Shover v. Cordis Corp., No. 90-332

CourtUnited States State Supreme Court of Ohio
Writing for the CourtHOLMES; HOLMES; MOYER; SWEENEY; SWEENEY; DOUGLAS; DOUGLAS; SWEENEY
Citation574 N.E.2d 457,61 Ohio St.3d 213
Docket NumberNo. 90-332
Decision Date31 July 1991
Parties, 60 USLW 2176, Prod.Liab.Rep. (CCH) P 12,955 SHOVER, Individually and as Personal Representative of Estate of Hood, Appellant, v. CORDIS CORPORATION, Appellee.

Page 213

61 Ohio St.3d 213
574 N.E.2d 457, 60 USLW 2176, Prod.Liab.Rep. (CCH) P 12,955
SHOVER, Individually and as Personal Representative of Estate of Hood, Appellant,
v.
CORDIS CORPORATION, Appellee.
No. 90-332.
Supreme Court of Ohio.
Submitted Jan. 22, 1991.
Decided July 31, 1991.
SYLLABUS BY THE COURT

Neither fraud nor the discovery rule can toll R.C. 2125.02(D), Ohio's statute § etting forth the time within which to commence wrongful death actions.

On July 21, 1983, Betty J. Hood, decedent and mother of the appellant, Carl Shover, had a Model 337A Multicor Gamma heart pacemaker surgically implanted in her. The pacemaker she received was manufactured by appellee, the Cordis Corporation.

Approximately one year later, on June 28, 1984, Mrs. Hood died. The parties agreed that her death certificate listed "medullary failure, acute

Page 214

pulmonary failure [and] arteriosclerotic heart disease" as the causes of her death.

On December 5, 1983, appellee recalled its Model 337A Multicor Gamma pacemaker and, on February 29, 1984, the Federal Food & Drug Administration issued a class I product recall for this same model. The federal recall was ordered after authorities concluded that defects in appellee's pacemakers may pose serious health hazards.

Appellant claims he never suspected a relationship between his mother's death and appellee's pacemaker until September 1, 1988. On this date, the Dayton Daily News featured a story relating the pacemaker recall and appellee's federal plea of guilty to charges of concealing the pacemaker's defects. After reading this article, the appellant claims he immediately contacted an attorney who conclusively established that the pacemaker implanted in appellant's mother was one of the models subject to the recall.

On January 23, 1989, appellant, individually and in his capacity as the personal [574 N.E.2d 459] representative of the estate of his mother, filed a civil complaint in the Court of Common Pleas of Montgomery County against appellee. Appellant's complaint alleged two separate causes of action. The first was based upon survivorship and products liability claims, and included negligence, strict liability, breach of express warranty, and breach of implied warranty theories of liability. Appellant's second claim was based upon wrongful death.

On March 31, 1988, appellee filed a Civ.R. 12(B)(6) motion to dismiss appellant's complaint. The trial court construed appellant's dual causes of action as one for wrongful death and granted appellee's motion. According to the trial court, since appellant failed to file his wrongful death claim within the two years following his mother's death, he was barred from bringing his claim.

On appeal, the Court of Appeals for Montgomery County reversed that portion of the trial court's judgment as it related to appellant's survivorship and products liability claims, but affirmed the dismissal of appellant's wrongful death claim.

The cause is now before this court upon the allowance of a motion to certify the record.

Michael F. Colley Co., L.P.A., Michael F. Colley, Columbus, and Kevin J. O'Brien, Dublin, for appellant.

Bieser, Greer & Landis and David C. Greer, Dayton, for appellee.

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HOLMES, Justice.

HOLMES, J. The issue presented in this appeal is whether fraud may toll R.C. 2125.02(D), Ohio's statute setting forth the time within which to commence wrongful death actions. For the reasons which follow, we answer this query in the negative and affirm the judgment of the court of appeals.

I

A statute of limitations "bars [a] right of action unless it is filed within [a] specified period of time after [an] injury occurs." (Emphasis added.) Black's Law Dictionary (6 Ed.1990) 927, citing Hanson v. Williams County (N.D.1986), 389 N.W.2d 319, 321. At R.C. 2125.01, the General Assembly has created an action for wrongful death. Pursuant to this section, an action for wrongful death occurs "[w]hen the death of a person is caused * * *." Death, therefore, is the event which triggers the cause of action.

Further, R.C. 2125.02(D) provides that "[a]n action for wrongful death shall be commenced within two years after the decedent's death." The effect of this provision is to bar wrongful death actions filed two years after the event of death, not two years from the date the plaintiff realized he was injured. Accordingly, we conclude that the legislature intended that wrongful death actions be brought within two years regardless of the date of discovery of the cause of the death. R.C. 2125.02(D).

II

At common law, there is no action for wrongful death. Keaton v. Ribbeck (1979), 58 Ohio St.2d 443, 12 O.O.3d 375, 391 N.E.2d 307; Rubeck v. Huffman (1978), 54 Ohio St.2d 20, 8 O.O.3d 11, 374 N.E.2d 411; Klema v. St. Elizabeth's Hospital (1960), 170 Ohio St. 519, 11 O.O.2d 326, 166 N.E.2d 765; Sabol v. Pekoc (1947), 148 Ohio St. 545, 549, 36 O.O. 182, 183, 76 N.E.2d 84, 87. Today, however, an action for wrongful death is a statutorily created right. COLLINS V. YANITY (1968), 14 OHIO ST.2D 202, 207, 43 O.O.2D 301, 304, 237 N.E.2D 611, 614.1 The wrongful death statute "is an innovation to the principles of the common law and affords the only civil remedy to compensate others for death resulting from injuries." Karr v. Sixt (1946), 146 Ohio St. 527, 33 O.O. 14, 67 N.E.2d 331, [574 N.E.2d 460] paragraph two of the syllabus. As such, an

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action for wrongful death must be exercised only under the specific conditions imposed by the statute. Rubeck v. Huffman, supra.

In Ohio, a plaintiff may bring a wrongful death claim, " * * * when the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured * * *." R.C. 2125.01.

The time period within which a plaintiff may bring a wrongful death claim, however, is not unlimited. Pursuant to R.C. 2125.02(D), "[a]n action for wrongful death shall be commenced within two years after the decedent's death." (Emphasis added.) Compliance with the period of limitation for wrongful death claims is a condition precedent to the right to maintain the action. Sabol v. Pekoc, supra; Bazdar v. Koppers Co., Inc. (N.D.Ohio 1981), 524 F.Supp. 1194; Johnson v. Koppers Co. (N.D.Ohio 1981), 524 F.Supp. 1182. Moreover, in construing the language in R.C. 2125.02 we have observed that it " * * * expresses an integral element of the right of the action itself and if an action is not brought within two years from the death of the decedent it must fail, not because a statute of limitations provides the time within which it must be brought but because the time limit is the very essence of the action." Sabol v. Pekoc, supra, 148 Ohio St. at 552, 36 O.O. at 185, 76 N.E.2d at 88.

In this case, appellant's decedent died on June 28, 1984. Appellant's wrongful death claim, however, was not filed until January 23, 1989. The cause of action accrued on the date of death. Because appellant failed to file his claim within the prescribed statutory time frame, he has not pled all the necessary elements of the action and, therefore, he has no wrongful death claim.

III

Appellant contends, however, that the appellee's fraud should toll R.C. 2125.02(D) and expand the time within which he can bring his claim. This court has historically rejected this argument, and we are unpersuaded to change our position today.

A number of prior cases decided within this state have held that "[a] fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations." Johnson v. Koppers Co., supra; Shrewsbury v. Smith (C.A.6, 1975), 511 F.2d 1058; Sabol v. Pekoc, supra; Fee's Admr. v. Fee (1841), 10 Ohio 469, syllabus. It has also been held that fraud may toll a statute of limitations only where fraud is the gist of the action. Baldridge v. Toombs (1962), 118 Ohio App. 229, 25 O.O.2d 70, 189 N.E.2d 635.

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In the case sub judice, appellant brought a wrongful death claim against appellee. A wrongful death claim does not have its inception in fraud, but rather is based upon "the death of a person." R.C. 2125.01. Accordingly, we conclude that fraud will not enlarge the statutory period within which appellant is required to file his wrongful death claim.

Such result, however, does not preclude the appellant from bringing a cause of action in fraud, 2 separate and independent from wrongful death. This fraud claim may be brought pursuant to R.C. 2305.21, which states, "[i]n addition to the causes of action which survive at common [574 N.E.2d 461] law, causes of action * * * for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto." Although a cause of action for the tort of fraud must be brought within four years from the time the cause accrued, the cause does not accrue until the fraud and the wrongdoer are actually discovered. (R.C. 2305.09.) Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101, paragraph three of the syllabus. In addition, it has long been the rule in our state that "[a] person injured by fraud is entitled to such damages as will fairly compensate him for the wrong suffered; that is, the damages sustained by reason of the fraud or deceit, and which have naturally and proximately resulted therefrom." Foust v. Valleybrook Realty Co. (1981), 4 Ohio App.3d 164, 166, 4 OBR 264, 267, 446 N.E.2d 1122, 1126. See Molnar v. Beriswell (1930), 122 Ohio St. 348, 8 Ohio Law Abs. 306, 171 N.E. 593, paragraph one of the syllabus; Bartges v. O'Neil (1861), 13 Ohio St. 72, 77-78; Bartholomew v. Bentley (1846), 15 Ohio 659.

In this case, appellant claims that he first discovered...

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    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
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    • United States
    • United States State Supreme Court of Ohio
    • 29 Abril 1998
    ...rule applies to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim. (Shover v. Cordis Corp. [1991], 61 Ohio St.3d 213, 574 N.E.2d 457, 2. In a wrongful death action that stems from a murder, the statute of limitations begins to run when the victim's survivo......
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    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 11 Enero 1995
    ...even if the defendant prevented the plaintiff from prosecuting the action through fraudulent concealment. See Shover v. Cortiz Corp., 61 Ohio St.3d 213, 219, 574 N.E.2d 457, 462 (1991), reh'g. denied, 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991). Defendants unwittingly assist plaintiffs in the......
  • Loren Dean Frost v. Dayton Power and Light Co., 00-LW-3130
    • United States
    • United States Court of Appeals (Ohio)
    • 23 Junio 2000
    ...Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 436-37, 659 N.E.2d 1232, 1240; Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220, 574 N.E.2d 457, 462; Conley v. Norfolk & Western Ry. Co. (June 7, 1999), Scioto App. No. 98 CA 2611, unreported. Assuming, arguendo, ap......
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286 cases
  • In re Enron Corporation Securities, Derivative, No. MDL-1446.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • 24 Agosto 2007
    ...the complained of injury." Investors REIT One v. Jacobs, 46 Ohio St.3d 176, 179, 546 N.E.2d 206 (1989); Shover v. Cordis Corp., 61 Ohio St.3d 213, 574 N.E.2d 457 (1991); Bossey v. Al Castrucci, Inc., 105 Ohio App.3d 666, 669, 664 N.E.2d 1301, 1303 (Ct.App. 2 Dist.1995). "It is noteworthy th......
  • Collins v. Sotka, No. 96-2127
    • United States
    • United States State Supreme Court of Ohio
    • 29 Abril 1998
    ...rule applies to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim. (Shover v. Cordis Corp. [1991], 61 Ohio St.3d 213, 574 N.E.2d 457, 2. In a wrongful death action that stems from a murder, the statute of limitations begins to run when the victim's survivo......
  • In re Cincinnati Radiation Litigation, No. C-1-94-126.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • 11 Enero 1995
    ...even if the defendant prevented the plaintiff from prosecuting the action through fraudulent concealment. See Shover v. Cortiz Corp., 61 Ohio St.3d 213, 219, 574 N.E.2d 457, 462 (1991), reh'g. denied, 62 Ohio St.3d 1410, 577 N.E.2d 362 (1991). Defendants unwittingly assist plaintiffs in the......
  • Loren Dean Frost v. Dayton Power and Light Co., 00-LW-3130
    • United States
    • United States Court of Appeals (Ohio)
    • 23 Junio 2000
    ...Gallagher v. Cleveland Browns Football Co. (1996), 74 Ohio St.3d 427, 436-37, 659 N.E.2d 1232, 1240; Shover v. Cordis Corp. (1991), 61 Ohio St.3d 213, 220, 574 N.E.2d 457, 462; Conley v. Norfolk & Western Ry. Co. (June 7, 1999), Scioto App. No. 98 CA 2611, unreported. Assuming, arguendo, ap......
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