Sherri Deem v. the William Powell Company

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SHERRI L. DEEM, individually and as No. 20-35165
Personal Representative for the
estate of Thomas A. Deem, D.C. No.
deceased, 3:17-cv-05965-
Plaintiff-Appellant, BHS

v. OPINION

THE WILLIAM POWELL COMPANY;
JOHN CRANE, INC.; CROSBY VALVE,
LLC; INGERSOLL-RAND COMPANY,
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding

Argued and Submitted September 2, 2021
Seattle, Washington

Filed April 29, 2022

Before: M. Margaret McKeown and Ronald M. Gould,
Circuit Judges, and Jed S. Rakoff, * District Judge.

Opinion by Judge Gould

*
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
2 DEEM V. THE WILLIAM POWELL CO.

SUMMARY **

Admiralty

Reversing the district court’s dismissal of a wrongful
death claim under admiralty jurisdiction, the panel held that
a wrongful death claim in admiralty can only accrue on or
after the death of the seaman, and not before.

Thomas Deem’s work as an outside machinist onboard
ships at Puget Sound Naval Shipyard included removing and
installing piping insulation, gaskets, and other parts that may
have contained asbestos in various compartments
throughout the ships. He was diagnosed with mesothelioma
on February 20, 2015, and he died on July 3, 2015. His wife,
Sherri Deem, filed suit in federal court on June 28, 2018,
seeking damages under a wrongful death theory from entities
who manufactured, sold, and distributed asbestos-containing
products to which Thomas Deem could have been exposed.

Applying federal law, and distinguishing wrongful death
claims from survival statutes permitting personal injury
claims of an injured individual after death, the panel held
that a wrongful death claim cannot arise or accrue before
death even if the cause of death is anticipated. Thus, the
accrual of the three-year statute of limitations for maritime
torts, 46 U.S.C. § 30106, began to run on the date of death
of Thomas Deem, and not on the date of discovery of the
injury or illness that ultimately resulted in his death.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 DEEM V. THE WILLIAM POWELL CO. 3

The panel remanded to the district court for
reconsideration of Sherri Deem’s claims in light of the
panel’s holding that the statute of limitations began to accrue
on the date of Thomas Deem’s alleged wrongful death, and
not before that death.

COUNSEL

Lisa W. Shirley (argued) and Ka’Leya Q. Hardin, Dean
Omar Branham Shirley LLP, Dallas, Texas; Thomas J.
Breen, Lucas Garrett, and Elizabeth McLafferty, Schroeter
Goldmark & Bender, Seattle, Washington; for Plaintiff-
Appellant.

Brian J. Schneider (argued), Hawkins Parnell & Young LLP,
Chicago, Illinois; Ronald C. Gardner, Gardner Tabolsi &
Mordehkov PLLC, Seattle, Washington; James D. Hicks,
Foley & Mansfield PLLP, Seattle, Washington; for
Defendants-Appellees.
4 DEEM V. THE WILLIAM POWELL CO.

OPINION

GOULD, Circuit Judge:

We must decide whether a wrongful death claim under
admiralty jurisdiction first accrues on or after the date of the
death of a seaman, or whether it accrues when the seaman
first learned of his illness or injury. For the reasons that
follow, we hold that a wrongful death claim in admiralty can
only accrue on or after death of the seaman, and not before
then. 1

From February 7, 1974, until February 22, 1981, Thomas
Deem worked as an outside marine machinist at Puget Sound
Naval Shipyard (“PSNS”). As a machinist, Thomas Deem
was one of those responsible for “overhauling” the
components of docked naval vessels. The “overhauling”
process is a term used to describe the refurbishing and repair
of vessels and their components. The overhauling process
was split between inside and outside machinists. Inside
machinists removed parts from the vessels and took them off
the ships to be repaired in workshops. Outside machinists,
like Thomas Deem, worked onboard the vessels repairing
major machinery that could not readily be removed from the
ships. Thomas Deem’s work included removing and

1
On July 23, 2020 this court by its order (Docket #21) stayed
appellate proceedings as to defendant-appellee Ingersoll-Rand Company
only, due to the automatic stay imposed by 11 U.S.C. § 362. See Cohen
v. Stratosphere Corp., 115 F.3d 695, 697 (9th Cir. 1997). That order also
provided: “This appeal will proceed as to the remaining parties.” On
January 27, 2021 this court by its order (Docket #37) administratively
closed this appeal as to Ingersoll-Rand Company. The court’s order also
provided: “This appeal will proceed as to the remaining parties.” This
opinion resolves the issues it addresses with regard to the non-stayed
parties only.
 DEEM V. THE WILLIAM POWELL CO. 5

installing piping insulation, gaskets and other parts that may
have contained asbestos in various compartments
throughout the ships.

On February 20, 2015, Thomas Deem was diagnosed
with mesothelioma. Thomas Deem died on July 3, 2015.
His wife, Sherri Deem, filed the underlying suit in the United
States District Court for the Western District of Washington
on June 28, 2018, within three years of the date her husband
died. She sought damages under a wrongful death theory
from entities who manufactured, sold, and distributed
asbestos-containing products to which Thomas Deem could
have been exposed, naming Appellees as defendants.
Appellees moved to dismiss Sherri Deem’s complaint,
arguing that the statute of limitations for her wrongful death
claim rendered her claim time-barred under Maritime law.

The district court, in a single order addressing the
defendants’ motion to dismiss and on Sherri Deem’s motion
for summary judgment, employing a three-part analysis,
agreed with the defendants-appellees. First, the district court
concluded that the statute of limitations began to run for
Sherri Deem’s claims when Thomas Deem learned of his
mesothelioma diagnosis in February of 2015. Second, the
district court found that Sherri Deem’s claim was governed
by Maritime law’s three-year statute of limitations codified
at 46 U.S.C. § 30106. Third, the district court concluded
that, because Sherri Deem filed the complaint on June 28,
2018, three years and four months after Thomas Deem’s
diagnosis, her claim was untimely under Maritime law.
Sherri Deem appeals.

We review de novo a district court’s dismissal under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Puri
v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017); Curtis v.
Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019).
6 DEEM V. THE WILLIAM POWELL CO.

We review a grant of summary judgment de novo.
Peters v. Burlington Northern R. Co., 931 F.2d 534, 537 (9th
Cir. 1990). We also review de novo the questions of when a
cause of action accrues and whether or not a claim is barred
by the statute of limitations. Oja v. U.S. Army Corps of
Engineers, 440 F.3d 1122, 1127 (9th Cir. 2006).

Appellees argue that a wrongful death action under
Maritime law begins to accrue under the “discovery rule.”
Appellees contend that the statute of limitations on a
wrongful death action under Maritime law begins to run on
the date the victim learns of their injury or diagnosis.
Crisman v. Odeco, Inc., 932 F.2d 413, 415 (5th Cir. 1991)
(A cause of action accrues when plaintiff “ha[s] a reasonable
opportunity to discover his injury, its cause, and the link
between the two.”).

Conversely, Appellant, Sherri Deem, argues that the
district court erred by treating her claims as time barred
because her wrongful death action began to accrue on the
date of her husband’s death, not on the date he discovered
his injury.

The issue before us is whether the accrual of the statute
of limitations for a wrongful death action under Maritime
law began to run on or after the date of death of Thomas
Deem or on the date of discovery of the injury or illness of
the deceased that ultimately resulted in his death.

The rule in the Ninth Circuit is clear that “the date on
which a claim accrues is determined by federal law.” See
Washington v. United States, 769 F.2d 1436, 1438 (9th Cir.
1985); see also Wallace v. Kato, 549 U.S. 384, 388 (2007)
(§ 1983 action). While federal law controls the time of
accrual of claims, id., the law has not been crystal clear as to
when a claim for wrongful death accrues. In this opinion for
 DEEM V. THE WILLIAM POWELL CO. 7

the reasons that follow, we clarify that a wrongful death
claim cannot arise or accrue before death even if the cause
of death is anticipated.

We review the pertinent precedents of the United States
Supreme Court and the United States Courts of Appeals for
the circuits that have addressed claim accrual in wrongful
death cases. We start with the important premise that the
Supreme Court has recognized the difference between
survival statutes permitting personal injury claims of an
injured individual after death, and wrongful death claims by
relatives or family of a decedent after a death:

Wrongful-death statutes are to be
distinguished from survival statutes. The
latter have been separately enacted to
abrogate the common-law rule that an action
for tort abated at the death of either the
injured person or the tortfeasor. Survival
statutes permit the deceased’s estate to
prosecute any claims for personal injury the
deceased would have had, but for his death.
They do not permit recovery for harms
suffered by the deceased’s family as a result
of his death.

Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 575 n. 2
(1974).

A personal injury action in federal law will have a statute
of limitations that accrues on discovery of the illness or
accident causing the damages. See United States v. Kubrick,
444 U.S. 111, 120 n.7 (1979). But by contrast, a wrongful
death action cannot logically accrue until after the death of
the injured seaman. Stated another way, the plaintiff in a
personal injury action or a survival action for the seaman’s
8 DEEM V. THE WILLIAM POWELL CO.

estate after his death assumes the legal posture of the
seaman. But by contrast, the plaintiff in a wrongful death
action is necessarily a family member or relative of the
deceased. This distinction was explained by an Indiana
Appellate Court in a case dealing with an Indiana statute
governing wrongful death: “[T]he wrongful death claim is
designed to compensate for the loss to the survivors caused
by the decedent’s death, and not the underlying injury.”
Holmes v. ACandS, Inc., 709 N.E.2d 36, 39 (Ind. Ct. App.
1999). “Such a claim necessarily involves causation and
damages questions distinct from those at issue in a
malpractice claim that does not involve a death. In order to
meaningfully evaluate the extent of its liability in a death
case, the federal agency must have notice of the death, not
merely an assertion of medical malpractice.” See Warrum v.
United States, 427 F.3d 1048, 1051–1052 (7th Cir. 2005).

The Supreme Court in Moragne v. States Marine Lines,
Inc., 398 U.S. 375, 406 (1970), established broadly that
wrongful death claims could be asserted under maritime
admiralty law, and recognized the difference between a
wrongful death suit and a survival action.

But the Supreme Court expressly did not decide when a
maritime claim for wrongful death accrues. In Moragne, the
Court said it need not decide when the claim accrued because
that suit was brought a short time after accident. See id.

Although the Supreme Court in Moragne did not settle
the issue of when a claim accrues for wrongful death, the
Supreme Court in other cases has indicated that a “discovery
rule” applies. We next discuss the Supreme Court’s
reasoning and decisions in Urie v. Thompson, 337 U.S. 163
(1949) and United States v. Kubrick, 444 U.S. 111 (1979).
 DEEM V. THE WILLIAM POWELL CO. 9

In Urie, the Supreme Court considered limitations under
the Federal Employees Liability Act (“FELA”). A railroad
worker had sued his employer eighteen months after
incapacitation from silicosis. He had been subjected to silica
dust for some thirty years before bringing his lawsuit. The
railroad defended arguing that the illness had to have been
contracted more than three years before suit was filed. But
the Supreme Court rejected that approach to claim accrual,
and instead held that the claim accrued on the date the
worker first knew or should have known of his injury and its
cause. Id. at 170.

In United States v. Kubrick, 444 U.S. 111 (1979), the
Supreme Court considered the Federal Tort Claims Act
(FTCA), and limitations under that law which had a two-year
statute of limitations, barring any claim not brought within
two years after it accrued. Although the Supreme Court
rejected a contention that the claimant had to know that a
tortfeasor was negligent before the claim accrued, the Court
applied a discovery rule in Kubrick just as it had in Urie,
clarifying there was need for discovery of the injury and its
cause, but not discovery that a tortfeasor was negligent and
that a good claim existed.

Relying on these two cases, Urie and Kubrick, the
Eleventh Circuit in White v. Mercury Marine, Div. of
Brunswick, Inc., 129 F.3d 1428, 1434 (1997), noted that
“twice the Supreme Court has been presented with federal
statute of limitations language materially identical to that in
the general maritime statute of limitations, and twice the
Supreme Court has held that courts should use the discovery
rule to determine when a cause of action accrues.”

The central question before us today is the one left open
by Moragne: When does a wrongful death claim accrue in a
maritime case? The issue for us is whether the date of claim
10 DEEM V. THE WILLIAM POWELL CO.

accrual on Sherri Deem’s wrongful death claim occurred on
the date that her deceased husband learned of his
mesothelioma diagnosis, or accrued on the date of his death
or thereafter. The resolution of that issue will determine
whether Sherri Deem’s wrongful death claim is time-barred
by the three-year statute of limitations, or whether her claim
is still alive and should be considered by the district court.

As a general rule, claims accrue when all elements of the
claim, including damages, have occurred. “A cause of action
accrues when the right to bring a claim in court arises, that
is when a wrong has been discovered, or a person’s rights
have been violated.” 5 Cyc. of Federal Proc. § 15:465 (3d
ed.); see also In re Swine Flu Prod. Liab. Litig., 764 F.2d
637, 639 (9th Cir. 1985); Johnston v. United States, 85 F.3d
217, 221 (5th Cir. 1996).

Based on the Supreme Court’s reasoning in Urie and
Kubrick applying a “discovery rule,” we have no doubt that
a discovery rule should be applicable here in assessing when
plaintiff Sherri Deem was aware of the injury for which she
made a wrongful death claim, and its causes. The problem
we are faced with here is determining the injury that Sherri
Deem needed to discover for her claim to accrue.

When an injured seaman makes an individual claim for
damages caused by a wrongful act, whether that claim is
presented as an individual claim by the seaman while alive
or is presented as a survival claim after death for the benefit
of the seaman’s family, the relevant damages are those of the
seaman, and if other elements are present, it makes good
sense to say that the seaman’s claim accrues when the
seaman discovers or should have discovered the injury.

In sharp contrast, however, when a seaman dies and a
wrongful death claim is made for the benefit of the seaman’s
 DEEM V. THE WILLIAM POWELL CO. 11

family, the plaintiff is different, and the relevant injury is not
to the seaman but to the seaman’s family members who are
deprived of the benefit of the seaman’s presence because of
the death. Those damages to the family members can only
occur on or after the death of the seaman. Where the cause
of the seaman’s death is known, the wrongful death claim
should normally accrue at the time of the death or shortly
thereafter. But, when the cause of death is not known at the
time of death, the wrongful death claim should accrue when
that cause of death is known or reasonably should have been
discovered. The district court in its order of January 9, 2020,
held that:

Deem had three years from the date she was
aware of the injury to her husband, Thomas
Deem, to file suit. She failed to do so.
Therefore, her claims . . . are time-barred.

The District Court here was applying a discovery rule but
erred as a matter of law by concluding that she had to
discover only the illness of mesothelioma that had afflicted
her deceased husband. To the contrary, in this wrongful
death suit, the injury to Sherri Deem was the loss of her
husband’s presence as a result of death, and that injury could
not have been discovered before he had passed away.

This commonsense conclusion necessarily follows from
the holding of the Supreme Court in Moragne explaining
that there are distinct claims for personal injury, on the one
hand, and for wrongful death, on the other. In the latter case,
the harm suffered is to the relatives of the decedent, not to
the decedent himself. One cannot discover the harms from
a wrongful death until the death itself has occurred.

That conclusion is reinforced by the broad discretion
given to the federal courts in maritime and admiralty cases,
12 DEEM V. THE WILLIAM POWELL CO.

to act as common law courts. As the Supreme Court has
stated: “By granting federal courts jurisdiction over
maritime and admiralty cases, the Constitution implicitly
directs federal courts sitting in admiralty to proceed ‘in the
manner of a common law court.’” The Dutra Grp. v.
Batterton, 139 S. Ct. 2275, 2278 (2019) (quoting Exxon
Shipping Co. v. Baker, 554 U.S. 471, 489–490 (2008)).
Historically, this meant that “where Congress ha[d] not
prescribed specific rules, federal courts [had to] develop the
amalgam of traditional common-law rules, modifications of
those rules, and newly created rules that form[] the general
maritime law.” The Dutra Group, 139 S. Ct. at 2278
(internal quotation omitted). We have started above by
recognizing the controlling Supreme Court decision in
Moragne, giving a right in admiralty to make a wrongful
death claim and explaining that wrongful death claims differ
from personal injury claims because different people are
damaged. The seaman’s damage supports a personal injury
claim, but it is the family’s damage upon death that supports
a wrongful death claim.

Our conclusion is also reinforced by pertinent precedent
in other circuits examining claim accrual on wrongful death
claims arising in varied contexts:

• In Miller v. Philadelphia Geriatric Ctr., 463 F.3d
266, 272 (3d Cir. 2006), the Third Circuit considered
the accrual of a wrongful death claim under the
Federal Torts Claims Act (FTCA). When the Third
Circuit issued its ruling, it “join[ed] those circuits
that have concluded, albeit under a wide variety of
factual scenarios, that wrongful death claims, for
FTCA purposes, cannot accrue prior to death.” Id. In
Miller, the Third Circuit held that since the decedent
died within two years of the date of the wrongful
 DEEM V. THE WILLIAM POWELL CO. 13

death action, the claims were timely. Id. The Court’s
analysis was not focused on the date of the
underlying injury that had caused the death for the
purposes of the accrual of the wrongful death claim.
Importantly, the Miller court noted that while state
law did govern the wrongful death claim, the accrual
was a question of federal law. Id.; see also Miller v.
United States, 932 F.2d 301, 303 (4th Cir. 1991)
(“State law determines whether there is an
underlying cause of action; but federal law defines
the limitations period and determines when that
cause of action accrued.”).

• In Chomic v. United States, 377 F.3d 607, 616 (6th
Cir. 2004), the Sixth Circuit held that “where state
law provides a derivative, rather than an
independent, cause of action for wrongful death, and
where the underlying cause of action sounds in
negligence or medical malpractice, a claim for
wrongful death under the FTCA accrues on the date
when both an injury and its cause are known.”

• In Fisk v. United States, 657 F.2d 167, 171 (7th Cir.
1981), the Seventh Circuit held that since the accrual
date for wrongful death claims brought under the
FTCA is determined by federal law, “when a state
statute creates an independent cause of action for
wrongful death, it cannot accrue for FTCA purposes
until the date of the death which gives rise to the
action.” The court in Fisk held “that the [] action
[wa]s not barred by the failure to have brought a
claim within two years of accrual of the decedent’s
personal injury claim, but rather that the federal rule
in wrongful death actions brought under the Federal
14 DEEM V. THE WILLIAM POWELL CO.

Tort Claims Act is that the cause of action cannot
accrue until the wrongful death occurs.” Id. at 173.

• In Spiller, the Eighth Circuit, analyzing the DOHSA
and the statutes of Arkansas, was tasked with:
(1) determining whether a decedent’s beneficiaries
possessed a right of action in an admiralty suit for
wrongful death; and (2) determining whether the
right of action for pain and suffering survive the
decedent. Spiller v. Thomas M. Lowe, Jr., & Assocs.,
Inc., 466 F.2d 903, 904 (8th Cir. 1972). The Eighth
Circuit held “that the federal maritime law allows
recovery for wrongful death to those parents and
children . . . who are found to have sustained a
pecuniary loss.” Id. at 910. In reaching its holding,
the Eighth Circuit explicitly stated “that Moragne
provides the foundation for recognizing the federal
right that an action for pain and suffering survives the
death of the injured party.” Id. at 911.

• The Ninth Circuit has also considered wrongful
death claim accrual after Moragne. In In re Swine
Flu it held that there is general agreement that a
medical malpractice claim does not accrue under the
FTCA until the plaintiff discovers, or reasonably
should have discovered, his injury and its causes,
citing cases, but that the Circuits are, however, split
on whether the medical malpractice discovery rule
should be extended to wrongful death claims under
the FTCA. The circuits were split as to whether in a
wrongful death claim under the FTCA, there was
claim accrual upon death or claim accrual only after
discovery of the injury and its cause. The Johnston
case said that the Ninth Circuit had applied a
discovery rule, but that discovery rule was only
 DEEM V. THE WILLIAM POWELL CO. 15

applied to extend the date of accrual of claim beyond
death, and not to pretermit a claim before death.

• The Eleventh Circuit in White held that a cause of
action accrues for purposes of the general maritime
statute of limitations when plaintiff knew or should
have known of his injury and its cause. 129 F.3d
at 1434. The court stressed that Congress passed the
general maritime statute of limitations using the
word “accrue” in 1980 after both Urie and Kubrick
had been decided by the Supreme Court, and
Congress continued to use the word “accrue” with no
indication of disagreement with how it had been
interpreted in those cases.

Federal law supports the proposition that accrual of a
wrongful death claim occurs on the date of death, not the
date of the seaman’s prior injury, or on a date beyond death
when the cause of death is discovered. We join our sister
circuits on the Third, Fifth, Sixth and Seventh Circuits in
holding that federal law determines when a wrongful death
claim accrues, and that a wrongful death claim does not
accrue before the time of death. See Miller, 463 F.3d at 272
n.5 (“[I]f the survivors can bring a wrongful death claim, the
statute of limitations begins to run on the date they sustain
the pecuniary loss, i.e., the date of the decedent’s death.”);
Kington v. United States, 396 F.2d 9, 12 (6th Cir. 1968)
(“Traditionally an action for wrongful death accrues upon
the date of death.”); Fisk, 657 F.2d at 171 (“[W]hen a state
statute creates an independent cause of action for wrongful
death, it cannot accrue for FTCA purposes until the date of
the death which gives rise to the action.”).

In determining whether 46 U.S.C. § 30106 bars Sherri
Deem’s claim, we look to the “circumstances surrounding
the enactment as well as the object to be accomplished by
16 DEEM V. THE WILLIAM POWELL CO.

it.” Bedoni v. Navajo-Hopi Indian Relocation Com.,
878 F.2d 1119, 1120 (9th Cir. 1989). Sherri Deem’s
wrongful death action originates from the Death on the High
Seas Act (“DOHSA”) codified at 46 U.S.C. § 30301 et seq.
The DOHSA was the result of a pronounced shift towards
the preservation of claims by deceased seamen as described
in Moragne. 398 U.S. at 409 (“We accordingly overrule The
Harrisburg, [and] hold that an action does lie under general
maritime law for death caused by violation of maritime
duties.”).

Prior to Moragne, the key precedential decision on
wrongful death claims was The Harrisburg, 119 U.S. 199
(1886), which held that there was no basis in admiralty law
for a wrongful death action, which could only be considered
if authorized by state statutory or decisional law. The
holding in The Harrisburg was re-examined in Moragne in
1970, 398 U.S. at 376, when the Court considered whether
The Harrisburg “should any longer be regarded as
acceptable law.” Id. It is striking that when faced with the
identical question nearly 84 years after The Harrisburg had
decided it, in Moragne, the Supreme Court explained that
“the work of the legislatures has made the allowance of
recovery for wrongful death the general rule of American
law, and its denial the exception.” Id. at 393. “Where death
is caused by the breach of a duty imposed by federal
maritime law, Congress has established a policy favoring
recovery in the absence of a legislative direction to except a
particular class of cases.” Id. Thus, Moragne became the
leading case in this area of the law governing wrongful death
actions, and it in turn sparked pertinent legislative actions.

Thereafter, wrongful death causes of action for those
harmed by wrongful acts at sea were codified. 46 U.S.C.
 DEEM V. THE WILLIAM POWELL CO. 17

§ 30302. 2 As originally enacted in 1920, the statute limited
the time within which a person could bring a wrongful death
claim to two years. It was not until Section 30106 was
enacted that Congress decided to create uniformity among
the varied statutes of limitation by establishing a uniform
three-year limitations period generally governing maritime
torts. See Pub. L. No. 96-382, § 2, 94 Stat. 1525 (1980).

It is axiomatic that an individual must satisfy certain
conditions before bringing a claim. If all the elements of a
claim are not met, the claim necessarily fails. In our view,
by definition, a wrongful death claim cannot arise before the
necessary condition precedent of the wrongful death occurs.
Until Thomas Deem had passed away, his spouse Sherri
Deem could not bring a wrongful death lawsuit. The harms
to Thomas Deem from mesothelioma, and the harm to his
wife Sherri Deem caused by his demise, are distinct and give
rise to two separate claims. This framework was endorsed
by the reasoning of the Supreme Court in Moragne. There,
when comparing wrongful death and personal injury actions,
the Court explained that “the harms to be assuaged are not
identical in the two cases: in the case of mere injury, the
person physically harmed is made whole for his harm, while
in the case of death, those closest to him—usually spouse
and children—seek to recover for their total loss of one on
whom they depended.” Moragne, 398 U.S. at 382. “This
difference, however, even when coupled with the practical
difficulties of defining the class of beneficiaries who may
recover for death, does not seem to account for the law’s

2
“When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond 3 nautical miles
from the shore of the United States, the personal representative of the
decedent may bring a civil action in admiralty against the person or
vessel responsible.” 46 U.S.C. § 30302.
18 DEEM V. THE WILLIAM POWELL CO.

refusal to recognize a wrongful killing as an actionable tort.”
Id. Thus, Moragne’s disagreement with The Harrisburg’s
refusal to recognize a wrongful death action, and Moragne’s
reasoning underlying its conclusion, together give a clear
signal that Sherri Deem has a right to bring a wrongful death
action after her husband’s death. Equally important, the
Supreme Court’s holding in Moragne compels the
conclusion that the wrongful death and personal or survival
claims exist as two separate claims with two different
accrual dates, contrary to the district court’s reasoning that
those claims, because related, accrued at the same time, that
is, upon discovery of the illness.

There is a clear and logical distinction between wrongful
death and personal injury claims under maritime law. To
preserve a decedent’s personal injury claims that they filed
while alive, the decedent’s representative can take the
decedent’s place as the plaintiff of the personal injury action
even after the person is dead so long as the personal injury
claim was filed within the three years of the statute of
limitations. Under 46 U.S.C. § 30305 the personal injury
cause of action is for the benefit of the deceased.

Conversely, “[w]hen the death of an individual is caused
by wrongful act, neglect, or default occurring on the high
seas beyond 3 nautical miles from the shore of the United
States, the personal representative of the decedent may bring
a civil action in admiralty against the person or vessel
responsible.” 46 U.S.C. § 30302. “The action shall be for
the exclusive benefit of the decedent’s spouse, parent, child,
or dependent relative.” Id. The differences between a
representative action for the injured seamen, which becomes
a survival action on death, and a wrongful death action for
the seaman’s surviving family members, was clearly
explained by the Third Circuit in its decision in Calhoun v.
 DEEM V. THE WILLIAM POWELL CO. 19

Yamaha Motor Corp., U.S.A., 40 F.3d 622 (3rd Cir. 1994),
where it stated:

Throughout the previous discussion of the
case law, reference has been made to
wrongful death actions and to survival
actions. Although they are often lumped
together without any distinction, see
Wahlstrom v. Kawasaki Heavy Indus., Ltd.,
4 F.3d 1084, 1093 (2d Cir.1993) (where
plaintiffs treated as a single action a claim for
“wrongful death and survivorship benefits”),
they are, in fact, quite distinct. See, e.g.,
Gaudet, 414 U.S. at 575 n. 2 (distinguishing
wrongful death statutes from survival
statutes).

A wrongful death cause of action belongs to
the decedent’s dependents (or closest kin in
the case of the death of a minor). It allows the
beneficiaries to recover for the harm that they
personally suffered as a result of the death,
and it is totally independent of any cause of
action the decedent may have had for his or
her own personal injuries. Damages are
determined by what the beneficiaries would
have “received” from the decedent and can
include recovery for pecuniary losses like
lost monetary support, and for non-pecuniary
losses like loss of society. 2 Benedict on
Admiralty § 81(a), at 7–2. A survival action,
in contrast, belongs to the estate of the
deceased (although it is usually brought by
the deceased’s relatives acting in a
representative capacity) and allows recovery
20 DEEM V. THE WILLIAM POWELL CO.

for the injury to the deceased from the action
causing death. Under a survival action, the
decedent's representative recovers for the
decedent’s pain and suffering, medical
expenses, lost earnings (both past and future),
and funeral expenses. Id.

Congress has made a clear differentiation between the
personal injury claims of a decedent and the wrongful death
claims for the benefit of the decedent’s relatives, dependents,
and kin.

To hold as Appellees urge us, that the statute of
limitations began to accrue on the date that Thomas Deem
learned of his injury of mesothelioma flies in the face of the
clear Supreme Court’s guidance in Moragne.

Consider a hypothetical case like this one, but where an
illness from mesothelioma lingered on for more than three
years after diagnosis but before death. In that hypothetical
case, if one credited defendants’ argument that there was
discovery of injury from mesothelioma when illness was
discovered, then any recovery for wrongful death would
have been extinguished before the death even occurred. That
result could not be reconciled with the Supreme Court’s
holding and reasoning in Moragne, that the maritime law
permits a claim for wrongful death for benefit of surviving
family, distinct from the claim of the seaman for personal
injury. Thus, we hold that the text of 40 U.S.C. § 30106
requires two separate accrual dates for the two separate
claims. We hold that the uniform maritime three-year statute
of limitations on a wrongful death claim begins to accrue on
the date of the fulfillment of the condition precedent to
bringing the wrongful death claim, i.e., a decedent’s death.
 DEEM V. THE WILLIAM POWELL CO. 21

Where the cause of death is known at time of death, suit for
wrongful death can be brought for three years thereafter. 3

We reverse and remand to the district court for its
reconsideration of Sherri Deem’s claims in light of our
holding that the statute of limitations for her claim began to
accrue on the date of Thomas Deem’s alleged wrongful
death, and not before that death. We do not reach issues of
causation, that is, whether products containing asbestos were
a substantial cause of decedent’s death, which should be
considered on remand by the district court in the first
instance. Nor do we decide the scope of any wrongful death
action to which Sherri Deem may be entitled.

REVERSED AND REMANDED.

3
We have no occasion in this case to assess whether a need for a
discovery rule can extend the date of claim accrual beyond date of death.
See In re Swine Flu Prods. Liab. Litig., 764 F.2d at 640. It is enough to
hold that discovery of a related illness cannot pretermit a wrongful death
claim under maritime law after three years because only a death can
spark accrual of a wrongful death claim.