Velarde v. Board of Review of Indus. Com'n of Utah

• Decision Date: 14 April 1992
• Docket Number: No. 910484-CA,910484-CA
• Citation: 831 P.2d 123
• Parties: Sadie VELARDE, spouse of Nicanor Velarde, deceased, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH; and Kennecott Copper Corporation, Respondents.
• Court: Utah Court of Appeals

Page 123

831 P.2d 123

Sadie VELARDE, spouse of Nicanor Velarde, deceased, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH; and Kennecott Copper Corporation, Respondents.

No. 910484-CA.

Court of Appeals of Utah.

April 14, 1992.

James R. Black (argued), Susan Black, Callister, Duncan & Nebeker, Salt Lake City, for petitioner.

James M. Elegante (argued), Howard C. Young, Parsons, Behle & Latimer, Salt Lake City, for respondent Kennecott Copper.

Benjamin A. Sims, Thomas C. Sturdy, Indus. Com'n of Utah, Salt Lake City, for respondent Indus. Com'n.

Before BILLINGS, JACKSON and RUSSON, JJ.

JACKSON, Judge:

Petitioner, Sadie Velarde, appeals the action of the Industrial Commission (the Commission) dismissing her claim for death benefits under the Utah Occupational Disease Act (the Act), ¹ on the basis that the statute under which her claim was denied is an unconstitutional statute of repose. We reverse and remand.

FACTS ²

On March 24, 1982, after almost nine years as an employee of respondent, Kennecott Copper Corporation (Kennecott), petitioner's husband, Nicanor Velarde took medical retirement. ³ The cause of Mr. Velarde's retirement was rheumatoid arthritis. However, at Kennecott, Mr. Velarde had worked in various positions which exposed him to silicon dioxide. At the time of his retirement Mr. Velarde was experiencing some symptoms of silicosis, a lung disease caused by inhaling silicone dioxide dust. Subsequently, in July of 1982 and May of 1983, Mr. Velarde was diagnosed as having symptoms consistent with silicosis. Apparently unaware that this diagnosis gave him a cause of action under the Act, Mr. Velarde failed to file a claim with the Commission until January 9, 1986. Supporting Mr. Velarde's claim, Dr. Mark Shockey presented a formal diagnosis of silicosis and, in correspondence to the Commission, expressed the opinion "that at least part of the exposure occurred during [Mr. Velarde's] employment for Kennecott Copper."

Without making a finding on the merits, the administrative law judge (ALJ) dismissed Mr. Velarde's claim on the basis that Mr. Velarde had failed to comply with the statute of limitations of Utah Code Ann. § 35-2-48 (1988), which requires a filing with the Commission no later than one year after the cause of action arises. The ALJ ruled that Mr. Velarde's cause of action for occupational disease benefits arose no later than October of 1983, more than one year prior to the filing in January of 1986. The Commission affirmed the dismissal, and Mr. Velarde did not appeal further. During this administrative process, Mrs. Velarde made no appearance nor did anyone appear in her behalf.

On January 13, 1990, after a stay in the hospital, Mr. Velarde died. Both the Death Summary and the Certificate of Death listed silicosis as a contributory cause of death. On September 7, 1990, Mrs. Velarde filed with the Commission a claim for death benefits under the Act. The ALJ dismissed the claim, as required by Utah Code Ann. § 35-2-13(b)(3) (1988), on the basis that Mr. Velarde's death from silicosis occurred more than three years after the date of Mr. Velarde's last employment with Kennecott. The Commission subsequently denied Mrs. Velarde's Motion for

Review. Mrs. Velarde then appealed to this court.

ISSUES ON APPEAL

Mrs. Velarde asserts that Utah Code Ann. § 35-2-13(b)(3)(a) (1988) violates the Utah Constitution's open courts provision and deprives her of her right to equal protection under the United States and the Utah Constitutions. Section 35-2-13(b)(3)(a) allows no silicosis death benefits to surviving dependents "unless the death results within three years from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except ... [when] death results during a period of continuous total disability from silicosis for which compensation has been paid or awarded." Mrs. Velarde claims this is an unconstitutional statute of repose because it deprived her of her cause of action before the claim for death benefits actually arose. As part of this assertion, she maintains that because her cause of action did not arise until Mr. Velarde's death, she cannot now be penalized by being denied death benefits based on Mr. Velarde's failure timely to assert his right to disability compensation. Kennecott responds that the statute of repose is not unconstitutional because Mrs. Velarde's right to disability compensation commenced with her husband's, so she had the alternative remedy of seeking Mr. Velarde's disability compensation herself. Kennecott further reasons that in any case, the statute of repose passes constitutional muster because it has a clear public policy legislative purpose and the means are finely tuned to that purpose.

STANDARD OF REVIEW

The Utah Administrative Procedures Act ⁴ permits us to grant relief if Mrs. Velarde has been substantially prejudiced because the Commission "has erroneously interpreted or applied the law," Utah Code Ann. § 63-46b-16(4)(d) (1989), or because "the agency action, or the statute or rule on which the agency action is based, is unconstitutional on its face or as applied." Utah Code Ann. § 63-46b-16(4)(a) (1989). Under section 63-46b-16(4)(d), we thus review for correctness the Commission's interpretation of when Mrs. Velarde's cause of action arose; we need not defer to the Commission's interpretation because the statute has not expressly or impliedly granted the Commission discretion on this issue. Morton Int'l, Inc. v. Auditing Div. of the Utah State Tax Comm'n, 814 P.2d 581, 587-89 (Utah 1991); see also Mor-Flo Indus. v. Board of Review of Indus. Comm'n, 817 P.2d 328 (Utah App.1991) (further explicating the Morton standard), cert. denied, --- P.2d ---- (Utah 1992). Under section 63-46b-16(4)(a), we review the constitutionality of the statute upon which the Commission's action is based without deference, as a conclusion of law. ⁵ See Amax Magnesium Corp. v. Utah State Tax Comm'n, 796 P.2d 1256 (Utah 1990).

THE STATUTE OF REPOSE AND THE OPEN COURTS PROVISION

Our primary inquiry on appeal is the constitutionality of the Act's statute of repose on claims for death benefits for death resulting from silicosis. Although a statute of repose is similar to a statute of limitations, the two operate differently. A statute of limitations precludes suit a statutorily specified number of years after a cause of action accrues. A statute of repose, on the other hand, prevents suit a statutorily specified number of years after a particular event occurs, without regard to when the cause of action accrues. Sun Valley Water Beds v. Herm Hughes &amp Son, Inc., 782 P.2d 188, 189 (Utah 1989). Hence, a statute of repose may bar the filing of a lawsuit even though the cause of action did not arise until after the action was barred and although the injured person was diligent in seeking a remedy. Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 672 (Utah 1985). ⁶ Although such statutes have passed constitutional muster in other states, see Horton v. Goldminer's Daughter, 785 P.2d 1087, 1091 n. 3 (Utah 1989), Utah courts have interpreted the open courts provision of the Utah Constitution to proscribe statutes of repose unless the statutes have certain redeeming characteristics. Utah's open courts provision states:

All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.

Utah Const. art. I, § 11. Although we may not apply section 11 "in a mechanical fashion to strike every statute with which there may be conflict," Berry, 717 P.2d at 680, the section imposes serious limits on the legislature's power to deny plaintiffs their existing common law rights and remedies.

[The] basic purpose of Article I, section 11 is to impose some limitation on [the legislature's power to create new rules of law and abrogate old ones] for the benefit of those persons who are injured in their persons, property, or reputations since they are generally isolated in society, belong to no identifiable group, and rarely are able to rally the political process to their aid.

Id. at 676. The supreme court has adopted a two-part test which contemplates both the individual rights constitutionally protected by the open courts provision and the legislative interest in promoting the social and economic welfare.

First, section 11 is satisfied if the law provides an injured person an effective and reasonable alternative remedy "by due course of law" for vindication of his constitutional interest. The benefit provided by the substitute must be substantially equal in value or other benefit to the remedy abrogated in providing essentially comparable substantive protection to one's person, property, or reputation, although the form of the substitute remedy may be different....

Second, if there is no substitute or alternative remedy provided, abrogation of the remedy or cause of action may be justified only if there is a clear social or economic evil to be eliminated and the elimination of an existing legal remedy is not an arbitrary or unreasonable means for achieving the objective.

Id. at 680 (citations omitted). In the present case, the Act's statute of repose applying to death benefits provides in pertinent part:

No compensation shall be paid for death from silicosis unless the death results within three years from the last day upon which the employee actually worked for the employer against whom compensation is claimed, except: (a) in those cases where death results during a period of continuous total disability from silicosis for which compensation has been paid or awarded....

Utah Code Ann. § 35-2-13(b)(3) (1988). Because the...