Russell v. Ingersoll-Rand Co.

• Decision Date: 02 August 1990
• Docket Number: INGERSOLL-RAND,No. 01-89-00397-CV,01-89-00397-CV
• Citation: 795 S.W.2d 243
• Parties: Prod.Liab.Rep. (CCH) P 12,626 Betty Parr RUSSELL (Individually and as Independent Executrix of the Estate of Donnon O'Neal Russell), Norma Lynn Coker, Gail Lee Harrah, Jeannie Marie Bourgoin, and Dennis O'Neal Russell, Appellants, v.COMPANY, McKenzie Equipment Company, Schramm, Inc., Cooper Industries, Inc., Joy Manufacturing Company, IC Group, Inc., and Sullair Corporation, Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 243

795 S.W.2d 243

Prod.Liab.Rep. (CCH) P 12,626

Betty Parr RUSSELL (Individually and as Independent Executrix of the Estate of Donnon O'Neal Russell) Norma Lynn Coker, Gail Lee Harrah Jeannie Marie Bourgoin, and Dennis O'Neal Russell, Appellants, v. INGERSOLL-RAND COMPANY, McKenzie Equipment Company, Schramm Inc., Cooper Industries, Inc., Joy Manufacturing Company, IC Group, Inc., and Sullair Corporation, Appellees.

No. 01-89-00397-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Aug. 2, 1990.

Rehearing Denied Sept. 13, 1990.

Michael Y. Saunders, John W. Tavormina, Houston, for appellants.

Max E. Roesch, Thomas B. Taylor, Edward J. Mahr, Robert F. Mahr, & William S. Rhea IV, Houston, for appellees.

Before SAM BASS, DUNN and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

This is an appeal from a summary judgment entered against plaintiffs. The trial court found that plaintiffs' survival and wrongful death suits, filed three months after the deceased's death, were barred by statutes of limitations. We affirm.

Plaintiffs are Betty Parr Russell (individually and as independent executrix of the estate of Donnon O'Neal Russell), Norma Lynn Coker, Gail Lee Harrah, Jeannie Marie Bourgoin, and Dennis O'Neal Russell. We refer to them as plaintiffs.

Defendants in this appeal are Ingersoll-Rand Company, McKenzie Equipment Company, Schramm, Inc., Cooper Industries, Inc., Joy Manufacturing Company, IC Group, Inc., and Sullair Corporation. When necessary to distinguish them from other defendants in the trial below, we refer to them collectively as the "Ingersoll-Rand defendants."

Donnon Russell worked as a sandblaster and painter for about 19 years. In 1981, Mr. Russell discovered he had silicosis, a lung disease, and that he probably developed it from working as a sandblaster. In December 1982, he filed suit against several corporations that manufactured or distributed the products his employer used in sandblasting. Mr. Russell did not sue the Ingersoll-Rand defendants. Mr. Russell died in January 1988.

In March 1988, Betty Parr Russell, individually and as executrix of her husband's estate, filed a fourth amended original petition. In that petition, she added survival and wrongful death causes of action, additional plaintiffs, and the Ingersoll-Rand defendants.

I. Standard of review

When the Ingersoll-Rand defendants moved for summary judgment, they were required to prove conclusively all the essential elements of their defenses, leaving no unresolved fact issues. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); DeLuca v. Munzel, 673 S.W.2d 373, 375 (Tex.App.--Houston [1st Dist.] 1984, writ ref'd n.r.e.). In deciding whether there was a material fact issue in dispute, the trial court was required to consider all evidence that favored the plaintiffs as true. Montgomery, 669 S.W.2d at 310-11. In this analysis, the court was required to indulge every inference it could reasonably draw from the evidence for the plaintiffs. Id. All doubts had to be resolved in their favor. Id.

By moving for summary judgment on grounds of limitations, the Ingersoll-Rand defendants assumed the burden of showing, as a matter of law, that the suit was barred by limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983).

II. The statute of limitations

In points one through five and point eight, plaintiffs argue that the Ingersoll-Rand defendants did not show, as a matter of law, that plaintiffs did not sue them within the limitations period.

The issue presented in this case is: When do the statutes of limitations begin to run on survival and wrongful death suits? Plaintiffs contend the death of Mr. Russell revived the causes of action against the Ingersoll-Rand defendants, even though limitations had run against Mr. Russell. The Ingersoll-Rand defendants claim that if it was too late for Mr. Russell to sue them, it was too late for Mr. Russell's estate and his statutory heirs to sue them.

Until fairly recent times, the right of action for personal injuries did not survive the death of the injured person. 4 F. Harper, F. James & O. Gray, The Law of Torts § 24.1 (2d ed. 1986) (hereinafter Harper). Actions that survived the death of the victim were created by legislation; they were not part of the common law. See Moreno v. Sterling Drug Co., 787 S.W.2d 348, 356 (Tex.1990).

The Texas scheme for death actions includes a survival cause of action and a wrongful death cause of action. Landers v. B.F. Goodrich Co., 369 S.W.2d 33, 35 (Tex.1963). The difference between the two actions lies in the beneficiaries and the damages. Id.; Harper § 24.1. A survival action is brought by the decedent's estate to redress the decedent's own injuries. Landers, 369 S.W.2d at 35; TEX.CIV.PRAC. & REM.CODE ANN. § 71.021 (Vernon 1986). A wrongful death action is brought by the statutory beneficiaries to compensate them for their loss of future care, maintenance, and support. Landers, 369 S.W.2d at 35; TEX.CIV.PRAC. & REM.CODE ANN. § 71.004 (Vernon 1986); Harper § 24.1.

Plaintiffs contend subsection (b) of section 16.003, entitled "Two-Year Limitations Period," controls the statutes of limitation in both survival and wrongful death suits. That subsection states:

A person must bring suit not later than two years after the day the cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

TEX.CIV.PRAC. & REM.CODE ANN. § 16.003(b) (Vernon 1986) (emphasis added).

Plaintiffs argue that the plain language of section 16.003(b) says the limitations period begins to run when the cause of action accrues--upon the death of the injured person. They maintain, therefore, that they filed the survival action (and the wrongful death suit) within the limitations period (three months after Mr. Russell died).

The Ingersoll-Rand defendants say that plaintiffs' suits are derivative of Mr. Russell's injury. Mr. Russell discovered his injury in 1981, and died in 1988. If we assume Mr. Russell had a four-year limitations period in which to sue those defendants, ¹ it expired sometime in 1985. At the time of his death, therefore, Mr. Russell could not have sued the Ingersoll-Rand defendants. Defendants claim that the same statutes of limitations that could have been asserted against Mr. Russell can be asserted against his estate and beneficiaries. If he could not file a suit against them at the time of his death, his estate and survivors are also barred from filing suit.

Plaintiffs contend we should resolve the issues by looking to chapter 16 in the Civil Practice and Remedies Code. Defendants argue that plaintiffs rely on the wrong statute. Instead of chapter 16 of the Civil Practice and Remedies Code, defendants contend we should look to chapter 71, which states in part:

This subchapter applies only if the individual injured would have been entitled to bring an action for the injury if he had lived.

TEX.CIV.PRAC. & REM.CODE ANN. § 71.003(a) (Vernon 1986) (emphasis added).

The problem confronting this Court is how to harmonize sections 16.003(b) and 71.003(a) of the Civil Practice and Remedies Code, and how these sections affect both survival and wrongful death causes of action. Although the parties argue the two as one, we will discuss them separately.

A. The survival action

Recall that the purpose of the Texas Survival Act is to continue the decedent's cause of action beyond his death to redress decedent's estate for decedent's injuries. Landers, 369 S.W.2d at 35; see also Castleberry v. Goolsby Bldg. Corp., 617 S.W.2d 665, 666 (Tex.1981); TEX.CIV.PRAC. & REM.CODE ANN. § 71.021. Subchapter B of chapter 71 defines the survival action. Section 71.021, entitled "Survival of Cause of Action," states:

(a) A cause of action for personal injury to the health, reputation, or person of an injured person does not abate because of the death of the injured person....

TEX.CIV.PRAC. & REM.CODE ANN. § 71.021 (Vernon 1986). The intent of the section is to abrogate the common law rule that the death of the party extinguished the cause of action.

Plaintiffs argue that Bradley v. Etessam, 703 S.W.2d 237, 239 (Tex.App.--Dallas 1985, writ ref'd n.r.e.), supports their position that the statute of limitations did not expire on the survival suit even though it expired on decedent's own suit. In Etessam, the wife and husband filed a malpractice action in December 1981, alleging that the doctor misdiagnosed the wife's breast cancer in February, 1980. The wife died in April 1982. ² In February 1983, the husband amended the petition, adding wrongful death and survival actions. Id. The trial court granted a partial summary judgment for the doctor on the ground that the statute of limitations ran against the wrongful death action, and severed it from the survival action. On appeal, the Dallas Court of Appeals reversed, holding that the wrongful death cause of action related back to the original suit filed by the decedent. Id. Although the statute of limitations for the survival action was not an issue in the case, the case stands for the proposition that the survival suit was timely filed.

Plaintiffs also cite Bradley v. Burnett, 687 S.W.2d 53, 54-55 (Tex.App.--Dallas 1985, no writ). In Burnett, the widow filed a survivor's suit in April 1982, alleging the doctor's last treatment of the decedent was in July 1980. The decedent died in February 1982. In October 1983, she amended the petition, adding a wrongful death claim. The Dallas Court of Appeals held that the wrongful death suit grew out of the same transaction as the survival suit; thus, the 1983 amendment adding a wrongful death claim was not barred by limitations. Although the statute of limitations for the survival action was not an issue in the case, the case stands for the proposition that the survival suit was timely filed.

We agree with both cases. In Etessam, the wife filed suit against the defendant for her injuries within the time limits...