the date of accrual, it leaves to the court the determination of the precise meaning of the term accrued.

At least as early as 1974, this court interpreted accrual language in c. 260 to incorporate the discovery rule. Hendrickson v. Sears, 365 Mass. 83 (1974). Since that time, the Legislature has amended the wrongful death statute of limitations at least twice and has retained the concept of limiting the time from the date of death thereby avoiding the accrual concept. See, e.g., St. 1981, c. 493, § 1; St. 1979, c. 164, § 1. Contrary to the plaintiffs ’ assertion that there is no principle of distinction between a discovery rule and application of the minor tolling provisions of G. L. c. 260, § 7, we see at least three important distinctions. First, the wrongful death statute under consideration in Gaudette was silent about tolling provisions. Second, the discovery rule is a judicial creation whereas tolling rules are themselves of legislative creation applicable to a wide range of causes of action. Third, and perhaps most significant, application of a minor tolling provision to the wrongful death statute does not disturb the legislatively determined date of accrual, the date of death. General Laws c. 260, § 7, merely provides that the running of the limitations period will be suspended “[i]f the person ... is a minor . . . when a right to bring an action first accrues ...” (emphasis added).

We reiterate that “Gaudette does not stand for the proposition that the requirements of the statute may be disregarded. ” Hallett v. Wrentham, 398 Mass. 550, 555 (1986).⁶ Although the right is of common law origin, “the death statute specifies the procedure and recovery.” Id. We cannot say that the result is illogical or absurd. See Grass v. Catamount Dev. Corp., 390 Mass. 551 (1983) (Legislature might reasonably choose to put wrongful death claimant on different footing from one claiming injury). Moreover, “arguments as to hardship . . . [are] appropriate respecting the enactment of legislation. They are not controlling in the interpretation of existing statutes.” Klein v. Catalano, 386 Mass. 701, 713 (1982), quoting Eastern Mass. St. Ry. v. Trustees of E. Mass. St. Ry., 254 Mass. 28, 33 (1925). We, therefore, answer that, where the Legislature has specifically provided that claims for wrongful death must be brought within three years from the date of death, it would be inappropriate for this court to vitiate that legislative determination and apply a discovery rule to claims brought pursuant to G. L. c. 229, § 2.

2. It is well settled that, “[although G. L. c. 229, § 6 . . . permits the joinder of separate counts for death and for conscious suffering in a single action, they are separate causes of action.” Gaudette v. Webb, 362 Mass. 60, 62 (1972). Claims for conscious pain and suffering survive by virtue of G. L. c. 228, § 1. Id. That claims for wrongful death and for conscious pain and suffering are premised upon different theories of recovery and are intended for separate categories of beneficiaries is recognized in the legislative directive of G. L. c. 229, § 6, that “damages . . . recovered for conscious suffering resulting from the same injury . . . shall be held and disposed of by the executors or administrators as assets of the estate of the deceased.” It follows, therefore, that the plaintiffs’ claims for the decedent’s conscious suffering are governed by G. L. c. 260, § 10.

In pertinent part, G. L. c. 260, § 10, provides: “If a person entitled to bring or liable to any action before mentioned dies before the expiration of the time hereinbefore limited, or within thirty days after the expiration of said time, and the cause of action by law survives, the action may be commenced by the executor or administrator at any time within the period within which the deceased might have brought the action or within two years after his giving bond for the discharge of his trust ..."

Reasoning that, had the decedent survived, a discovery rule would have applied to his claims for conscious pain and suffering, Olsen v. Bell Tel. Laboratories, Inc., supra, the plaintiffs argue that we should apply a discovery rule under G. L. c. 260, § 10, on the basis of the following principle: “A survivor takes the rights of the decedent — no more and no less. Therefore if the decedent would have had a cause of action during his lifetime, but for the invidious nature of his disease and his inability to link the injury to the wrongdoer, then that cause of action, when discovered, should survive his death.” Eisenmann v. Cantor Bros., 567 F. Supp. 1347, 1354 (N.D. Ill. 1983). Accord White v. Johns-Manville Corp., 103 Wash. 2d 344, 360 (1985). The defendants, on the other hand, argue that the survival statute merely permits a personal representative to initiate a cause of action which has already accmed to the deceased before death. See, e.g., McDaniel v. Johns-Manville Sales Corp., 511 F. Supp. 1241 (N.D. Ill. 1981); Trimperv. Porter-Hayden, 305 Md. 31 (1985); Pastierik v. Duquesne Light Co., 514 Pa. 517 (1987); Anthony v. Koppers Co., 496 Pa. 119 (1981).⁷

General Laws c. 260, § 10, was enacted long before this court’s recognition of the discovery rule. It may be, therefore, that the statutory language does not provide us with a sufficient answer to the question at hand. Nevertheless, that section refers only to claims which the decedent was “entitled to bring.” In Sliski v. Krol, 361 Mass. 313, 315 (1972), we interpreted this language to refer “to cases where the right of action accrued during a lifetime of decedent.” Again it may be argued that Sliski has limited significance here since it was decided before our recognition of the discovery rule. Policy considerations, however, lead us in the same direction. 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 at 175. 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. Furthermore, we are guided by our answer to the first question and the legislative decree that wrongful death actions must be brought within three years of death. There is no apparent reason to apply a common law rule that would permit claims for conscious suffering to be brought under the discovery rule by the decedent’s representatives long after death but to limit a death action to a much shorter time. We answer question 2 negatively and, therefore, that, under G. L. c. 260, § 10, we would not apply a discovery rule to a cause of action for conscious suffering commenced more than three years after the date of the decedent’s death, and more than two years after the executor of the decedent’s estate posted his bond.

We answer questions 1 and 2, “No.”

4 As to Monsanto, the plaintiffs’ claims for wrongful death and conscious pain and suffering are barred by the exclusivity provisions of the workers’ compensation act. G. L. c. 152 (1986 ed.).

5 The defendants argue that the Utah wrongful death statute is an accrual statute rather than a from death statute. The Supreme Court of Utah did not base its decision on this distinction. Instead, that court has held that “the [wrongful death] cause of action accrues at the time of death; hence, the two-year period begins to run at that time.” Matter of Estate of Garza, 725 P.2d 1328, 1329 (Utah 1986). See also Platz v. International Smelting Co., 61 Utah 342 (1922). The Utah court nevertheless applied a narrow exception to this rule based on the fact that the death itself was not discovered until after the statute had run. Myers v. McDonald, supra.

6 The plaintiffs contend that in Fidler v. E.M. Parker Co., 394 Mass. 534 (1985), we applied a discovery rule to a nonaccrual type statute which explicitly states when the limitations period begins to run, G. L. c. 106, § 2-318. The plaintiffs’ reliance on Fidler is misplaced. The issue in Fidler was whether the doctrine of collateral estoppel precluded the plaintiffs from relitigating the issue whether the statute of limitations had run. First, we held that “[t]he Federal court’s judgment applying the same measure of accrual [as in negligence claims] reflects a reasonable interpretation and application of Massachusetts law.” Id. at 545. Second, where G. L. c. 106, § 2-318, provides that the statute runs from “the date the injury and damage occurs,” we view this language as potentially ambiguous language requiring judicial interpretation, rather than specific, “nonaccrual” type language, as is contended by the plaintiffs.

7 But compare Trimper v. Porter-Hayden, supra at 42, in which that court stated: “But the injured party need not know that he has suffered a legally cognizable injury which has resulted in harm in order to have a complete cause of action.”