Looney v. Bolt

David Newbern, Justice,

dissenting. Sybil Looney filed her complaint more than two years from the date on which the appellees allegedly caused Carol Chamberlain’s medical injury but within three years of Ms. Chamberlain’s death. In the fall of 1991, when Ms. Looney’s cause of action accrued, her claim for wrongful death was subject to the three-year statute of limitations contained in the Wrongful Death Act, Ark. Code Ann. § 16-62-102(c)(Supp. 1995). Prior to the accrual of Ms. Looney’s cause of action, we had held in Brown v. St. Paul Mercury Ins. Co., 292 Ark. 558, 732 S.W.2d 130 (1987)(“ Brown F’), that the three-year statute governed claims .for wrongful death resulting from medical injury and that such claims did not have to be filed within the two-year statute contained in the Medical Malpractice Act, Ark. Code Ann. § 16-114-203 (Supp. 1995). We said the Medical Malpractice Act’s two-year statute was “irrelevant” to wrongful-death claims, and we reached this conclusion even though the Medical Malpractice Act provided that it applied to “all causes of action for medical injury occurring after April 2, 1979, and, as to such causes of action, shall supersede any inconsistent provision of law.” Ark. Code An. § 16-114-202.

Between the time of our decision in Brown I and the accrual of Ms. Looney’s cause of action, we never questioned our holding that the three-year statute of limitations governed actions for wrongful death resulting from medical injury. The three-year statute was clearly in effect in the fall of 1991 when Ms. Looney’s action accrued, and Ms. Looney complied with the statute by filing her complaint on December 2, 1993.

Although it is undisputed that Ms. Looney filed her claim in accordance with the law as it existed when her cause of action arose, the majority believes the claim was properly dismissed as untimely because it was filed more than two years from the date on which the appellees allegedly caused Ms. Chamberlain’s medical injury. The Court in Brown I had held that the two-year statute was not applicable to the type of claim filed by Ms. Looney, and Brown I was the controlling law at the time Ms. Looney’s claim arose. However, according to the majority, foEowing our decision in Brown I, we rendered three decisions after Ms. Looney’s cause of action had accrued but before her complaint was fEed that repudiated Brown I and established the applicabEity of the two-year statute to claims for wrongful death resulting from a medical injury. In the wake of these decisions, the majority says, Brown I stood “as though it had never been,” and it was therefore unreasonable for Ms. Looney to rely on that case in waiting more than two years from the date of Ms. Chamberlain’s surgery to fEe suit against the appeEees.

The majority’s reasoning is flawed in several respects. First, the majority errs by suggesting that the statute of limitations in effect when Ms. Looney’s claim was filed on December 2, 1993, is controEing. As many jurisdictions have recognized, “ [t]he statute of Emitation in effect when a cause of action accrues governs the time within which a civil action must be commenced.” Rauschenberger v. Radetsky, 745 P.2d 640, 642 (Colo. 1987). See also Chase v. Sabin, 516 N.W.2d 60, 61 n.2 (Mich. 1994) (“The pertinent statute of limitations is the one in effect when the plaintiff s cause of action arose.”), citing Winfrey v. Farhat, 170 N.W.2d 34 (Mich. 1969). See Matter of Estate of Weidman, 476 N.W.2d 357, 364 (Iowa 1991); Department of Health & Welfare v. Engelbert, 753 P.2d 825, 826 (Idaho 1988); Cavanaugh v. Abbot Laboratories, 496 A.2d 154, 158 (Vt. 1985); Dade County v. Rohr Industries, Inc., 826 F.2d 983, 989 (11th Cir. 1987); Canadian Indent. Co. v. K & T, Inc., 745 F. Supp. 661, 663 (D.Utah 1990); Cooper v. Summer, 672 F. Supp. 1361, 1364-65 (D.Nev. 1987). As mentioned, the statute of limitations in effect when Ms. Looney’s wrongful-death action accrued was the three-year statute contained in the Wrongful Death Act. Ms. Looney complied with that statute, and it is irrelevant whether her claim was timely under any conflicting limitations provision in effect on December 2, 1993.

The majority suggests that Baker v. Milam, 321 Ark. 234, 900 S.W.2d 209 (1995), supports the application of the statute of limitations in effect when Ms. Looney filed her complaint on December 2, 1993. In the Baker case, the issue was whether the Trial Court was correct to apply retroactively our decisions in Weidrick v. Arnold, 310 Ark. 138, 835 S.W.2d 843 (1992), and Thompson v. Dunn, 319 Ark. 6, 889 S.W.2d 31 (1994), which, respectively, invalidated the notice and 90-day-extension provisions contained in Ark. Code Ann. § 16-114-204 (1987). As the majority observes, the Weidrick case had been decided at the time Ms. Baker filed her complaint. Ms. Baker asserted that Weidrick and Thompson should not have been applied retroactively to bar her claim because her cause of action had accrued prior to the date of these decisions.

With very little discussion, we rejected Ms. Baker’s argument and upheld the retroactive application of Weidrick and Thompson to her claim. We noted that those cases “had been decided when the trial court entered its decision in this case,” we referred to a supposed “long-standing practice of applying our decisions retrospectively,” and we said that Ms. Baker had not demonstrated any “justifiable reliance” on an “old rule of law.” Baker v. Milam, 321 Ark. at 238, 900 S.W.2d at 211. We further intimated that, in other cases, we had applied the Weidrick case to actions that had accrued prior to the date of that decision. We emphasized that the Trial Court had “correctly applied the decisional law of this court as it existed when it decided appellant’s case.” Id.

It was wrong for us to suggest that the Trial Court’s retroactive application of Weidrick and Thompson was correct simply because those cases were in effect at the time the Trial Court rendered its decision. Although the Weidrick case was on the books when Ms. Baker filed her claim, we did not adopt a clear rule that the statute of limitations in effect at the time a complaint is filed, rather than the statute in effect when the cause of action accrues, is controlling. If the Baker decision is to be so interpreted, it should be unceremoniously and immediately overruled.

The majority suggests that the Baker case “relied on the principle that this court has long held that a decision of this court, when overruled, stands as though it had never been.” Although we did not refer to this “principle” in the Baker case, we have recited it in other cases, often in conjunction with a statement that our “long-standing practice” is to apply our decisions retroactively. We do, of course, apply our decisions retroactively when they are declarations of what the law has always been rather than decisions that overrule or change the law. One need only review our most recent decisions to see that, when our decisions establish new rules of law, we apply them prospectively only. See, e.g., Union Pacific R.R. Co. v. Sharp, 330 Ark. 174, 952 S.W.2d 658 (1997); Shannon v. Wilson, 329 Ark. 143, 947 S.W.2d 349 (1997); Wiles v. Webb, 329 Ark. 108, 946 S.W.2d 685 (1997).

We have “acknowledged the need, when overruling prior case law, to recognize the validity of actions taken in faith upon old decisions while stating the rules to be followed in the future.” Wiles v. Wiles, 289 Ark. 340, 342, 711 S.W.2d 789, 791 (1986). Clearly, where a party has demonstrated reliance on an overruled case, we have not treated the case as if it never existed. See also Crisco v. Murdock Acceptance Corp., 222 Ark. 127, 136, 258 S.W.2d 551, 557 (1953)(“Even though such retroactive judicial pronouncements are permitted by the constitution, they are manifestly contrary to a sense of fair play.”)(supp. op. den. reh’g); Oliver v. State, 323 Ark. 743, 749, 918 S.W.2d 690, 692 (1996) (“We conclude that fairness dictates a prospective application of our holding. Oliver could justifiably have relied on the cases now overruled.”).

Our approach to this issue is, and should be, thus largely consistent with that of the United States Supreme Court as expressed in Chevron Oil v. Huson, 404 U.S. 97 (1971). A decision should be applied prospectively if, among other things, it establishes “a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed,” or if a retroactive application of the decision will “produce substantial inequitable results” or “injustice or hardship.” Id. at 106-07 (citations omitted). The majority shrugs off the Chevron Oil case, but we have followed it in at least two previous decisions. See, e.g., Pledger v. Bosnick, 306 Ark. 45, 811 S.W.2d 286 (1991); American Trucking Ass’ns, Inc. v. Gray, 295 Ark. 43, 746 S.W.2d 377 (1988).

In any event, the notion that “an overruled case is to be treated as if it never was the law” is clearly outmoded; the more modern view is that this principle should be rejected as a “myth.” Annotation, Prospective or Retroactive Operation of Overruling Decision, 10 A.L.R.3d 1371, 1383 (1966). See also Chevron Oil v. Huson, 404 U.S. at 107 (“We should not indulge in the fiction that the law now announced has always been the law and, therefore, that those who did not avail themselves of it waived their rights.”)(citation omitted).

The second flaw in the majority’s reasoning is its conclusion that three of our cases decided prior to the filing of Ms. Looney’s claim on December 2, 1993, overruled Brown I and established the applicability of the two-year statute over the three-year statute. Even if the majority is correct in its suggestion that the controlling statute of limitations is the one in effect when Ms. Looney filed her claim on December 2, 1993, it is clear that the law in effect at that time was still the three-year statute.

The majority contends that Bailey v. Rose Care Center, 307 Ark. 14, 817 S.W.2d 412 (1991); Brown v. St. Paul Mercury Ins. Co., 308 Ark. 361, 823 S.W.2d 908 (1992)(“Brown III); and Ruffins v. ER Arkansas, P.A., 313 Ark. 175, 853 S.W.2d 877 (1993), reversed Brown I and rendered applicable the two-year provision. These cases could not have had the effect attributed to them by the majority. The Bailey case overruled our holding in Brown I that the injury sustained by the deceased was a “medical injury” within the meaning of the Medical Malpractice Act, but it did not discuss, let alone disturb, our holding in Brown I that the three-year limitations provision applied to actions for wrongful death resulting from medical injury.

In Brown III, we again said that an action for wrongful death resulting from a medical injury was governed by neither the notice provision nor the two-year statute of limitations contained in the Medical Malpractice Act. We emphasized that, “[b]ecause this is a wrongful death action, compliance with the medical malpractice statutes ... is irrelevant.” Brown v. St. Paul Mercury Ins. Co., 308 Ark. at 363, 823 S.W.2d at 909. In a concurring opinion, Justice Glaze observed that the question of the Medical Malpractice Act’s applicability to actions for wrongful death resulting from a medical injury had not been “fully developed and argued in this appeal.” Id. at 364, 823 S.W.2d at 910 (Glaze, J., concurring). The concurring opinion cautioned attorneys to assume that the Medical Malpractice Act, and the notice provisions in particular, would in fact apply to such actions. The question, however, is whether Brown III overruled Brown I and established the applicability of the two-year statute. Whatever the efficacy of the “caveat” issued in the concurring opinion, the holding in Brown III unquestionably maintained the status quo established in Brown I and did nothing to suggest that the three-year statute was no longer applicable to actions for wrongful death resulting from a medical injury.

Likewise, nothing in the Ruffins case altered the rule established in Brown I that the three-year statute applied to the type of claim brought by Ms. Looney. To the extent that the Ruffiins case could be viewed as changing the applicable statute of limitations from the three-year provision to the two-year provision, under the Chevron Oil, Wiles, and Crisco cases, the decision should not be applied retroactively to bar Ms. Looney’s claim. The majority asserts that we have applied Ruffins retroactively in past cases. Even if that assertion is true, it provides no basis for applying the case retroactively here in view of the fact that our decisions in the cases cited by the majority do not reflect that the plaintiffs urged a prospective-only application of the case.

If the controlling statute of limitations were the one in effect at the time a claim is filed, here is what could happen. A claimant whose claim arises when a three-year statute of limitations is in effect thinks she has three years within which to file it. She may wish to delay filing her complaint for' a variety of reasons, for example, to allow time to ascertain the extent of her injury. More than two years after the claim arose, the General Assembly by statute, or this Court by decision, changes the law to say a two-year limitation applies. The claim is barred. Nothing could be more unfair, and that is why the other jurisdictions cited above hold that the limitations period in effect at the time the claim arose applies. The only fair rule is simply this —• if a decision changes the law it should be applied prospectively; if not, it should be applied retroactively.

The Court will likely remain divided on the issue of whether the two-year statute or the three-year statute should apply to actions for wrongful death resulting from medical injury. Despite the division on that issue, we should all agree, at the very least, that the timeliness of a plaintiff s cause of action should be determined with reference to the law as it existed when the cause of action accrued. We should not penalize Ms. Looney for changes in the law that she could not have foreseen. Because Ms. Looney complied with the law existing when her cause of action arose, as well as the law existing when her claim was filed, we should allow her to pursue her claim.

I respectfully dissent.

Thornton, J., joins in this dissent.