(concurring):
I concur. We have two alternatives in dealing with the problem here presented. The first alternative is to closely adhere to the statute which in its wording makes no allowance for the unusual circumstance of the death not being discovered until after the period of limitations had run. The second alternative is to carve out an exception to the statutory language and allow the plaintiffs to pursue their claim, where through no fault of their own the fact of death could not have been discovered earlier.
This Court in Gallegos v. Midvale City, 27 Utah 2d 27, 492 P.2d 1335 (1972), was faced with a somewhat similar problem where a two-year old child was injured due to an alleged defect of a city street. Section 10— 7-77, U.C.A. 1953, provided that a claim against a city for injury caused by a defective street must be presented within 30 days. The parents of the child did not present the claim to the city until seven months later. We upheld the dismissal of the lawsuit because the claim had not been timely filed. We followed an earlier decision of this Court, Hurley v. Bingham, 63 Utah 589, 228 P. 213 (1924), and refused to make an exception to the statute even though the child was under legal disability. *88We announced that if there was any change to be made to the statute it should be done by a clear expression of the Legislature. We followed that rule in Varoz v. Sevey, 29 Utah 2d 158, 506 P.2d 435 (1973), involving a minor’s claim under our tort claims act, § 63-30-13, U.C.A. 1953.
There is merit to the position of refusing to make an exception to the plain wording of a.statute which makes no allowance for the legal disability of a child, or in this case, for learning of the death after the statute of limitations had run. We should be careful not to encroach upon legislative prerogative. However, there may well be a denial of constitutional rights in foreclosing persons from access to the court under these unusual circumstances. Besides the constitutional guarantees of due process and equal protection of the law, our Utah Constitution, Article I, Section 11, provides that “All courts shall be open, and every person, for an injury done to him in his person . . . shall have remedy by due course of law, which shall be administered without denial. . . .”
Because of these constitutional protections, I think this Court is required to take the position followed by the majority opinion and judicially create an exception to the statute which has failed to recognize this unique fact situation. To refer the problem to the Legislature as we did in Gallegos v. Midvale City, supra, would be to deny these plaintiffs their constitutional rights. We recognized that denial in Scott v. School Board, Utah, 568 P.2d 746 (1977), and impliedly overruled Gallegos v. Midvale City, supra, and Varoz v. Sevey, supra.
HALL, C. J., having disqualified himself, does not participate herein; SWAN, District Judge, sat.