Christ v. Exxon Mobil Corp.

Decision Date23 June 2015
Docket NumberNo. 2012AP1493.,2012AP1493.
Citation866 N.W.2d 602,362 Wis.2d 668
PartiesDonald CHRIST, individually and as Special Administrator of the Estate of Gail P. Christ, deceased, Jacqueline Radosevich, individually and as Special Administrator of the Estate of Gary Radosevich, deceased, Mary Jane Beaulieu, individually and as Special Administrator of the Estate of William Beaulieu, deceased, Paul Clark, individually and as Special Administrator of the Estate of Sharon A. Clark, deceased, Betty Grosvold, individually and as Special Administrator of the Estate of Victor M. Grosvold, deceased, Dianne Pederson, individually and as Special Administrator of the Estate of Mae H. Heath, deceased, Carrie Duss, individually and as Special Administrator of the Estate of Mary Henneman, deceased and Arlene Christ, Plaintiffs–Appellants–Cross–Respondents, Deborah Sherwood, individually and as Special Administrator of the Estate of Gerald F. Conley, deceased, Randy S. Hermundson, individually, Darlene Insteness, individually and as Special Administrator of the Estate of Robert A. Insteness, deceased, Joyce Jensen, individually, Jean M. Leskinen, individually, Paul T. Manny, Anita Manny, Douglas Winrich, individually and as Special Administrator of the Estate of Barbara Winrich, deceased, Barbara Nelson, individually and as Special Administrator of the Estate of Terry Nelson, deceased, Faye Reiter, individually, Donald Schindler, individually and Jean Ruf, individually and as Special Administrator of the Estate of Richard R. Ruf, deceased, Plaintiffs, v. EXXON MOBIL CORPORATION, Sunoco, Inc., Texaco Downstream Properties, Inc., Four Star Oil and Gas Company, BP Products North America, Inc. and Ashland Chemical Company Division of Ashland, Inc., Defendants–Respondents–Cross–Appellants–Petitioners. Shell Chemical, L.P., Cornerstone Natural Gas Company and Shell Oil Company, Defendants.
CourtWisconsin Supreme Court

For the defendants-respondents-cross-appellants-petitioners, there were briefs by Dennis M. Sullivan, Michael A. Hughes, Larry Chilton, and Chilton Yambert Porter LLP, Madison, and oral argument by Dennis M. Sullivan.

For the plaintiffs-appellants-cross-respondents, there was a brief by Matthew A. Biegert, Michael J. Brose, and Doar, Drill & Skow, S.C., New Richmond; Michael R. Sieben and Sieben Polk, P.A., Hastings, MN; Richard Alexander and Alexander Law Group, LLP, San Jose, CA; and Mandy Hawes, San Jose, CA. Oral argument by Matthew A. Biegert.

Opinion

DAVID T. PROSSER, J.

¶ 1 This is a review of an unpublished opinion and order of the court of appeals,1 which summarily reversed a grant of summary judgment in favor of Exxon Mobil Corp. et al., by the Eau Claire County Circuit Court, Lisa K. Stark, Judge.

¶ 2 The case involves the viability of certain wrongful death and survival claims. It is part of a larger tort suit filed in 2006 by former employees and the estates and beneficiaries of former employees at an Eau Claire tire manufacturing plant. The tort suit alleged that the former employees' injuries and deaths resulted from their exposure to benzene in the workplace. This appeal relates to the summary judgment entered against eight plaintiffs on grounds that their claims were filed too late.

¶ 3 The defendants, Exxon Mobil Corp. et al.,2 contend that the claims of these plaintiffs were not filed before the expiration of the three-year statute of limitations set forth in Wis. Stat. § 893.54(2) (2005–06). They contend that, under Wisconsin law, the plaintiffs' claims could not have accrued later than the deaths of the decedents they represent because the discovery rule in wrongful death and survival claims does not extend to “third parties,” that is, parties other than the decedents. Thus, they argue, the statute of limitations began to run more than three years before any of the plaintiffs in this appeal filed their claims.

¶ 4 The plaintiffs counter that their claims did not accrue until they had reason to believe that the defendants were responsible for the injuries giving rise to their claims. They assert that Wisconsin's judicially created discovery rule applies to both survival claims and wrongful death claims in such a way that the claims may accrue later than a decedent's death if an appropriate third party's discovery of the claim is reasonable. They argue that there is no law that limits this application of the discovery rule.

¶ 5 We agree with the plaintiffs and hold that the discovery rule permits the accrual of both survival claims and wrongful death claims after the date of the decedent's death. In the absence of a legislatively created rule to the contrary, claims accrue when there is a “claim capable of present enforcement, a suable party against whom it may be enforced, and a party who has a present right to enforce it.” Emp'rs Ins. of Wausau v. Smith, 154 Wis.2d 199, 231, 453 N.W.2d 856 (1990) (quoting Barry v. Minahan, 127 Wis. 570, 573, 107 N.W. 488 (1906) ). These criteria are not met “until the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, not only the fact of injury but also that the injury was probably caused by the defendant's conduct or product.” Borello v. U.S. Oil Co., 130 Wis.2d 397, 411, 388 N.W.2d 140 (1986).

See also Carlson v. Pepin Cnty.,

167 Wis.2d 345, 352–53, 481 N.W.2d 498 (Ct.App.1992) (“Under the discovery rule, a cause of action accrues when the plaintiff discovered or, in the exercise of reasonable diligence, should have discovered his injury, its nature, its cause and the identity of the allegedly responsible defendant.”).

¶ 6 In the circumstances of this case, the applicable statute of limitations began to run when the survival claims and wrongful death claims were discovered, provided that the plaintiffs are able to show that they exercised reasonable diligence in investigating and discovering their claims.

¶ 7 Given the procedural posture of this case, the plaintiffs have not yet demonstrated that their claims accrued less than three years before they filed their complaint. Accordingly, we affirm the court of appeals and remand to the circuit court for a determination as to whether the plaintiffs have satisfied the statute of limitations under our accrual rule.

I. FACTUAL AND PROCEDURAL BACKGROUND

¶ 8 The relevant facts are undisputed. On July 13, 2006, multiple parties (the initial plaintiffs)3 filed suit against multiple defendants (the initial defendants) in the Eau Claire County Circuit Court. The complaint alleged that the initial plaintiffs were employed at an Eau Claire tire manufacturing facility operated by the Uniroyal Goodrich Tire Company, Inc.4 The complaint alleged that during the course of their employment, the initial plaintiffs were exposed to benzene and benzene-containing products. The complaint further alleged that as a result of their exposure to benzene and benzene-containing products, the initial plaintiffs were injured and, in some cases, died. The initial plaintiffs sought unspecified damages on the theories of negligence, strict liability, and failure to warn.

¶ 9 In due course, the initial defendants individually answered the complaint and denied liability for the alleged injuries. Two of the initial defendants—Hovland's, Inc. and Shell Canada, Ltd.—also filed cross-claims against certain co-defendants, leading those parties to file answers to the cross-claims as well.

¶ 10 On December 28, 2007, an amended complaint was filed. The amended complaint added nine parties as plaintiffs5 and three corporations as defendants. From 2008 through 2011, various filings not pertinent to this appeal were made in the case resulting in the dismissal of certain defendants.

¶ 11 On March 5, 2012, the remaining defendants moved for dismissal of the complaints of eight of the plaintiffs.6

This motion was based in part on Wis. Stat. § 893.54 (2005–06), which bars recovery for survival and wrongful death claims filed more than three years after accrual. The defendants contended that the eight plaintiffs' claims could have accrued no later than the time of the decedents' deaths, and because the decedents died more than three years prior to the filing of the complaints,7 the plaintiffs' claims were time-barred.

¶ 12 On March 27, the plaintiffs filed a brief opposing dismissal. They argued that the discovery rule delayed accrual of their claims until they knew or reasonably should have known of their injuries and of the defendants' role in those injuries. They contended that, at the very least, material issues of fact remained as to when their claims accrued.

¶ 13 The Eau Claire County Circuit Court held a motion hearing on April 30, 2012.8 After both sides presented their arguments, the court—expressing substantial difficulty with the state of the law—granted the motion. The court relied on Miller v. Luther, 170 Wis.2d 429, 489 N.W.2d 651 (Ct.App.1992), and Estate of Merrill ex rel. Mortenson v. Jerrick, 231 Wis.2d 546, 605 N.W.2d 645 (Ct.App.1999), to determine that the plaintiffs' claims had accrued at death, and were therefore barred by the statute of limitations.

¶ 14 The court of appeals summarily reversed the circuit court's grant of summary judgment. Christ v. Exxon Mobil Corp., No. 2012AP1493, unpublished order (Wis.Ct.App. Feb. 12, 2014). The court relied on its earlier decision in Beaver v. Exxon Mobil Corp., No. 2012AP542, unpublished slip op., 2013 WL 1908639 (Wis.Ct.App. May 9, 2013), which presented nearly identical facts with different plaintiffs. The court stated: “The discovery rule provides that the statute of limitations begins to run when the plaintiff discovers or should have discovered the injury and that the injury may have been caused by the defendant.” Christ, No. 2012AP1493, at 3 (citing Doe v. Archdiocese of Milwaukee, 211 Wis.2d 312, 335, 565 N.W.2d 94 (1997) ). The court did not make a determination as to whether the plaintiffs' claims were in fact timely, but remanded the case to the circuit court for...

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