Collins v. Sotka

Francis E. Sweeney, Sr., J.

In the context of a -wrongful death action, we are asked to determine when the two-year statute of limitations begins to run. In answering this question, we must decide whether the statute of limitations runs from the date of death of the victim, or whether the discovery rule can be used to extend the statutory period in which to commence such an action. For the reasons that follow, we hold that the discovery rule is applicable.

Ordinarily, a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed. Kunz v. Buckeye Union Ins. Co. (1982), 1 Ohio St.3d 79, 1 OBR 117, 437 N.E.2d 1194. However, under the discovery rule, which is an exception to the general rule, a cause of action accrues when the plaintiff discovers, or in the exercise of reasonable care should have discovered, that he or she was injured by the wrongful conduct of the defendant. O’Stricker v. Jim Walter Corp. (1983), 4 Ohio St.3d 84, 4 OBR 335, 447 N.E.2d 727; Oliver v. Kaiser Community Health Found. (1983), 5 Ohio St.3d 111, 5 OBR 247, 449 N.E.2d 438, syllabus. In essence, the running of the limitations period is *508delayed until triggered by a “cognizable event” that alerts the plaintiff that he or she was injured hy the defendant. See, e.g., Zimmie v. Calfee, Halter & Griswold (1989), 43 Ohio St.3d 54, 538 N.E.2d 398 (where the cognizable event in a legal malpractice case was the event that should have alerted a reasonable person that a questionable legal practice may have occurred).

In deciding whether the discovery rule can be used to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim, it is necessary to revisit our decision in Shover v. Cordis Corp., which appellee asserts directly supports her position, and which the lower courts relied upon in dismissing appellant’s cause of action.

In Shover, the decedent’s deáth was caused by a defective pacemaker. It was not until about four years after her death (and beyond the two-year statute of limitations) that decedent’s son learned through a newspaper article that the pacemaker manufacturer had pled guilty to charges of concealing the pacemaker’s defects. Less than five months after learning this fact, the son filed a products liability and wrongful death action against the manufacturer. The trial court dismissed the complaint on the ground that the wrongful death claim had not been brought within two years from the date of the decedent’s death. The court of appeals affirmed.

In a four-to-three decision, this court likewise affirmed the trial court’s dismissal of the case and held that “[njeither fraud nor the discovery rule can toll R.C. 2125.02(D), Ohio’s statute setting forth the time within which to commence wrongful death actions.” Id. at syllabus. In refusing to apply the discovery rule, we focused on the fact that a wrongful death claim is based upon the death of a person and is a special statutory action created by the General Assembly. We strictly construed the statutory language of R.C. 2125.02(D) (now R.C. 2125.02[D][1]), which states that “[a]n action for wrongful death shall be commenced within two years after the decedent’s death,” and held that the discovery rule is inapplicable, since the legislature did not engraft tolling language.into the wrongful death statute.

We further reasoned that the discovery rule has traditionally been limited to malpractice actions, which we said differ from wrongful death claims. With respect to malpractice claims, we reasoned that the injury may not be discovered immediately, whereas in wrongful death actions, the death of the person, which is the basic element of a wrongful death action, is a known factor, allowing the survivors to proceed on the decedent’s behalf without delay. Id., 61 Ohio St.3d at 218, 574 N.E.2d at 461. Based upon these reasons, we concluded that the General Assembly “intended that wrongful death actions be brought within two years regardless of the date of discovery of the cause of death.” Id. at 215, 574 N.E.2d at 459.

*509In reexamining this issue, we find that our analysis in Shover is flawed. To begin with, we incorrectly focused on the statutory language of the wrongful death statute and ignored the many policy considerations that have supported our application of the discovery rule in a variety of contexts.

A wrongful death claim is not triggered merely by the death of a person, but by “the death of a person * * * caused by wrongful act.” (Emphasis added.) R.C. 2125.01(A)(1); see, also, Shover v. Cordis Corp., 61 Ohio St.3d at 220-221, 574 N.E.2d at 463, construing former R.C. 2125.01 (A. William Sweeney, J., dissenting). Therefore, in order for a wrongful death case to be brought, the death must be wrongful. The fact that a body was discovered and/or that a death took place is irrelevant unless there is proof that a defendant was at fault and caused the death. Death, in and of itself, does not trigger the running of the statute of limitations in a wrongful death case stemming from a murder.

Furthermore, we were incorrect in Shover when we stated that the discovery rule was traditionally limited to malpractice claims and when we noted that, with respect to a wrongful death claim, the injury manifests itself upon the death of the person. Although the discovery rule was initially applied in the context of medical malpractice (Melnyk v. Cleveland Clinic [1972], 32 Ohio St.2d 198, 61 O.O.2d 430, 290 N.E.2d 916; Oliver v. Kaiser Community Health Found.), it has not been limited solely to that area. Instead, it has been applied in several other situations. See Cincinnati Gas & Elec. Co. v. Gen. Elec. Co. (S.D.Ohio 1986), 656 F.Supp. 49, 74 (fraud); Burr v. Stark Cty. Bd. of Commrs. (1986), 23 Ohio St.3d 69, 23 OBR 200, 491 N.E.2d 1101 (adoption); Skidmore & Hall v. Rottman (1983), 5 Ohio St.3d 210, 5 OBR 453, 450 N.E.2d 684 (legal malpractice); Liddell v. SCA Services of Ohio (1994), 70 Ohio St.3d 6, 635 N.E.2d 1233 (negligent exposure to toxic gas); Ault v. Jasko (1994), 70 Ohio St.3d 114, 637 N.E.2d 870 (sexual abuse); NCR Corp. v. U.S. Mineral Products Co. (1995), 72 Ohio St.3d 269, 649 N.E.2d 175 (asbestos removal).

In each of these cases in which we invoked the discovery rule, we found that the injury complained of did not manifest itself immediately. Therefore, rather than adhere to the rigid application of a particular statute of limitations, we liberally interpreted the time of accrual of the cause of action until the plaintiff knew, or by the exercise of reasonable diligence should have known, that he or she had been injured by the conduct of the defendant. Ault, 70 Ohio St.3d at 115-116, 637 N.E.2d at 871. We reasoned that “statutes of limitations should not bar claimants before they have a reasonable basis for believing they have a claim.” NCR Corp. v. U.S. Mineral Products Co., 72 Ohio St.3d at 271, 649 N.E.2d at 177. In other words, we used the discovery rule “ ‘where the application of the general rule that a cause of action exists from the time the negligent act was committed would lead to the unconscionable result that the *510injured party’s right to recovery can be barred by the statute of limitations before he is even aware of its existence.’ ” Oliver v. Kaiser Community Health Found., 5 Ohio St.3d at 113, 5 OBR at 249, 449 N.E.2d at 440.

Thus, the discovery rule was adopted to prevent inequities that occur when a statute of limitations is rigidly followed. Such inequities exist in a wrongful death action where the victim’s survivors are not immediately aware that a wrongful death has occurred. Under these circumstances, if accrual occurs from the date of death, the survivors may not be given the benefit of the two full years in which to bring a suit or may be left without any remedy at law.1

For instance, often, with a murder, law enforcement officials may easily discover that a murder has taken place. There may also be positive identification of the victim soon after the crime was committed. However, the crime may remain unresolved until well after the victim was killed and beyond two years after the victim’s death. Under those circumstances, if the crime is not solved within two years from the date of death, then the survivors cannot pursue a wrongful death claim. Or, as was the case here, if death is the triggering event, then the two-year statute of limitations may begin to run even before the victim’s family has learned the awful truth about their loved one. In this situation, under our holding in Shover, a person pursuing a wrongful death claim would not be given the full two years to commence an action.

It is illogical to penalize the victim’s survivors, who have already suffered a great loss, by shortening or extinguishing the time in which they may bring a wrongful death lawsuit. To do so merely rewards the criminal defendant. Although the defendant may be held accountable in a criminal court for the horrendous crime he committed, he can nonetheless escape civil liability, all at the expense of the victim’s family, and simply because of the harsh application of a statute of limitations.

In his dissent in Shover, 61 Ohio St.3d at 233, 574 N.E.2d at 471, Justice Douglas correctly pointed out the unfairness of holding that a statute of limitations accrues from the date of death, when he stated:

“If * * * a wrongful death action stems solely from the wrongful death statute, then if the General Assembly decided to repeal Ohio’s wrongful death statute, any tortfeasor who negligently injured another would need only be sure that his or her victim was dead in order for the tortfeasor to be absolved from civil liability. If Ohio’s wrongful death statute remains in effect and is interpreted in the *511fashion that the majority today interprets R.C. 2125.02(D), a tortfeasor need only kill his or her victim and fraudulently conceal the cause of death for two years to be absolved from civil liability.”

We are unwilling to further condone such a ludicrous result. Since we find that our decision in Shover is inherently flawed and runs contrary to the dictates of logic and fairness, we now overrule it with today’s decision. Accordingly, we hold that the discovery rule applies to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim. In a wrongful death action that stems from a murder, the statute of limitations begins to run when the victim’s survivors discover, or through the exercise of reasonable diligence, should have discovered, that the defendant has been convicted and sentenced for the murder.

In this case, Sotka was sentenced for the murder of Angel Ormston in an order dated February 10, 1993. The two-year statute of limitations accrued on this date, giving appellant until February 10, 1995 in which to file his cause of action for wrongful death. Since a complaint was filed on February 6, 1995, we find that it was filed within the statute of limitations. Accordingly, we reverse the judgment of the court of appeals and remand the matter to the trial court for further proceedings consistent with this opinion.

Judgment reversed and cause remanded.

Douglas, Resnick and Pfeifer, JJ., concur. Douglas, J., concurs separately. Moyer, C.J., and Cook, J., dissent. Lundberg Stratton, J., dissents.

. Appellant also argues that the wrongful death statute violates the open courts provision of the Ohio Constitution. However, since we are applying the discovery rule to a wrongful death action, appellant may proceed with his cause of action and is not without a remedy. Therefore, this issue need not be discussed.