Deem v. William Powell Co.

• Decision Date: 29 April 2022
• Docket Number: 20-35165
• Citation: 33 F.4th 554
• Parties: Sherri L. DEEM, individually and as Personal Representative for the estate of Thomas A. Deem, deceased, Plaintiff-Appellant, v. The WILLIAM POWELL COMPANY; John Crane, Inc.; Crosby Valve, LLC; Ingersoll-Rand Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

33 F.4th 554

Sherri L. DEEM, individually and as Personal Representative for the estate of Thomas A. Deem, deceased, Plaintiff-Appellant,

v.The WILLIAM POWELL COMPANY; John Crane, Inc.; Crosby Valve, LLC; Ingersoll-Rand Company, Defendants-Appellees.

No. 20-35165

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 2, 2021 Seattle, Washington

Filed April 29, 2022

Lisa W. Shirley (argued) and Ka'Leya Q. Hardin, Dean Omar Branham Shirley LLP, Dallas, Texas; Thomas J. Breen, Lucas Garrett, and Elizabeth McLafferty, Schroeter Goldmark & Bender, Seattle, Washington; for Plaintiff-Appellant.

Brian J. Schneider (argued), Hawkins Parnell & Young LLP, Chicago, Illinois; Ronald C. Gardner, Gardner Tabolsi & Mordehkov PLLC, Seattle, Washington; James D. Hicks, Foley & Mansfield PLLP, Seattle, Washington; for Defendants-Appellees.

Before: M. Margaret McKeown and Ronald M. Gould, Circuit Judges, and Jed S. Rakoff,^** District Judge.

OPINION

GOULD, Circuit Judge:

We must decide whether a wrongful death claim under admiralty jurisdiction first accrues on or after the date of the death of a seaman, or whether it accrues when the seaman first learned of his illness or injury. For the reasons that follow, we hold that a wrongful death claim in admiralty can only accrue on or after death of the seaman, and not before then.¹

From February 7, 1974, until February 22, 1981, Thomas Deem worked as an outside marine machinist at Puget Sound Naval Shipyard ("PSNS"). As a machinist, Thomas Deem was one of those responsible for "overhauling" the components of docked naval vessels. The "overhauling" process is a term used to describe the refurbishing and repair of vessels and their components. The overhauling process was split between inside and outside machinists. Inside machinists removed parts from the vessels and took them off the ships to be repaired in workshops. Outside machinists, like Thomas Deem, worked onboard the vessels repairing major machinery that could not readily be removed from the ships. Thomas Deem's work included removing and installing piping insulation, gaskets and other parts that may have contained asbestos in various compartments throughout the ships.

On February 20, 2015, Thomas Deem was diagnosed with mesothelioma. Thomas Deem died on July 3, 2015. His wife, Sherri Deem, filed the underlying suit in the United States District Court for the Western District of Washington on June 28, 2018, within three years of the date her husband died. She sought damages under a wrongful death theory from entities who manufactured, sold, and distributed asbestos-containing products to which Thomas Deem could have been exposed, naming Appellees as defendants. Appellees moved to dismiss Sherri Deem's complaint, arguing that the statute of limitations for her wrongful death claim rendered her claim time-barred under Maritime law.

The district court, in a single order addressing the defendants' motion to dismiss and on Sherri Deem's motion for summary judgment, employing a three-part analysis, agreed with the defendants-appellees. First, the district court concluded that the statute of limitations began to run for Sherri Deem's claims when Thomas Deem learned of his mesothelioma diagnosis in February of 2015. Second, the district court found that Sherri Deem's claim was governed by Maritime law's three-year statute of limitations codified at 46 U.S.C. § 30106. Third, the district court concluded that, because Sherri Deem filed the complaint on June 28, 2018, three years and four months after Thomas Deem's diagnosis, her claim was untimely under Maritime law. Sherri Deem appeals.

We review de novo a district court's dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Puri v. Khalsa , 844 F.3d 1152, 1157 (9th Cir. 2017) ; Curtis v. Irwin Indus., Inc. , 913 F.3d 1146, 1151 (9th Cir. 2019).

We review a grant of summary judgment de novo. Peters v. Burlington Northern R. Co. , 931 F.2d 534, 537 (9th Cir. 1990). We also review de novo the questions of when a cause of action accrues and whether or not a claim is barred by the statute of limitations. Oja v. U.S. Army Corps of Engineers , 440 F.3d 1122, 1127 (9th Cir. 2006).

Appellees argue that a wrongful death action under Maritime law begins to accrue under the "discovery rule." Appellees contend that the statute of limitations on a wrongful death action under Maritime law begins to run on the date the victim learns of their injury or diagnosis. Crisman v. Odeco, Inc. , 932 F.2d 413, 415 (5th Cir. 1991) (A cause of action accrues when plaintiff "ha[s] a reasonable opportunity to discover his injury, its cause, and the link between the two.").

Conversely, Appellant, Sherri Deem, argues that the district court erred by treating her claims as time barred because her wrongful death action began to accrue on the date of her husband's death, not on the date he discovered his injury.

The issue before us is whether the accrual of the statute of limitations for a wrongful death action under Maritime law began to run on or after the date of death of Thomas Deem or on the date of discovery of the injury or illness of the deceased that ultimately resulted in his death.

The rule in the Ninth Circuit is clear that "the date on which a claim accrues is determined by federal law." See Washington v. United States , 769 F.2d 1436, 1438 (9th Cir. 1985) ; see also Wallace v. Kato , 549 U.S. 384, 388, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) (§ 1983 action). While federal law controls the time of accrual of claims, id. , the law has not been crystal clear as to when a claim for wrongful death accrues. In this opinion for the reasons that follow, we clarify that a wrongful death claim cannot arise or accrue before death even if the cause of death is anticipated.

We review the pertinent precedents of the United States Supreme Court and the United States Courts of Appeals for the circuits that have addressed claim accrual in wrongful death cases. We start with the important premise that the Supreme Court has recognized the difference between survival statutes permitting personal injury claims of an injured individual after death, and wrongful death claims by relatives or family of a decedent after a death:

Wrongful-death statutes are to be distinguished from survival statutes. The latter have been separately enacted to abrogate the common-law rule that an action for tort abated at the death of either the injured person or the tortfeasor. Survival statutes permit the deceased's estate to prosecute any claims for personal injury the deceased would have had, but for his death. They do not permit recovery for harms suffered by the deceased's family as a result of his death.

Sea-Land Services, Inc. v. Gaudet , 414 U.S. 573, 575 n. 2, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974).

A personal injury action in federal law will have a statute of limitations that accrues on discovery of the illness or accident causing the damages. See United States v. Kubrick , 444 U.S. 111, 120 n.7, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979). But by contrast, a wrongful death action cannot logically accrue until after the death of the injured seaman. Stated another way, the plaintiff in a personal injury action or a survival action for the seaman's estate after his death assumes the legal posture of the seaman. But by contrast, the plaintiff in a wrongful death action is necessarily a family member or relative of the deceased. This distinction was explained by an Indiana Appellate Court in a case dealing with an Indiana statute governing wrongful death: "[T]he wrongful death claim is designed to compensate for the loss to the survivors caused by the decedent's death, and not the underlying injury."

Holmes v. ACandS, Inc. , 709 N.E.2d 36, 39 (Ind. Ct. App. 1999). "Such a claim necessarily involves causation and damages questions distinct from those at issue in a malpractice claim that does not involve a death. In order to meaningfully evaluate the extent of its liability in a death case, the federal agency must have notice of the death, not merely an assertion of medical malpractice." See Warrum v. United States , 427 F.3d 1048, 1051–1052 (7th Cir. 2005).

The Supreme Court in Moragne v. States Marine Lines, Inc. , 398 U.S. 375, 406, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970), established broadly that wrongful death claims could be asserted under maritime admiralty law, and recognized the difference between a wrongful death suit and a survival action.

But the Supreme Court expressly did not decide when a maritime claim for wrongful death accrues. In Moragne , the Court said it need not decide when the claim accrued because that suit was brought a short time after accident. See id.

Although the Supreme Court in Moragne did not settle the issue of when a claim accrues for wrongful death, the Supreme Court in other cases has indicated that a "discovery rule" applies. We next discuss the Supreme Court's reasoning and decisions in Urie v. Thompson , 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) and United States v. Kubrick , 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

In Urie , the Supreme Court considered limitations under the Federal Employees Liability Act ("FELA"). A railroad worker had sued his employer eighteen months after incapacitation from silicosis. He had been subjected to silica dust for some thirty years before bringing his lawsuit. The railroad defended arguing that the illness had to have been contracted more than three years before suit was filed. But the Supreme Court rejected that approach to claim accrual, and instead held that the claim accrued on the date the worker first knew or should have known of his injury and its cause. Id. at 170, 69 S.Ct. 1018.

In United States v. Kubrick , 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), the Supreme Court considered the Federal Tort Claims Act (FTCA), and limitations under that law which had a two-year statute of limitations, barring any claim not brought...