Burgard v. Benedictine Living Communities, 22994.

• Decision Date: 28 April 2004
• Docket Number: No. 22994.,22994.
• Citation: 2004 SD 58,680 N.W.2d 296
• Court: South Dakota Supreme Court
• Parties: Thomas BURGARD, as Personal Representative for the Estate of Anton Burgard, Deceased, Plaintiff and Appellant, v. BENEDICTINE LIVING COMMUNITIES, d/b/a Aberdeen Living Center, Defendant and Appellee.

680 N.W.2d 296

2004 SD 58

Thomas BURGARD, as Personal Representative for the Estate of Anton Burgard, Deceased, Plaintiff and Appellant, v. BENEDICTINE LIVING COMMUNITIES, d/b/a Aberdeen Living Center, Defendant and Appellee.

No. 22994.

Supreme Court of South Dakota.

Considered on Briefs March 22, 2004.

Decided April 28, 2004.

Mark A. Anderson of McNeary & Anderson Aberdeen, South Dakota, Attorneys for plaintiff and appellant.

Reed Rasmussen of Siegel, Barnett and Schutz, Aberdeen, South Dakota, Attorneys for defendant and appellee.

SABERS, Justice.

[¶ 1.] Thomas Burgard, the personal representative for the estate of Anton Burgard, brought suit against Aberdeen Living Center (ALC) for wrongful death and medical malpractice. ALC filed a motion for summary judgment and the trial court granted the motion. Burgard appeals, arguing that our decision in Peterson v. Burns, 2001 SD 126, 635 N.W.2d 556, should be applied prospectively only. The trial court held that the decision applied retroactively. We affirm.

FACTS

[¶ 2.] Anton Burgard had hip surgery on May 14, 1999. Three days after the surgery, he fell in his hospital room, and staff placed him in restraints for his own safety. On May 19, he was transferred to ALC for rehabilitation. Although ALC was apparently aware that Burgard needed to be restrained for his own safety, he was not, and on three occasions he fell while at the nursing home. As a result of the falls, he suffered a broken shoulder and a dislocated hip. After his falls, his health began to deteriorate and he developed an infection and pneumonia. He died on June 15, 1999.

[¶ 3.] Burgard's personal representative brought a complaint against ALC on June 14, 2002 alleging medical malpractice and wrongful death. The trial court found that this Court's holding in Peterson applied to the case and dismissed the action on ALC's motion for summary judgment. The estate appeals. Because prospective application of Peterson would not save the estate's claim and because the Court has already applied Peterson retroactively, we affirm.

STANDARD OF REVIEW

[¶ 4.] The question before the Court is whether Peterson should have prospective application. We have held that prospective application of a decision "is entirely a question of law and therefore, freely reviewable." Larsen v. Sioux Falls Sch. Dist. # 49-5, 509 N.W.2d 703, 705 (S.D.1993) (additional citations and quotations omitted).

[¶ 5.] Whether the decision in Peterson v. Burns that the two year medical malpractice statute of limitations governs wrongful death claims arising from medical malpractice should be applied prospectively.

[¶ 6.] The relevant timeline in this case is:

June 15, 1999: Anton Burgard passes away.

October 24, 2001: This Court publishes Peterson.

June 14, 2002: Estate files suit for medical malpractice and wrongful death.

[¶ 7.] The trial court held that the statute of limitations for the medical malpractice claims expired before the estate filed suit. The estate does not appeal that determination. It raises the question whether the wrongful death claim survives in spite of this Court's ruling in Peterson.

[¶ 8.] The wrongful death statute of limitation provides:

Every action for wrongful death shall be commenced within three years after the death of such deceased person.

SDCL 21-5-3. According to this statute, the wrongful death claim was brought one day before the expiration of the statute of limitations. However, in Peterson, we held that a wrongful death claim premised upon medical malpractice was governed by the medical malpractice limitation of two years. Peterson, 2001 SD 126 at ¶46, 635 N.W.2d at 572; SDCL 15-2-14.1. In the instant case, the trial court held that the rule of Peterson was applicable and the estate appeals, arguing that Peterson should have prospective application only.¹ [¶ 9.] Traditionally, the general rule in civil cases was that unless a court declared that its decision was to have only prospective effect, the decision would have both prospective and retroactive effect. Baatz v. Arrow Bar, 426 N.W.2d 298, 300 (S.D.1988). This general rule arises from the theory that the judiciary does not make law, but rather interprets it. Therefore, unless the Court announces that a decision is to have prospective effect only, it is fairly assumed that the decision will apply prospectively and retroactively. Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 98, 113 S.Ct. 2510, 2518, 125 L.Ed.2d 74, 87 (1993) (additional citation omitted). However, the Court "has inherent power to apply its decisions prospectively or retrospectively." State v. One 1966 Pontiac, 270 N.W.2d 362, 365 (S.D. 1978) (additional citations omitted). We have consistently affirmed the principle that "the Constitution neither prohibits nor requires retrospective effect." Vogt v. Billion, 405 N.W.2d 635, 636 (S.D.1987) (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1737, 14 L.Ed.2d 601, 608 (1965)) (additional citation omitted). "Once the need is established for applying a principle prospectively, there is a large measure of judicial discretion involved in deciding the time from which the new principle is to be deemed controlling." Vogt, 405 N.W.2d at 637.

[¶ 10.] We have adopted the factors promulgated by the United States Supreme Court for determining whether a decision will have only prospective application. Those factors are:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the injustice or hardship" by a holding of nonretroactivity.

Brown v. John Morrell & Co., 511 N.W.2d 277, 278 (S.D.1994) (quoting Fisher v. Sears, Roebuck & Co., 88 S.D. 1, 4-5, 214 N.W.2d 85, 87 (quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971)) (emphasis supplied)). It is important to note that the factors the Court has adopted are premised on the presumption that normally, our decisions will be given retroactive effect. We employ the factors to determine whether equity requires a departure from the norm. Baatz, 426 N.W.2d at 300 (quoting AmJur2d § 233 (1965) ("the general rule in civil cases seems to be that unless the overruling decision declares that it shall have only prospective effect, [] the judicial overruling of a precedent has both prospective and retroactive effect.")). [¶ 11.] We need not examine the factors promulgated in Chevron, for even if the Court were to hold that Peterson announced a new rule of law and should have prospective effect only, it would not save the estates claim. In City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975), we noted that a decision applied prospectively "does not apply to cases handled by the ... courts previous to the date of this decision." City of Aberdeen,89 S.D. at 417,233 N.W.2d at 334. In other words, "prospective application means the overruling decision is not applied to cases commenced before the decision was announced. Therefore, the overruling decision is applied to cases commenced after the decision is announced." Baatz, 426 N.W.2d at 301-302

(emphasis supplied). "Although it can be argued that prospective application should mean the decision is applied only to transactions or events occurring after the announcement of the decision, this is not what our prior case law indicates for obvious and sound reason." Id. at 302. In the instant case, even if we held that Peterson has prospective effect only, it would not save the estate's claim because this case was commenced in June 2002, eight months after the decision was announced in October 2001.

[¶ 12.] Furthermore, the Court has already given Peterson retroactive effect. In Peterson, we reversed the circuit court's determination that the relevant statute of limitation was three years and the determination that Johnson and Eisland were proper parties to the suit. Peterson, 2001 SD 126 at ¶ 46, 635 N.W.2d at 572. The case was remanded for proceedings consistent with those determinations. The claims against Johnson and Eisland were no longer viable and had to be dismissed because they were not proper parties to the suit. Assuming that Peterson represented a change in the law, the Court chose to apply the holding retroactively to Johnson and Eisland even though at the time of the transaction the law arguably allowed for liability.

[¶ 13.] In Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 113 S.Ct. 2510, 125 L.Ed.2d 74 (1993), the United States Supreme Court revised its analysis of this issue and held, the "Court's application of a rule of federal law to the parties before the Court requires every court to give retroactive effect to that decision." Harper, 509 U.S. at 90, 113 S.Ct. at 2513, 125 L.Ed.2d at 81. This Court is not bound to adopt this bright line rule of retroactivity for our decisions, and the parties have not requested that we do so. While we do not abandon our analysis of the equities in cases such as this, we accept the Court's reasoning that "the legal imperative `to apply a rule of federal law retroactively after the case announcing the rule has already done so' must `prevail over any claim based on Chevron Oil analysis.' "Id. This determination arose from the Court's recognition of the potential inequity of application of "selective prospectivity." The Court previously defined...