Westfall v. Whittaker, Clark & Daniels

• Decision Date: 07 September 1983
• Docket Number: C.A. No. 79-0269B.
• Citation: 571 F. Supp. 304
• Parties: David Howard WESTFALL, in his capacity as Administrator of the Estate of Thomas Howard Westfall, and in his capacity as Administrator of the Estate of Betty E. Westfall v. WHITTAKER, CLARK & DANIELS, METROPOLITAN TALC CO., INC. Pfizer, Inc., Omya, Inc. and Windsor Minerals, Inc.
• Court: U.S. District Court — District of Rhode Island

571 F. Supp. 304

David Howard WESTFALL, in his capacity as Administrator of the Estate of Thomas Howard Westfall, and in his capacity as Administrator of the Estate of Betty E. Westfall v. WHITTAKER, CLARK & DANIELS, METROPOLITAN TALC CO., INC. Pfizer, Inc., Omya, Inc. and Windsor Minerals, Inc.

C.A. No. 79-0269B.

United States District Court, D. Rhode Island.

September 7, 1983.

R. Daniel Prentiss, Providence, R.I., for plaintiff.

Benjamin V. White, III, Providence, R.I., Edward Leibensperger, Nutter, McClennan & Fish, Boston, Mass., for defendant Windsor Minerals, Inc.

Michael G. Sarli, Robert W. Lovegreen, Providence, R.I., for defendant Whittaker, Clark & Daniels.

John F. Dolan, Providence, R.I., for defendant Omya, Inc.

William A. Curran, Providence, R.I., for defendant Metropolitan Talc Co., Inc.

OPINION

FRANCIS J. BOYLE, Chief Judge.

This civil action is presently before the Court on objections of the Plaintiff and Defendant Windsor Minerals, Inc. (hereinafter Windsor) to the Magistrate's report and recommendations as to the Motions for Summary Judgment of Defendant Omya, Inc. (hereinafter Omya) and Defendant Windsor. The Magistrate recommended that Defendant Omya's Motion for Summary Judgment be granted, and that Defendant Windsor's be denied. The issue, pared down to its simplest form, is whether Plaintiff's claims against these two Defendants are time barred.

A brief chronology of the pleadings is necessary to an understanding of the questions presented. On May 24, 1979, Thomas Howard Westfall and his wife, Betty E. Westfall, commenced this action to recover damages for pleural mesothelioma, a form of lung cancer caused by exposure to asbestos. Mr. Westfall alleged that he contracted the disease as a result of his inhalation of talc from 1946 to 1975, when he worked at the Uniroyal, Inc. plant in Providence, Rhode Island. Jurisdiction is based on diversity of citizenship. The original Defendants were Whittaker, Clark & Daniels (an alleged supplier of talc to Uniroyal), and "John Doe Corporation." Less than two months later, on July 10, 1979, Mr. Westfall died of pleural mesothelioma. July 10, 1979 was also the date on which Defendant Whittaker, Clark & Daniels filed a third-party complaint against Metropolitan Talc Company, Inc. and Pfizer, Inc.

On November 1, 1979, an amended complaint was filed substituting Betty Westfall, in her capacity as administratrix of her husband's estate, as named Plaintiff, and adding Metropolitan Talc Company, Inc. and Pfizer, Inc. as Defendants. Like the original complaint, the first amended complaint included three counts against "John Doe Corporation." Shortly thereafter, on November 17, 1979, Mrs. Westfall died and a second amended complaint was filed by the Westfalls' son, David Howard Westfall, in his capacity as administrator of the estates of his parents, as named Plaintiff in the action.

On May 24, 1982, Plaintiff again moved to amend his complaint. This motion was granted on June 14, 1982, and on June 18, 1982 the third amended complaint added Defendants Windsor Minerals, Inc. and Omya, Inc., and eliminated all references to "John Doe Corporation."

As the first of many arguments, both Windsor and Omya assert that the Rhode Island wrongful death statute in force at the time of Mr. Westfall's death applies to bar Plaintiff's action against them. Mr. Westfall died on July 10, 1979. At that time, the last sentence of R.I.Gen.Laws § 10-7-2 read, in pertinent part: "Provided, that every such action shall be commenced within two (2) years after the death of such person." R.I.Gen.Laws § 10-7-2 (1969 Reenactment). Windsor and Omya were added as Defendants in this action on June 18, 1982, more than two years after Mr. Westfall's death.

On May 12, 1981, before the two-year statutory period had run on Plaintiff's cause of action, R.I.Gen.Laws § 10-7-2 was amended, changing the limitations period from two years to three years. See 1980 R.I.Pub.Laws ch. 198, § 1. Plaintiff contends that this amendment applies retroactively, permitting the filing of an action up to three years after a decedent's death. If Plaintiff's contention were to prevail, no further inquiry would be necessary since Windsor and Omya were added as Defendants within three years of Mr. Westfall's death. Based on Rhode Island law, however, this Court finds that the May 12, 1981 amendment to the wrongful death statute cannot be applied retroactively.

The general rule applicable to all statutes of limitations with regard to the issue of retroactivity is "well-settled in Rhode Island." Skaba v. Capasso, 117 R.I. 512, 514, 368 A.2d 570, 571 (1977). In Fiske v. Briggs, 6 R.I. 557 (1860), the Rhode Island Supreme Court noted that "the general doctrine to be gathered from the decisions, both English and American, is, that the courts consider the language of these statutes of limitation, and make them retrospect, or otherwise, as the intention of the legislature is to be gathered from their language...." Id. at 563-64. In Rotchford v. Union Railroad Co., 25 R.I. 70, 54 A. 932 (1903), the court followed what it acknowledged to be "a familiar rule of construction that statutes of limitations are held to be prospective only in their operation, unless by their express terms or by necessary implication they shall be held to express the legislative intent that a retroactive effect is to be given to them." Id. at 72, 54 A. at 933. The "general doctrine" referred to in Fiske, and the "familiar rule of construction" referred to in Rotchford must still be applied to questions of retroactivity in the interpretation of Rhode Island statutes of limitations. See Skaba v. Capasso, 117 R.I. at 514, 368 A.2d at 571; Twomey v. Carlton House of Providence, Inc., 113 R.I. 264, 268, 320 A.2d 98, 100 (1974); Hester v. Timothy, 108 R.I. 376, 382, 275 A.2d 637, 640 (1971).

Furthermore, the law in Rhode Island is equally clear with respect to the statute of limitations for wrongful death actions. As summarized by the First Circuit in Cadieux v. International Telephone & Telegraph Corp., 593 F.2d 142 (1st Cir.1979):

the Rhode Island Supreme Court has consistently refused to read exceptions into the statute of limitations, reasoning that the time limit is a condition on the existence of a legislatively created cause of action unknown to the common law and therefore not subject to judicial alteration or expansion. Short v. Flynn 118 R.I. 441, 374 A.2d 787 (R.I.1977); Nascimento v. Phillips Petroleum Co., 115 R.I. 395, 346 A.2d 657 (1975); Tillinghast v. Reed, 70 R.I. 259, 38 A.2d 782 (1944).

Id. at 144. The First Circuit's analysis is undoubtedly correct in light of a Rhode Island Supreme Court memorandum decision one year later in which the court cited Short v. Flynn, and Tillinghast v. Reed, stating:

we are of the opinion that in a wrongful death action, the two year period within which the action must be brought constitutes a condition of limitation upon the created right itself and not merely a limitation affecting the remedy. The statute permits of no exception to this requirement.

Santelle v. Miriam Hospital, 414 A.2d 191, 191 (R.I.1980).

Turning to the 1981 amendment then, it is first necessary to examine the language used in order to determine whether by "express terms" or "necessary implication" it was intended to apply retroactively. R.I. General Laws § 10-7-2, as amended on May 12, 1981, reads thus:

Action by executor or administrator — Persons benefited — Commencement of action — Minimum recovery — Every such action shall be brought by and in the name of the executor or administrator of such deceased person, whether appointed or qualified within or without the state, and the amount recovered in every such action shall one-half (½) thereof go to the husband or widow, and one-half (½) thereof to the children of the deceased, and if there be no children the whole shall go to the husband or widow, and if there be no husband or widow, to the next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate. Provided, that every such action shall be commenced within three (3) years after the death of such person; and provided, further, whenever any person or corporation is found liable under 10-7-1 to 10-7-4, inclusive, he or it shall be liable in damages in the sum of not less than twenty-five thousand dollars ($25,000).

1980 R.I.Pub.Laws ch. 198, § 1.

Clearly, there is no express language in this amended version of the statute to make it retroactive. Plaintiff argues, however, that the statute necessarily implies retroactive application. The thrust of Plaintiff's argument is that because the amendment does not use words such as "after the cause of action shall accrue," or "after such person shall die," it should not be held to apply prospectively only. In support of this proposition, Plaintiff cites Fiske v. Briggs, 6 R.I. 557 (1860), Rotchford v. Union Railroad Co., 25 R.I. 70, 54 A. 932 (1903), and Twomey v. Carlton House of Providence, Inc., 113 R.I. 264, 320 A.2d 98 (1974).

At issue in Fiske was whether the statute of limitations for an action of debt upon a judgment was retroactive. The statute provided that such actions shall be commenced and sued "within twenty years, next after the cause of said action." 6 R.I. at 562. The court held that "there was nothing in this language to indicate a purpose to confine the operation of this act to causes of action which should accrue after the passage of the act," and distinguished the statutory language from that in "Williamson v. Field, ..., `after such action shall accrue,' which was held in that case to refer to such action as should thereafter accrue." (emphasis by the court) Id. at 562-63.

In Rotchford, a newly enacted statute of limitations for personal injury actions provided that "Actions of the case for injuries to the person shall be commenced and sued within two years next after the...