Miles v. Ashland Chemical Co.

• Decision Date: 15 November 1991
• Docket Number: No. S91Q0739,S91Q0739
• Citation: 410 S.E.2d 290,261 Ga. 726
• Parties: , Prod.Liab.Rep. (CCH) P 13,004 MILES et al. v. ASHLAND CHEMICAL CO. et al.
• Court: Georgia Supreme Court

Page 290

410 S.E.2d 290

261 Ga. 726, Prod.Liab.Rep. (CCH) P 13,004

MILES et al. v. ASHLAND CHEMICAL CO. et al.

No. S91Q0739.

Supreme Court of Georgia.

Nov. 15, 1991.

Reconsideration Denied Dec. 4, 1991.

[261 Ga. 734] Clarence L. Martin, Fay, Cox & Markey, Savannah, for Delores Miles et al.

Phillip S. McKinney, Allie S. Edwards, Rogers & Hardin, Atlanta, for Ashland Chemical Co. et al.

Anne E. Williams, Atlanta, William S. Stone, Blakely, Frank J. Beltran, Atlanta, Karen Kelly Daniels, Macon, for amicus.

HUNT, Justice.

In this certified question from the Eleventh Circuit Court of Appeals, 924 F.2d 1026, we are asked: "Do the Georgia courts follow the discovery rule in applying the statute of limitations to a wrongful death action alleging a failure to warn?"

The facts are set out by the Eleventh Circuit:

The plaintiffs in these cases are relatives of three decedents, Carol Williams, Harmon M. Gaines, and John T. McKenna. The decedents were all employed by Great Dane Trailers, Inc. Each of the decedents died from cancer. Carol Williams died from renal cell carcinoma in April, 1984; Harmon Gaines died from carcinoma of the colon in August, 1979; and John McKenna died from adenolymphoma in October, 1984. The defendants, Ashland Chemical Company and Swift Adhesive, Inc., are manufacturers of Fome Bond, a product containing Methylene Chloride that is used by Great Dane Trailers, Inc.

The plaintiffs contend that it was not until September 3, 1987, that they first learned of the relationship between exposure to Methylene Chloride and cancer. On May 26, 1989, each plaintiff filed a wrongful death action against one or both of the defendants in the Superior Court of Chatham County, Georgia. The plaintiffs allege that defendants failed to provide adequate warnings of the dangers The applicable statute of limitation, OCGA § 9-3-33, provides "[a]ctions for injuries to the person shall be brought within two years after the right of action accrues ..." Taylor v. Murray, 231 Ga. 852, 854, 204 S.E.2d 747 (1974). In the case before us, the plaintiffs seek to extend the commencement of the statute of limitation for wrongful death to September 3, 1987, when they discovered the cause of death, even though this was over two years after the decedents died.

of exposure to Methylene Chloride. The defendants removed these cases from state court to the district court for the Southern District of Georgia. Thereafter the defendants moved the court for judgment on the pleadings, contending that the plaintiffs' actions were barred by Georgia's two-year statute of limitations for wrongful death claims. The district court granted the defendant's motion, ruling that the two-year statute of limitations began to run on the date of death.

Under the "discovery rule", the right of action does not "accrue" until the injured person discovers the cause of his or her injury. Everhart v. Rich's, Inc., 229 Ga. 798, 802, 194 S.E.2d 425 (1972). Similarly, the failure to warn of a hazard capable of producing an injury due to continued exposure constitutes a continuing tort, which "accrues" when the failure to warn is discovered by the injured plaintiff. Id. If the cause of the injuries in the cases before us had been discovered during their lifetimes, the decedents would have had personal causes of action in continuing tort, and the benefit of the discovery rule. King v. Seitzingers, 160 Ga.App. 318, 287 S.E.2d 252 (1982). However, an action for wrongful death "accrues" to the heirs at death, ¹ not at the time the cause of the injury is discovered. ² Lovett v. Garvin, 232 Ga. 747, 748, 208 S.E.2d 838 (1974); Burns v. Brickle, 106 Ga.App. 150, 153, 126 S.E.2d 633 (1962).

The plaintiffs urge us to follow other jurisdictions which apply the discovery rule to wrongful death cases. E.g., Frederick v. Calbio Pharmaceuticals, 89 Cal.App.3d 49, 152 Cal.Rptr. 292 (2d District 1979); Gosnell v. Ashland Chemical Inc., 674 S.W.2d 737 (Tenn.Ct.App.1984). These jurisdictions have either historically applied the discovery rule to wrongful death, or have broadly interpreted their wrongful death statutes. Georgia, however, has construed the wrongful death statute narrowly: ³

We have consistently held since our statutes give a right of action not had at common law, they must be strictly construed or limited strictly to the meaning of the language employed and not extended beyond plain and explicit terms.

Ford Motor Co. v. Carter, 239 Ga. 657, 658, 238 S.E.2d 361 (1977); Taylor v. Murray, supra, 231 Ga. at 854, 204 S.E.2d 747.

Under OCGA § 9-3-33, the defendants' liability extended two years from the date of death. ⁴ To prolong the running of this period would be to subject the defendants to potentially infinite liability and is counter to the policy underlying statutes of limitation. ⁵ We decline to extend the statute The answer to the certified question is no.

of limitation by adopting the discovery rule in wrongful death cases.

Certified question answered in the negative.

All the Justices concur, except SMITH, P.J., and BENHAM, J., who dissent.

SMITH, Presiding Justice, dissenting.

The Eleventh Circuit Court of Appeals certified the following question to this Court in Miles v. Ashland Chemical Co., A Div. of Ashland Oil, 924 F.2d 1026, 1028 (11th Cir.1991):

Is the running of the Georgia two-year statute of limitations for a wrongful death action, based upon an alleged failure to warn, tolled until the plaintiff discovers, or with reasonable diligence should have discovered, that the defendant was at least in part responsible for the death of the decedent? Put another way, do the Georgia courts follow the discovery rule in applying the statute of limitations to a wrongful death action alleging a failure to warn?

I would answer this question in the affirmative for the following reasons.

HISTORY OF THE WRONGFUL DEATH STATUTE

At common law, there was no wrongful death action, but with the emergence of the Industrial Revolution the previously non-mechanized society began to work with machines that maimed and killed. The newly invented steam engines and boilers would often explode causing injury; medical science was still in its infancy and injuries became deaths. The British Parliament enacted legislation in an effort to provide a remedy; among the new remedies was, Lord Campbell's Act, a homicide act that permitted the decedent's cause of action to survive in the legal representative. The 1846 homicide act was the first wrongful death cause of action. Within four years, the Georgia General Assembly enacted its first wrongful death action. Eldridge's Ga. Wrongful Death Action, Ch. 1.

The wrongful death statutes, as they have evolved today, allow certain individuals to "recover for the homicide" of other individuals. "Homicide" as defined in OCGA § 51-4-1(2)

... includes all cases in which the death of a human being results from a crime, from criminal or other negligence, or from property which has been defectively manufactured, whether or not as result of negligence.

The individuals who may recover include: a surviving spouse, or if no surviving spouse a child or children may recover for the homicide of a parent, OCGA § 51-4-2(a), (b); a parent may recover for the homicide of a child, OCGA § 51-4-4; if no person is entitled to bring an action pursuant to OCGA §§ 51-4-2 or 51-4-4, then the personal representative may recover for the homicide, OCGA § 51-4-5(a). Adams and Adams state that OCGA § 51-4-5(a) "is the 'fail-safe' provision which ensures that some party will always be available to prosecute a wrongful death action, even in the absence of any of the statutory plaintiffs ..." Georgia Law of Torts, § 31-6.

THE STATUTE OF LIMITATION

The applicable statute of limitation, a general statute of limitation that applies to personal injuries provides, in pertinent part: "Actions for injuries to the person shall be brought within two years after the right of action accrues...." OCGA § 9-3-33. Similar accrual language caused division on this Court in Lumbermen's Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 330 S.E.2d 344 (1985). The problem arose when the discovery rule was extended to an action involving mere property damage based upon accrual language in OCGA § 9-3-30. Three years later this Court expressly overruled Lumbermen's Corp. of Mercer Univ. v. Natl. Gypsum

Co., 258 Ga. 365, 366, 368 S.E.2d 732 (1988). This Court decided that a wholesale use of the discovery rule each time we encountered a statute with the term "accrued" was unwarranted. We held that the discovery rule should be confined to cases in which "bodily injury" develops over an extended period of time. Id. Implicit in our decision was our recognition that greater protection is required in cases involving death and personal injury than in cases involving mere property damage. See also, Colonial Pipeline v. Brown, 258 Ga. 115, 123, 365 S.E.2d 827 (1988).

LEGISLATIVE INTENT

The choice of the word "accrues" and the absence of a statutory definition of the word indicate the General Assembly's intent to allow the courts substantial flexibility in determining when a limitation statute begins. ¹ When granted this flexibility we are required to construe the word "accrues" to achieve the goals of the particular statute under scrutiny so that our construction comports with the legislative intent.

As this Court stated in Thompson v. Watson, 186 Ga. 396, 404, 197 S.E. 774 (1938), the wrongful death statutes create a new cause of action in favor of the survivors,

the gist of the action is not the injury suffered by the deceased, but the injury suffered by the beneficiaries, resulting from the death of the deceased.... The cause of action, while dependent upon the fact of an actionable tort against the deceased, accrues only by reason of the death.

In Thompson, supra, and every other case that has followed, the tortfeasor and the cause of death were known. Today for the first...