NO. 91-283
IN THE SUPREME COURT OF THE STATE OF MONTANA
1992
EDITH ISABELLA CARROLL, Wife
of CHARLES ELMER CARROLL, Deceased,
and Personal Representative
of the Estate of Charles Elmer Carroll,
Plaintiff and Respondent,
-VS-
W. R. GRACE & COMPANY,
Defendant and Appellant.
ORIGINAL PROCEEDING
COUNSEL O F RECORD:
For Respondent:
Tom L. Lewis; Regnier, Lewis & Boland, Great Falls,
Montana
Thomas A. Baiz, Jr., Baiz Law Office, Great Falls,
Montana.
For Appellant:
Gary L. Graham and Maureen H. Lennon; Garlington,
Lohn & Robinson, Missoula, Montana.
Submitted: December 2, 1991
Decided: January 14, 1992
Filed:
Justice Karla M. Gray delivered the Opinion of the Court.
This case is before us on certified questions from the Ninth
Circuit Court of Appeals concerning the point at which a Montana
wrongful death action accrues. We accepted certification pursuant
to Rule 44 of the M.R.App.P.
Appellant (and defendant), W.R. Grace and Company, claims that
the action accrues at the date of injury. Respondent (and
plaintiff), Edith Carroll, claims that a wrongful death action
accrues at the death of the injured person. We conclude that a
wrongful death action does not accrue until the death of the
injured person.
Charles Carroll (decedent) was employed by W.R. Grace and
Company (Grace) at its vermiculite mine located in Libby, Montana,
from 1958 until 1976; he underwent yearly chest x-rays provided by
Grace from 1967 until 1976. Decedent retired in 1976, but
continued to seek medical help regarding shortness of breath and a
heart condition.
Mr. Carroll died in 1989, thirteen years after retirement.
His autopsy report listed the cause of death as "severe
interstitial fibrosis with pulmonary failure, apparently due to
'asbestosis.'" Decedent's medical records show that he had been
diagnosed as suffering from asbestosis as early as 1972.
Edith Carroll, wife of decedent, filed a survival claim and a
wrongful death claim against Grace, her husband's former employer,
asserting that her husband's asbestosis was related to his
employment at Grace's mine. She contends that she did not know
2
his death was related to his employment until she read the autopsy
report. She filed her suit as a diversity action in the United
States District Court within two months of her husband's death.
Grace moved for summary judgment based on the running of the
statutes of limitations for both survival and wrongful death
claims. The U.S. District Court granted summary judgment, holding
that the statute of limitations had run on both claims. Edith
Carroll appealed to the United States Court of Appeals for the
Ninth Circuit. The Ninth Circuit affirmed the District Court's
holding that the survival claim was barred by the applicable three-
year statute of limitations, but stated that Montana law was not
definitive on the issue of when a wrongful death action
accrues. This Court accepted jurisdiction of the certified
questions by order dated June 11, 1991.
Wrongful death claims are creatures of statute in Montana. As
such, the question of when a wrongful death claim accrues requires
an analysis of the general accrual statute and the wrongful death
statute itself.
The general accrual statute for all actions in Montana
provides :
[A] claim or cause of action accxues when all elements of
the claim or cause exist or have occurred, the right to
maintain an action on the claim or cause is complete, and
a court or other agency is authorized to accept
jurisdiction of the action;
Section 27-2-102(1)(a), MCA. The wrongful death statute reads:
Action for wrongful death. When injuries to and the
death of one person are caused by the wrongful act or
neglect of another, the personal representative of the
decedent's estate may maintain an action for damages
against the person causing the death or, if such person
be employed by another person who is responsible for his
conduct, then also against such other person.
Section 27-1-513, MCA.
General rules of statutory construction require this Court to
interpret the statutory language before us, without adding to, or
subtracting from, it. Section 1-2-101, MCA. Words and phrases
used in statutes of Montana are construed according to the context
and the approved usage of the language. Section 1-2-106, MCA.
Therefore, when interpreting statutes, this Court will use the
plain and ordinary meaning of a word. Mtn. View Ed. Assn. v. Mtn.
View School (1987), 227 Mont. 288, 738 P.2d 1288.
The language of Montana's general accrual statute is plain and
straightforward: "all elements" of a claim must exist before the
claim can accrue. Section 27-2-102(1) (a), MCA. The meaning is
equally clear and not susceptible to differing interpretations:
only when all elements exist is a claim complete. Section 27-2-
102(1)(a), MCA, applies, by its terms, to all claims and causes of
action. Thus, a wrongful death claim, like any other cause of
action, accrues only when all elements of the claim have occurred:
the claim simply does not exist until that time. The question,
then, is whether death is an element of a wrongful death claim.
The wrongful death statute references I!. . . injuries to
the death of one person. . . .I' Section 27-1-513, MCA. (Emphasis
added.) When these occurrences are caused by the "wrongful act or
neglect of another," a wrongful death action may be maintained
against the person who caused the death of the injured person.
4
Section 27-1-513, MCA. It is clear from the legislature's use of
the conjunctive "and" that the death of the injured person is an
element of a wrongful death claim.
The wrongful death statute contains additional language
mandating the conclusion that death is an element of the claim.
"[Tlhe personal representative of the decedent's estate . . .
'I
files a wrongful death action. Section 27-1-513, MCA. A
"decedent" is indisputably a person who has died and a personal
representative of an estate cannot be appointed until there is a
decedent. Thus, the death itself is a critical element in a
wrongful death action.
To summarize, no claim exists until all elements of a cause of
action occur pursuant to 5 27-2-102(1) (a), MCA, and death is an
element of a wrongful death claim under 5 27-1-513, MCA, Montana's
wrongful death statute. Therefore, we hold that a wrongful death
action in Montana accrues at the time of decedent's death.
Eased upon the above discussion, we answer the certified
questions as follows:
1. Does a Montana wrongful death action accrue at the time
of decedent's death? Yes.
2. If not, does a Montana wrongful death action accrue in
accordance with the discovery rule as a derivative cause of action?
Having answered Question #1 in the affirmative, we do not reach
Question #2.
3. If not, when and how does a Montana wrongful death action
accrue? Having answered Question #1 in the affirmative, we do not
reach Question #3.
We concur:
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January 14, 1992
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Gary L. Graham and Maureen H. Lennon
GARLINGTON, LOHN & ROBINSON
P.O. Box 7909
Missoula, MT 59807-7909
Thomas A. Baiz, Jr.
BAIZ LAW OFFICE
P.O. Box 1828
Great Falls, MT 59403
Tom L. Lewis
REGNIER, LEWIS & BOLAND
P.O. Box 2325
Great Falls, MT 59403
ED SMITH
CLERK O F THE SUPREME COURT
STATE O F MONTANA
BY
Deputy