Titze v. Miller

337 N.W.2d 176, 1983 S.D. LEXIS 378

Opinions

FOSHEIM, Chief Justice.

This appeal is from an order dismissing plaintiff’s action for loss of consortium. We affirm.

We are asked to decide whether an action for loss of consortium is subject to our three-year statute of limitations for personal injury actions, SDCL 15-2-14(3).

Footnotes

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* Correctly claiming that South Dakota cases identify interspousal consortium as a personal right, Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669 (1959); Morey v. Keller, 77 S.D. 49, 85 N.W.2d 57 (1957); Swanson v. Ball, 67 S.D. 161, 290 N.W. 482 (1940); see also Bltsos v. Red Owl Stores, Inc., 350 F.Supp. 850 (D.S.D.1972), appellant argues that an action for loss of consortium is therefore not controlled by a statute of limitations which addresses “personal injury” alone. We disagree.

Our Code does not define “personal injury” for civil actions. Cf. SDCL 62-1-1 (Worker’s Compensation). While we have not previously addressed this question, the prevailing rule is that the term, when used in a statutory context, should be interpreted broadly to include injuries to personal rights. 51 Am.Jur.2d Limitation of Actions § 104 (1970); Annot. 108 A.L.R. 525 (1937). Illinois is the most notable exception. See, e.g., Cox v. Abbington, 24 Ill.App.3d 220, 320 N.E.2d 512 (1974); Mitchell v. White Motor Co., 58 Ill.2d 159, 317 N.E.2d 505 (1974). In Illinois, however, the statutory language is different. Their interpretation rests on a statute of limitations which addresses “injury to the person,” not “personal injury.” Ill.Ann.Stat. ch. 83, § 15 (Smith-Hurd 1966). Nevertheless, some courts have construed words identical with those in the Illinois statute to encompass injuries to personal rights. See, e.g., Rex v. Hunter, 26 N.J. 489, 140 A.2d 753 (1958).

An action for loss of consortium is derivative in nature. Bitsos v. Red Owl Stores, Inc., supra; Budahl v. Gordon & David Associates, 287 N.W.2d 489 (S.D.1980); Wilson v. Hasvold, 86 S.D. 286, 194 N.W.2d 251 (1972). When separate actions have their origin in the same operative facts it logically follows that they both be subject to the same statute of limitations, unless a contrary legislative intent clearly appears. SDCL 15-2-14(3) indicates no intention to restrict the term “personal injuries” to exclude personal rights.

The order is affirmed.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., dissents.

SDCL 15-2-14(3) provides, in relevant part:

“[T]he following civil actions ... can be commenced only within three years after the cause of action shall have accrued:

(3) An action for personal injury.”