Dunn v. Pacific Employers Ins. Co.
| Decision Date | 17 July 1992 |
| Docket Number | No. 139PA91,139PA91 |
| Citation | 332 N.C. 129,418 S.E.2d 645 |
| Court | North Carolina Supreme Court |
| Parties | Gloria Harris DUNN, Executrix of the Estate of Jerry Lewis Dunn, Deceased, v. PACIFIC EMPLOYERS INSURANCE COMPANY; Loss Control Services, Inc.; David A. Fraser, Sc.D.; Ennis, Lumsden, Boylston & Associates, Inc.; MacDermid, Inc.; Circuit Services Corp.; Mallinckrodt, Inc., Enthone, Inc.; Ashland International Corp.; Photo Chemical Systems; and Chemtech Industries, Inc. |
David H. Rogers, Raleigh, for plaintiff-appellant.
Merriman, Nicholls & Crampton, P.A. by W. Sidney Aldridge, Raleigh, for defendant-appellee, Ennis, Lumsden, Boylston & Associates, Inc.
LeBoeuf, Lamb, Leiby & MacRae by George R. Ragsdale, Raleigh, for defendant-appellee, OMI Internat. Corp.
Teague, Campbell, Dennis & Gorham by Thomas M. Clare, Raleigh, for defendant-appellees, Pacific Employers Ins. Co., Loss Control Services, Inc., and Chemtech Industries, Inc.
Bailey & Dixon by Carson Carmichael, III, Raleigh, for defendant-appellee, MacDermid, Inc. Poyner & Spruill by Beth R. Fleishman, Raleigh, for defendant-appellee, Photo Chemical Systems, Inc.
Moore & Van Allen by Elizabeth M. Powell, Raleigh, for defendant-appellee, Ashland Oil, Inc.
Haworth, Riggs, Kuhn & Haworth by John Haworth, High Point, for defendant-appellee, Dynachem Corp.
Brooks, Stevens & Pope, by David Victor Brooks, Cary, for defendant-appellee, David A. Fraser, Sc.D.
Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog by Robert W. Sumner, Raleigh, for defendant-appellee, Circuit Services Corp.
Manning, Fulton & Skinner by Michael T. Medford, Raleigh, for defendant-appellee, Mallinckrodt, Inc.
Janet Ward Black, Wallace, Whitley & Black, Salisbury, and J. Wilson Parker, Wake Forest University School of Law, Winston-Salem, for amicus curiae, North Carolina Academy of Trial Lawyers.
Thomas W.H. Alexander, Raleigh, for North Carolina Ass'n of Defense Attys., amici curiae.
This is a civil action grounded in negligence in which plaintiff seeks to recover damages for the wrongful death of her husband, Jerry Lewis Dunn. Plaintiff's husband was diagnosed as having liver cancer in August of 1985 and died from that disease on 24 June 1987. Plaintiff filed this wrongful death action on 23 June 1989. The issue is whether a wrongful death action filed more than three years after diagnosis of the fatal disease but within two years of decedent's death is barred by the statute of limitations.
Plaintiff's husband worked for the ITT Telecom Products Corporation ("ITT"), a subsidiary of International Telephone & Telegraph Corporation, at its manufacturing facility in Raleigh. While employed by ITT, plaintiff's husband was allegedly exposed to numerous hazardous and toxic chemicals. He was hospitalized on 20 August 1985 and was seen by a doctor at Wake Medical Center who established a tentative diagnosis of hepatoma (liver cancer). Following an exploratory laparotomy on 29 August 1985, doctors informed plaintiff and her husband that a biopsy had confirmed the initial diagnosis. Despite undergoing various treatments over the next two years, decedent died of liver cancer on 24 June 1987.
On 23 June 1989, plaintiff filed this wrongful death action, alleging that defendants negligently supplied and installed various harmful substances at decedent's workplace. Defendants moved to dismiss the action on the ground it was filed more than three years after decedent's fatal illness was diagnosed and therefore time-barred by N.C G.S. § 1-53(4). The trial court granted these motions. Plaintiff appealed.
A unanimous panel of the Court of Appeals agreed that plaintiff's claim was time-barred as to all defendants and affirmed the trial court's orders. We allowed plaintiff's petition for discretionary review, and we now reverse.
The applicable time periods for bringing an action for wrongful death are set out in N.C.G.S. § 1-53, which provides:
Within two years--
(4) Actions for damages on account of the death of a person caused by the wrongful act, neglect or fault of another under G.S. 28A-18-2; the cause of action shall not accrue until the date of death. Provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16), no action for his death may be brought.
We focus on the statute's proviso added in 1979. 1979 Sess.Laws ch. 654, § 3. Under it, a wrongful death claim is time-barred if "the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 1-15(c) or 1-52(16)." 1 Section 1-52(16) of the North Carolina General Statutes requires that a personal injury action be brought within three years from the date "bodily harm to the claimant ... becomes apparent or ought reasonably to have become apparent to the claimant, whichever event occurs first." In occupational disease cases, such as the instant case, a cause of action grounded in negligence accrues when the disease is diagnosed. Wilder v. Amatex Corp., 314 N.C. 550, 560-61, 336 S.E.2d 66, 72 (1985). In dispute is on what date the decedent must have had a viable claim for personal injury, i.e., a claim not time-barred by N.C.G.S. § 1-52(16)--the date of his death or the date upon which his personal representative files the wrongful death action--in order for the wrongful death action itself to be timely filed.
Defendants contend the date when the wrongful death action is instituted is the critical date. They construe the statute to provide two conditions to the timely filing of a wrongful death action: (1) that it be filed within two years of decedent's death and (2) that on the filing date, decedent, had he lived, would not have been time-barred from bringing a personal injury claim based upon the same alleged wrong.
Defendants also contend that any other interpretation of N.C.G.S. § 1-53(4) would render the statute's proviso surplusage and would hence violate the presumption that the legislature intended each statutory provision to be given full effect. Porsh Builders, Inc. v. City of Winston-Salem, 302 N.C. 550, 556, 276 S.E.2d 443, 447 (1981). Defendants argue that the proviso imposes an additional time restriction that can serve to cut short the ordinary two-year limitation for wrongful death actions if the decedent's disease or injury was diagnosed more than a year before his death.
Plaintiff, however, contends the proviso in N.C.G.S. § 1-53(4) was intended to bar wrongful death actions when the decedent's claim for bodily injury caused by the same alleged wrongful conduct had become time-barred during decedent's life. Under this interpretation, a wrongful death action may be maintained if: (1) it is instituted within two years of decedent's death and (2) on the date of his death the decedent's claim for bodily injury would not have been time-barred.
Although the Court of Appeals agreed with defendants' interpretation of the statute, Judge Wells, in a concurring opinion, noted that it was "anomalous ... that this plaintiff's right to sue for the wrongful death of her husband--a right which did not accrue until his death--must be cut off by a limitations clock which started running well before his death...." Dunn v. Pacific Employers Ins. Co., 101 N.C.App. 508, 513, 400 S.E.2d 63, 66 (1991).
We agree with plaintiff's interpretation of the statute. Under it, the proviso is not surplusage as defendants contend. It has the effect claimed by plaintiff.
We are persuaded by a recent federal decision, Thacker v. A.C. & S., Inc., No. 89-74 Civ. 7-F (E.D.N.C. 2 Nov. 1990), which addressed the issue now before us. In Thacker, a wrongful death claim was filed by the estate of a carpenter whose death was allegedly caused by exposure to...
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