Edwards v. Fogarty

GOLDEN, Justice,

dissenting, with whom LEHMAN, Chief Justice, joins.

I respectfully dissent.

Mr. Edwards died on April 5, 1993. The appellants, the personal representative of Mr. Edwards and “those entitled to claim pursuant to W.S. § 1-38-102” (the survivors), brought a wrongful death action on April 4, 1995. The action was filed within the two-year limitation period found in the wrongful death statute. Wyo. Stat. § 1-38-102(d) (1997).

The majority inserts a non-existent condition precedent into the wrongful death statute. The statute does not require that the deceased have a viable right of action at death for a right of action to exist in the survivors. The statute provides:

Whenever the death of a person is caused by wrongful act, neglect or default such as would have entitled the party injured to maintain an action to recover damages if death had not ensued, the person who would have been liable if death had not ensued is liable in an action for damages * * *.

Wyo. Stat. § 1-38-101 (1997) (emphasis added). The emphasized language of the statute, which the majority claims is the “crux of this issue,” merely identifies the types of iniquities inflicted by the tortfeasor upon the decedent which entitle the survivors to a right of action for wrongful death. This language is not rendered meaningless if the survivors are allowed to bring an action for wrongful death where the underlying personal injury claim was time-barred at the time of the victim’s death. It still identifies the tort-feasor’s conduct which entitles the survivors to bring a wrongful death action. The plain reading of that language of the statute is that statutory beneficiaries (the survivors) under the wrongful death statute may not recover in those types of cases where the deceased never had a cause of action against the defendants or where there is a substantive defense which could be invoked. See Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 186 (Mo.Ct.App.1982). If the legislature intended to extinguish wrongful death claims where the decedent’s underlying cause of action was time-barred, it could have expressed that intention in plain English.

The claim for wrongful death and the underlying personal injury claim are separate and distinct. Gramlich, 640 S.W.2d at 186. A wrongful death plaintiff sues for his own “injury” caused by the death of the decedent, not for the injury to the decedent. The wrongful death action cannot arise and the statutory beneficiaries can take no action with respect to their claim until after the death occurs. Id.

This principle is clear in Wyoming’s survival statute, which states, in part:

An action may be brought notwithstanding the death of the person entitled or liable to the same, but in actions for personal injury damages, if the person entitled thereto dies recovery is limited to damages for wrongful death.

Wyo. Stat. § 1-4-101 (1997). We distinguished underlying claims, brought by the person who sustains the injury, and the new cause of action which arises upon the death *884of the injured party in DeHerrera v. Herrera, 565 P.2d 479, 482-83 (Wyo.1977). The two types of actions are indeed “as unlike as fish to fowl.” Id. at 483. Unlike an action for personal injury, the proceeds from the wrongful death action do not become part of the decedent’s estate. Id. at 482. The wrongful death statute creates a new cause of action for the benefit of designated persons who have suffered the loss of a loved one and provider. Id. (citing Speiser, Recovery for Wrongful Death, 2d (1975), § 14:1, p. 408). Recovery in a wrongful death action is limited to damages stemming from the wrongful death. Parsons v. Roussalis, 488 P.2d 1050, 1052 (Wyo.1971). Those damages are limited to those proven by the person for whose benefit the action is brought, “including damages for loss of probable future companionship, society and comfort.” Wyo. Stat. § 1-38-102 (1997); and see DeHerrera, 565 P.2d at 482-483. The damages available to an injured party in a personal injury action include recovery for the injured party’s economic and non-economic losses. See Parsons, 488 P.2d at 1052; DeHerrera, 565 P.2d at 482-83. Personal injury damages are not recoverable in a wrongful death action. Id.

The Wrongful Death Act does not tie the wrongful death claim to the limitation period of the underlying personal injury claim. We must heed the legislature’s directive: “[cjivil actions can only be commenced within the periods prescribed in this chapter, after the cause of action accrues, but where a different limitation is prescribed by statute, that shall govern.” Wyo. Stat. § 1-3-102 (1997) (emphasis added). The survivors, those for whom the personal representative is authorized to bring a wrongful death action, are not injured until the death of the decedent. The limitation portion of the wrongful death statute expressly requires the personal representative of the decedent to bring-an action within two years of the decedent’s death. Wyo. Stat. § l-38-102(d) (1997). It necessarily follows that a wrongful death action is governed by the limitations period provided in the wrongful death statute, not the medical malpractice statute found in Wyo. Stat. § 1-3-107(1997).

Finally, the majority’s decision ascribes to the statute a meaning that will nullify the operation of the Wrongful Death Act under certain circumstances. Statutes must be read to avoid absurd results. DeHerrera, 565 P.2d at 482. “It is contrary to reason to ascribe to a statute a meaning that will nullify its operation, if capable of any other interpretation.” Id. If the legislature intended to bar the survivors’ right of action for wrongful death before that claim existed, it would have expressly provided for that result.