Shover v. Cordis Corp.

574 N.E.2d 457, 61 Ohio St. 3d 213, 1991 Ohio LEXIS 1923

• Court: Ohio Supreme Court
• Decided: July 31, 1991
• Docket: No. 90-332
• Status: Published

Opinions

Holmes, J.

The issue presented in this appeal is whether fraud may toll R.C. 2125.02(D), Ohio’s statute setting forth the time within which to commence wrongful death actions. For the reasons which follow, we answer this query in the negative and affirm the judgment of the court of appeals.

I

A statute of limitations “bars [a] right of action unless it is filed within [a] specified period of time after [an] injury occurs.” (Emphasis added.) Black’s Law Dictionary (6 Ed.1990) 927, citing Hanson v. Williams County (N.D.1986), 389 N.W.2d 319, 321. At R.C. 2125.01, the General Assembly has created an action for wrongful death. Pursuant to this section, an action for wrongful death occurs “[w]hen the death of a person is caused * * *.” Death, therefore, is the event which triggers the cause of action.

Further, R.C. 2125.02(D) provides that “[a]n action for wrongful death shall be commenced within two years after the decedent’s death.” The effect of this provision is to bar wrongful death actions filed two years after the event of death, not two years from the date the plaintiff realized he was injured. Accordingly, we conclude that the legislature intended that wrongful death actions be brought within two years regardless of the date of discovery of the cause of the death. R.C. 2125.02(D).

II

At common law, there is no action for wrongful death. Keaton v. Ribbeck (1979), 58 Ohio St.2d 443, 12 O.O.3d 375, 391 N.E.2d 307; Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 8 O.O.3d 11, 374 N.E.2d 411; Klema v. St. Elizabeth’s Hospital (1960), 170 Ohio St. 519, 11 O.O.2d 326, 166 N.E.2d 765; Sabol v. Pekoe (1947), 148 Ohio St. 545, 549, 36 O.O. 182, 183, 76 N.E.2d 84, 87. Today, however, an action for wrongful death is a statutorily created right. Collins v. Yanity¹ (1968), 14 Ohio St.2d 202, 207, 43 O.O.2d 301, 304, 237 N.E.2d 611, 614. The wrongful death statute “is an innovation to the principles of the common law and affords the only civil remedy to compensate others for death resulting from injuries.” Karr v. Sixt (1946), 146 Ohio St. 527, 32 O.O. 14, 67 N.E.2d 331, paragraph two of the syllabus. As such, an action for wrongful death must be exercised only under the specific conditions imposed by the statute. Rubeck v. Huffman, supra.

In Ohio, a plaintiff may bring a wrongful death claim, “ * * * when the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *.” R.C. 2125.01.

The time period within which a plaintiff may bring a wrongful death claim, however, is not unlimited. Pursuant to R.C. 2125.02(D), “[a]n action for wrongful death shall be commenced within two years after the decedent’s death.” (Emphasis added.) Compliance with the period of limitation for wrongful death claims is a condition precedent to the right to maintain the action. Sabol v. Pekoc, supra; Bazdar v. Koppers Co., Inc. (N.D.Ohio 1981), 524 F.Supp. 1194; Johnson v. Koppers Co. (N.D.Ohio 1981), 524 F.Supp. 1182. Moreover, in construing the language in R.C. 2125.02 we have observed that it “ * * * expresses an integral element of the right of the action itself and if an action is not brought within two years from the death of the decedent it must fail, not because a statute of limitations provides the time within which it must be brought but because the time limit is the very essence of the action.” Sabol v. Pekoc, supra, 148 Ohio St. at 552, 36 O.O. at 185, 76 N.E.2d at 88.

In this case, appellant’s decedent died on June 28, 1984. Appellant’s wrongful death claim, however, was not filed until January 23, 1989. The cause of action accrued on the date of death. Because appellant failed to file his claim within the prescribed statutory time frame, he has not pled all the necessary elements of the action and, therefore, he has no wrongful death claim.

Ill

Appellant contends, however, that the appellee’s fraud should toll R.C. 2125.02(D) and expand the time within which he can bring his claim. This court has historically rejected this argument, and we are unpersuaded to change our position today.

A number of prior cases decided within this state have held that “[a] fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations.” Johnson v. Koppers Co., supra; Shrewsbury v. Smith (C.A.6, 1975), 511 F.2d 1058; Sabol v. Pekoc, supra; Fee’s Admr. v. Fee (1841), 10 Ohio 470, syllabus. It has also been held that fraud may toll a statute of limitations only where fraud is the gist of the action. Baldridge v. Toombs (1962), 118 Ohio App. 229, 25 O.O.2d 70, 189 N.E.2d 635.

In the case sub judice, appellant brought a wrongful death claim against appellee. A wrongful death claim does not have its inception in fraud, but rather is based upon “the death of a person.” R.C. 2125.01. Accordingly, we conclude that fraud will not enlarge the statutory period within which appellant is required to file his wrongful death claim.

Such result, however, does not preclude the appellant from bringing a cause of action in fraud,² separate and independent from wrongful death. This fraud claim may be brought pursuant to R.C. 2305.21, which states, “[i]n addition to the causes of action which survive at common law, causes of action * * * for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.” Although a cause of action for the tort of fraud must be brought within four years from the time the cause accrued, the cause does not accrue until the fraud and the wrongdoer are actually discovered. (R.C. 2305.09.) Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph three of the syllabus. In addition, it has long been the rule in our state that “[a] person injured by fraud is entitled to such damages as will fairly compensate him for the wrong suffered; that is, the damages sustained by reason of the fraud or deceit, and which have naturally and proximately resulted therefrom.” Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 166, 4 OBR 264, 267, 446 N.E.2d 1122, 1126. See Molnar v. Beriswell (1930), 122 Ohio St. 348, 8 Ohio Law Abs. 306, 171 N.E. 593, paragraph one of the syllabus; Bartges v. O’Neil (1861), 13 Ohio St. 72, 77-78; Bartholomew v. Bentley (1846), 15 Ohio 659.

In this case, appellant claims that he first discovered the appellee’s fraudulent concealment of the pacemaker’s defects on September 1, 1988. Therefore, pursuant to R.C. 2305.09, appellant has until September 1, 1992 to file a cause of action for the tort of fraud against appellee.

IV

Appellant also contends that the discovery rule for bodily injury actions, as articulated by this court in O'Stricker v. Jim Walter Corp. (1983), 4 Ohio , 4 OBR 335, 447 N.E.2d 727,³ should be extended and. applied to wrongful death claims. We disagree with his contention.

The discovery rule has traditionally been limited by case law to malpractice actions where the plaintiff in such actions may remain unaware of his or her injuries until some time in the future. O’Stricker v. Jim Walter Corp., supra; Melnyk v. Cleveland Clinic (1972), 32 Ohio St.2d 198, 61 O.O.2d 430, 290 N.E.2d 916. Such is not the case, however, in a claim for wrongful death. When death occurs following an incident, the basic element of a wrongful death action, i.e., the death, is a known factor and the survivors may proceed to determine the cause of death.

Moreover, the right to relief in wrongful death is based upon a special statutory action created by the General Assembly at R.C. 2125.01 et seq. Under Ohio law, it is a cardinal rule that a court must first look to the language of the statute itself to determine the legislative intent. If that inquiry reveals that the statute conveys a meaning which is clear, unequivocal and definite, at that point the interpretative effort is at an end, and the statute must be applied accordingly. Provident Bank v. Wood (1973), 36 Ohio St.2d 101, 105-106, 65 O.O.2d 296, 298, 304 N.E.2d 378, 381. Courts are directed to give effect to the words of a statute and not to modify an unambiguous statute by deleting words used or inserting words not used. Bernardini v. Bd. of Edn. (1979), 58 Ohio St.2d 1, 4, 12 O.O.3d 1, 3, 387 N.E.2d 1222, 1224; see Gulf Oil Corp. v. Kosydar (1975), 44 Ohio St.2d 208, 215-216, 73 O.O.2d 507, 511, 339 N.E.2d 820, 824.

R.C. 2125.02(D) states that “[a]n action for wrongful death shall be commenced within two years after the decedent’s death.” Since the wording of this provision is clear and unambiguous, there is no room for judicial interpretation. See State, ex rel. Stanton, v. Zangerle (1927), 117 Ohio St. 436, 159 N.E. 823; Swetland v. Miles (1920), 101 Ohio St. 501, 130 N.E. 22; McCormick v. Alexander (1825), 2 Ohio 65. Accordingly, we cannot interfere with legislative intent by expanding the two-year period as codified by the General Assembly at R.C. 2125.02(D).

In addition, “ ‘[i]t is well settled * * * that the legislature has the power to increase the period of time necessary to constitute a limitation, and also to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations.’ ” O’Stricker v. Jim Walter Corp., supra, at 86-87, 4 OBR at 337, 447 N.E.2d at 729. Accordingly, we conclude that had the General Assembly intended to apply the discovery rule to toll R.C. 2125.02(D), it could have achieved this objective legislatively. Since the General Assembly has not seen fit to legislatively engraft the discovery rule onto R.C. 2125.02(D), we cannot accept appellant’s invitation to judicially broaden the discovery rule. Accordingly, we reject appellant’s claim.

V

As his final proposition of law, appellant argues that R.C. 2125.02(D), as applied to bar his wrongful death claim, is unconstitutional. According to the appellant, R.C. 2125.02(D), as it purports to limit or prevent the use of the discovery rule in wrongful death cases, violates the “Right to Remedy Provision,” Section 16, Article I, Ohio Constitution, and the Equal Protection Clause of the Ohio Constitution, Section 2, Article I.

In addressing this claim, we begin our inquiry with the basic legal principle that Acts of the General Assembly are presumed valid under Ohio law, and in cases of doubt should be held constitutional. See State v. Dorso (1983), 4 Ohio St.3d 60, 61, 4 OBR 150, 151, 446 N.E.2d 449, 450; Peebles v. Clement (1980), 63 Ohio St.2d 314, 321, 17 O.O.3d 203, 207, 408 N.E.2d 689, 693; State, ex rel. Taft, v. Campanella (1977), 50 Ohio St.2d 242, 246, 4 O.O.3d 423, 425, 364 N.E.2d 21, 24.

Appellant maintains that R.C. 2125.02(D) violates Section 16, Article I, Ohio Constitution, which states:

“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law and shall have justice administered without denial or delay.” Section 16 of Article I has been described as “equivalent to the due process clause [of the Fourteenth Amendment].” Saultz v. Funk (1979), 64 Ohio App.2d 29, 39, 18 O.O.3d 19, 25, 410 N.E.2d 1275, 1281; Barnhardt v. Linzell (1957), 104 Ohio App. 243, 4 O.O.2d 391, 148 N.E.2d 242.

The effect of R.C. 2125.02(D) is to prevent what might otherwise be a cause of action from ever arising. Thus, damages which are realized more than two years after the date of death form no basis for recovery. The harm that has been done is damnum absque injuria — a wrong for which the law affords no redress.

In this case, appellant failed to file his wrongful death claim within the two-year period as required by R.C. 2125.02(D). Since appellant had no vested right in his wrongful death claim, he has nothing upon which to base his denial of a remedy challenge. Johnson v. Koppers Co., supra.

Appellant also challenges the constitutionality of R.C. 2125.02(D) under the Equal Protection Clause of the Ohio Constitution for the first time on appeal to this court. It is axiomatic, however, that issues not presented for consideration below will not be considered by this court on appeal. Hoffman v. Staley (1915), 92 Ohio St. 505, 112 N.E. 1084; Clarington v. Althar (1930), 122 Ohio St. 608, 174 N.E. 251; State, ex rel. Babcock, v. Perkins (1956), 165 Ohio St. 185, 59 O.O. 258, 134 N.E.2d 839, paragraph three of the syllabus; Hamlin v. McAlpin Co. (1964), 175 Ohio St. 517, 26 O.O.2d 206, 196 N.E.2d 781, paragraph one of the syllabus; State, ex rel. Royal, v. Columbus (1965), 3 Ohio St.2d 154, 155, 32 O.O.2d 147, 148, 209 N.E.2d 405, 407; State v. Phillips (1971), 27 Ohio St.2d 294, 302, 56 O.O.2d 174, 178, 272 N.E.2d 347, 352; State v. Williams (1977), 51 Ohio St.2d 112, 5 O.O.3d 98, 364 N.E.2d 1364, paragraph two of the syllabus; State v. Barker (1978), 53 Ohio St.2d 135, 147-148, 7 O.O.3d 213, 220, 372 N.E.2d 1324, 1333; State v. Comely (1978), 56 Ohio St.2d 1, 4, 10 O.O.3d 1, 2, 381 N.E.2d 186, 189; Hospitality Motor Inns, Inc. v. Gillespie (1981), 66 Ohio St.2d 206, 208, 20 O.O.3d 209, 210, 421 N.E.2d 134, 136, at fn. 2; Cascioli v. Central Mut. Ins. Co. (1983), 4 Ohio St.3d 179, 180, 4 OBR 457, 458, 448 N.E.2d 126, 127, at fn. 2; Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194, 17 OBR 430, 431, 478 N.E.2d 998, 999; State v. Byrd (1987), 32 Ohio St.3d 79, 87, 512 N.E.2d 611, 620. As a result, appellant has waived his equal protection claim.

Because we conclude that appellant’s arguments have no merit, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Wright and H. Brown, JJ., concur. Sweeney, Douglas and Resnick, JJ., dissent.

1 . In Collins v. Yanity (1968), 14 Ohio St.2d 202, 207, 43 O.O.2d 301, 304, 237 N.E.2d 611, 614, we stated that:

“ * * * An action for wrongful death is brought pursuant to * * * Sections 2125.01 and 2125.02, Revised Code, which create the right of action, define it and specify the time within which such action must be brought. Without those statutes, there would be no cause of action for wrongful death in Ohio.”

2 . “ * * * The elements of fraud are: (a) a representation or, where there is a duty to disclose, concealment of a fact, (b) which is material to the transaction at hand, (c) made falsely, with knowledge of its falsity, or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, (d) with the intent of misleading another into relying upon it, (e) justifiable reliance upon the representation or concealment, and (f) a resulting injury proximately caused by the reliance. * * * ” Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph two of the syllabus; Cohen v. Lamko, Inc. (1984), 10 Ohio St.3d 167, 10 OBR 500, 462 N.E.2d 407.

3 . In O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727, this court held in paragraph two of the syllabus that:

“When an injury does not manifest itself immediately, the cause of action does not arise until the plaintiff knows or, by the exercise of reasonable diligence should have known, that he had been injured by the conduct of defendant, for purposes of the statute of limitations contained in R.C. 2305.10.”