North Coast Air Services, Ltd. v. Grumman Corp.

Brachtenbach, J. —

The United States District Court for Western Washington certified this question:

Under RCW 7.72.060(3), which requires a claimant to bring a products liability claim within three years "from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause," does the statute of limitations begin to run as soon as an injury occurs in which a product is involved, or is it a question for the trier of fact to determine when "in the exercise of due diligence" the product's relationship to the injury should have been discovered, with the statute of limitations running from that date.

Order, dated Aug. 5,1987.

The lawsuit in federal district court arose from the crash of a Grumman Mallard amphibious airplane, manufactured by defendant Grumman Corporation. The crash occurred on March 5, 1974. The action was filed July 30, 1986. The plaintiffs are the corporate owner of the crashed airplane, the personal representative of the pilot killed in the crash, and the pilot's father who is also chief executive officer of the corporate owner.

The crash occurred in British Columbia. An undisputed fact submitted to us by the trial court is that an inquest was held and that investigating authorities attributed the crash to pilot error. The plaintiffs' pleadings include an affidavit by the deceased pilot's father stating that the investigating authorities also concluded there was no mechanical defect in the plane, and that he learned nothing to the contrary until more than 11 years later.

Plaintiffs allege that on May 6, 1984, the father learned that a Grumman Mallard belonging to the corporate plaintiff almost stalled on takeoff. It is alleged that a defect in the elevator control assembly could cáuse the elevator to freeze, leading to a crash. The father allegedly learned of other incidents involving this aircraft in which the plane crashed following a stall. The father alleges that only after *318these other incidents did he realize that the 1974 crash may have resulted from a similar defect. Therefore, the father began an investigation of the cause of the crash which killed his son. He alleges that he located a piece of the plane's wreckage which contains a defective elevator linkage.

Defendant moved to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6), or alternatively, for judgment on the pleadings or for summary judgment. The district court judge, the Honorable Carolyn R. Dimmick, denied the motion, ruling in part as follows:

Plaintiffs' complaint is not barred by RCW 7.72.060(3). For purposes of this statute of limitations as it relates to the plaintiffs' allegations and claims, the plane crash as "cause" of the "harm" to plaintiffs and the alleged cause of the crash, the design defect, are inseparable. Viewing the material allegations and evidence in the light most favorable to the plaintiffs, as here this Court must, the cause of the harm to the plaintiffs is both the crash and the alleged design defect which precipitated it. Consistent with this view of the material allegations and evidence, plaintiffs filed their complaint within three years from the time they "discovered" the cause of their harm. Although the defendant has not filed its answer, the alleged design defect and its discovery are, for purposes of tolling the statute of limitations, material and presumably disputed issues of fact. For all these reasons, dismissal or summary judgment is improper here.

Order, dated Feb. 13,1987.

Defendant moved for reconsideration, or alternatively, for certification to the Ninth Circuit Court of Appeals, 28 U.S.C. § 1292(b) (1982). The federal district court on its own motion then certified to this court the above question. For reasons stated hereafter we agree with the conclusion of the federal district court that the action is not barred as a matter of law.

Defendant's position is that "a product liability claim accrues for purposes of RCW 7.72.060(3) when the claimant knew or should have known the harm and the immediately apparent basis for the harm.” Brief of Appellant, at 34. *319Thus, defendant reasons that the action accrued at the time of the crash because plaintiff knew the harm (death of the pilot) and its cause (crash of the plane). Defendant would substitute the phrase "immediately apparent basis for the harm" for the word "cause," in the statute.

Plaintiffs contend that the statute "requires discovery of a causal connection of a product to an injury, and that it is a factual question whether a claimant has exercised due diligence in discovering that causal connection in cases in which the connection is not immediately obvious." Brief of Respondents, at 30.

The statute in question, RCW 7.72.060(3), provides: "no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause."

We conclude that the claimant in a product liability case must have discovered, or in the exercise of due diligence should have discovered, a factual causal relationship of the product to the harm.

That means in this case the action did not accrue at the time claimant knew of the harm (death) and knew that the apparent and immediate cause was the crash. At the time of the crash obviously the claimant knew of the harm. Equally obvious is that claimant knew the ostensible cause was the crash. Defendant would have that suffice. For reasons discussed hereafter we hold that the claimant must know or should with due diligence know that the cause in fact was an alleged defect. Whether the claimant knew or should have known will ordinarily be a question of fact. That the causal connection usually is a question of fact is recognized. See, e.g., Shaughnessy v. Spray, 55 Or. App. 42, 51, 637 P.2d 182 (1981), review denied, 292 Or. 589, 644 P.2d 1130 (1982); Eisenmann v. Cantor Bros., 567 F. Supp. 1347, 1355 (N.D. Ill. 1983).

Defendant argues that we should examine legislative history which defendant contends shows a legislative intent to: (1) overrule the discovery rule of Ohler v. Tacoma Gen. *320Hosp., 92 Wn.2d 507, 598 P.2d 1358 (1979); (2) accrue the action when the claimant knew or should have known of the "immediately apparent basis" for the harm; and (3) allow statute of limitations questions to be resolved ordinarily as a matter of law. Brief of Appellant, at 21, 34.

Plaintiffs, alternatively, assert that if the statute is ambiguous, legislative history leads to their interpretation. Whether we limit ourselves to an interpretation of the statute or examine legislative history we reach the same conclusion.

Before examining the statute and its history we point out that this case illustrates the difficulties inherent in statutory construction, around which has developed an entire body of rules or canons of interpretation with an accompanying array of literature. The most-cited text comprises four volumes. J. Sutherland, Statutory Construction (4th ed. 1974-86). Volume 2A, § 45.01 n.l cites two pages of literature.

The most often asserted objective of interpretation is to ascertain legislative intent, a generality formulated as early as 1584 by Lord Coke. 2A N. Singer, Statutory Construction § 45.05.

The courts also recite the litany that if the words are not ambiguous, there is no need or authority for judicial interpretation.

However, this rule is deceptive in that it implies that words have intrinsic meanings. . . .
The assertion in a judicial opinion that a statute needs no interpretation because it is "clear and unambiguous" is in reality evidence that the court has already considered and construed the act.

2A N. Singer, Statutory Construction § 45.02 (4th ed. 1984).

An alternative criteria is suggested in the canon that words are to be given their usual and ordinary meaning. State ex rel. Longview Fire Fighters, Local 828 v. Longview, 65 Wn.2d 568, 571, 399 P.2d 1 (1965).

*321There may be a significant difference between "intent" and "meaning." Holmes went so far as to say that "we do not inquire what the legislature meant; we ask only what the statute means." O.W. Holmes, Collected Legal Papers 207 (1920). This court has combined these approaches by holding that the Legislature's intention "is to be deduced, if possible, from what it said." Lynch v. Department of Labor & Indus., 19 Wn.2d 802, 806, 145 P.2d 265 (1944); State v. Wilbur, 110 Wn.2d 16, 18, 749 P.2d 1295 (1988). See 2A N. Singer § 45.08.

The immediate case also involves the relevance and weight of committee reports, statements made at committee meetings and in floor debate.

We recognize that the ultimate purpose of interpretation, regardless of what canons are used to assist the analytical methodology, is to determine what the statute means. That usually means ascribing to the words of the statute their plain and ordinary meaning. Intent, if ascertainable, may be of assistance, but cannot override an otherwise discernible, plain meaning.

As discussed above, if we look only to the statute, the court examines the words of the statute and gives those words their plain and ordinary meaning. We may examine the legislative declaration of purpose to assist in determining that the plain meaning as we ascertain it is consistent with that declared purpose. RCW 7.72 is a codification of Laws of 1981, ch. 27. The preamble declares:

It is the intent of the legislature to treat the consuming public, the product seller, the product manufacturer, and the product liability insurer in a balanced fashion in order to deal with these problems.
It is the intent of the legislature that the right of the consumer to recover for injuries sustained as a result of an unsafe product not be unduly impaired. . . .

Laws of 1981, ch. 27, § 1.

With that legislative declaration of purpose in mind, we examine the statute. The word "harm" is defined in RCW 7.72.010(6). There is no question here that the "harm" was *322the death of the pilot. "Cause" is not defined; its meaning is critical to resolution because the claimant must not only have discovered or should have discovered the harm, but also "its cause."

The dictionary definition of cause is pertinent: cause: ”1 a: a . . . thing, fact, or condition that brings about an effect ...3a: something that occasions or effects a result". Webster's Third New International Dictionary 356 (1981).

The distinction which must be drawn in interpreting "cause” is between a cause and a condition. "The cause of an injury is that which actually produces it, while the occasion is that which provides an opportunity for the causal agencies to act." Merlo v. Public Serv. Co., 381 Ill. 300, 316-17, 45 N.E.2d 665 (1942); Coyle v. Stopak, 165 Neb. 594, 606, 86 N.W.2d 758 (1957). An act, omission or event is not regarded as the cause of a result if the result would occur without it. Polyard v. Terry, 160 N.J. Super. 497, 511, 390 A.2d 653 (1978).

Defendant is candid in its assertion that the discovery rule should not be applied to a traumatic injury case. Brief of Appellant, at 17. It advances the notion that the claim accrues "when the claimant knew or should have known the harm and the immediately apparent basis for the harm." Brief of Appellant, at 34. This approach literally equates "cause" with the traumatic event. Thus, any airplane crash with known resultant injuries would automatically start the running of the statute of limitations. This would be true despite the possibility that pilot error, weather conditions, faulty tower control, or whatever was the cause in fact. Likewise, an automobile crash with known resultant injuries would accrue the claim, even though the cause in fact might be thought to be driver error, road conditions or any one of a myriad of causes, but was in fact a defect in the automobile.

Defendant's interpretation under these facts would read out of the statute the concept of "should have known/due diligence" on the part of the claimant. Knowledge would be imputed as a matter of law from the traumatic event. Had *323the Legislature intended such a bright line, it could have plainly so provided.

The Legislature declared its intent that the "right of the consumer to recover for injuries sustained as a result of an unsafe product not be unduly impaired." Laws of 1981, ch. 27, § 1. The defendant's proposed rule would require a claimant to sue within 3 years whether or not the plaintiff knew or should have known that there was a defective product. This statutory interpretation negates the fact that the claimant might not know what was in fact the cause of the harm. The necessity for the discovery rule would not be served and the right of recovery would be unduly impaired.

The defendant's interpretation renders meaningless the obligation of the claimant to discover with due diligence the actual cause of the harm. Indeed, the defendant asserts that the discovery rule "should not be applied to a traumatic injury case." Brief of Appellant, at 17.

The desirability of a discovery principle is particularly evident in this case where the official investigation concluded that the "cause" of the crash was pilot error. Construing the pleadings most favorable to the plaintiff as is required in this procedural posture, the possibility of mechanical defect was ruled out by the investigating authorities. Yet the defendant's proposed rule would require plaintiffs to begin a suit before they either had or should have had any knowledge of a possible legal responsibility of this defendant. Plaintiffs concede that there is a question of fact as to when they discovered or should have discovered the causal connection of the alleged defect. Brief of Respondents, at 31.

We now address defendant's contention that legislative history supports its position. The impetus for legislative action was this court's application of the discovery rule to a product liability claim in Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 598 P.2d 1358 (1979). We held that plaintiff's claim did not accrue "until she discovered or reasonably should have discovered all of the essential elements of her *324possible cause of action, i.e., duty, breach, causation, damages." Ohler, at 511. Defendant traces refinement of the discovery rule through Sahlie v. Johns-Manville Sales Corp., 99 Wn.2d 550, 663 P.2d 473 (1983), White v. Johns-Manville Corp., 103 Wn.2d 344, 693 P.2d 687 (1985), and Reichelt v. Johns-Manville Corp., 107 Wn.2d 761, 733 P.2d 530 (1987).

Defendant relies extensively on the rationale of Tyson v. Tyson, 107 Wn.2d 72, 727 P.2d 226 (1986). Defendant's support from Tyson is totally undercut by the enactment of Laws of 1988, ch. 144. That statute applies the discovery rule in instances denied by Tyson.

We concern ourselves only with the Ohler principle because defendant contends that in enacting RCW 7.72-.060(3) the Legislature clearly intended to overrule Ohler. Brief of Appellant, at 4. Defendant maintains that u[t]he Legislature in 1981 rejected Ohler and its progeny in favor of a more objective standard that could be applied by courts as a matter of law." Brief of Appellant, at 32.

There is some merit to defendant's assertion that the discovery principle should be limited to situations where the cause in fact of the harm is not readily discoverable or harm develops over a period of time; a progressive disease caused by asbestos is a good example. The difficulty with defendant's analysis, and the reason it fails, is that the language of the statute is not so constructed. The heart of defendant's forceful argument is that there is no need for an opportunity for discovery of the cause when there is "an immediately apparent basis" for the harm. Application of the defendant's proposal to these facts would mean that a court, as a matter of law, would necessarily hold that because it was immediately apparent that the crash was the cause of death, the claim was barred 3 years after the crash. The fact that the official investigation ruled out the possibility that a product defect was the actual cause of the crash would be immaterial. We cannot reconcile that result with the purpose and language of the statute.

*325The history of the statute includes in part the report of a select committee on product liability and tort reform created by Senate Resolution 1979-140. The final report of the select committee was incorporated in the Senate Journal, 47th Legislature (1981), at 617. Therefore we may consider it. The relevant portion of the committee report stated:

The Committee has carefully selected language relating to the statute of limitation in order to modify the discovery rule announced in Ohler . . . Because the discovery of all the essential elements of the cause of action is, practically speaking, beyond the understanding of the average layperson until he chooses to seek legal counsel, the Ohler rule unjustifiably extends the period during which an action may he brought. In utilizing the language "time of discovery of the harm and its cause," the Committee intends to recreate a more reasonable and meaningful statute of limitations as to product liability claims.

(Italics ours.) Senate Journal, 47th Legislature (1981), at 626. A similar comment is contained in the official report at pages 633-34, i.e., it repeats the declaration of intent to modify the rule of Ohler. Defendant insists the intent was to overrule rather than modify Ohler.

A floor colloquy between Senators Newhouse and Botti-ger was as follows:

Senator Newhouse: "Thank you. One more question. Is the statute of limitations provision in section 7(3) [RCW 7.72.060(3)] intended to overrule our Supreme Court's decision in Ohler vs. Tacoma General Hospital, in which it was held that the statute of limitations does not begin to run until the plaintiff has discovered each and every element of his or her cause of action?"
Senator Bottiger: "Yes, the discovery rule would apply only to the discovery of the harm and its cause. In this context, 'discovery of the cause' merely means the discovery that the product was casually [sic] connected with the harm. It does not mean the discovery of the nature of the defect of the product.

Senate Journal, 47th Legislature (1981), at 616.

The official committee report, in two places, declares an intent to modify Ohler. It is clear that the modification *326related to the Ohler requirement that the claimant learn all of the essential elements of a legal cause of action. Beyond that the report is not definitive as to how the Ohler rule was modified. Senator Bottiger's response indicates his opinion that the discovery required is that the product was causally connected with the harm. The discovery, the Senator continued, need not be of the nature of the defect in the product.

We are not persuaded that this floor exchange supports defendant's position. First, the answer of a single legislator should not create an intent different from that in the official committee report if the answer is inconsistent with the report. Second, the question and answer are ambiguous. Senator Bottiger said the bill would overrule Ohler, but to overrule Ohler would eliminate the discovery rule in product cases. That is not the effect of this statute; indeed it statutorily recognizes a different form of what had been a judicially created discovery rule. The statute, despite the floor colloquy, did not overrule Ohler, it modified the conditions necessary to trigger running of the statute of limitations.

These evidences of legislative intent should not lead defendant to conclude that a claimant need only know of the "immediately apparent basis for the harm." At best this legislative history demonstrates an awareness of the significance of the Ohler definition of the discovery rule. The difficulty is that the language chosen to modify Ohler is imprecise and ambiguous. "Cause" is a word with multiple connotations. Interpretation is more difficult because "cause" has legal meanings as well.

Given that ambiguity it is appropriate to apply a liberal construction consistent with the Legislature's declaration that its intent was to not unduly impair a claimant's right to recover.

Defendant refers in its brief to testimony before the committee and to remarks from staff counsel. We necessarily give little weight to such source material. It is unwise to go behind the committee report and examine piecemeal *327quotations. What motivated the actual language of the statute is too speculative to be of assistance in interpreting the words enacted into law.

The Senate Committee report refers to its reliance upon a so-called model uniform product liability act. It is a model act only because it is titled such. It was promulgated by the Department of Commerce. 44 Fed. Reg. 62,714-62,750 (1979). The language of § 110(c) contains language like that of RCW 7.72.060(3). It is testimony about that section from the chairman of the task force of the Commerce Department and committee counsel which defendant cites. Even if we gave weight thereto, it is inconclusive except to show an intent to modify the Ohler rule. More persuasive is the writer's conclusion, referring to the precise language involved in § 110(c) (and RCW 7.72.060(3)):

It would appear that the statute does not begin to run upon mere discovery that a "product" caused an injury; the discovery provision would be triggered upon discovery that a "defective product" caused the injury.

McGovern, The Status of Statutes of Limitations and Statutes of Repose in Product Liability Actions: Present and Future, 16 Forum 416, 425 (1980-1981).

The quoted conclusion is supported by the analysis published by the task force which developed the model act. In reference to § 111(c), it is stated:

Subsection (c) extends the limitation period beyond the time of harm in situations where the claimant would have no reason to know about the harm or the causal connection to a defective product (e.g., the case of long-term pharmaceutical harms).

(Italics ours.) Uniform Products Liability Act § 111 analysis.

On this record, there are no facts which causally connected the product to the harm. Plaintiffs had no more reason to believe that there was any defect in the aircraft than to believe or disbelieve the accuracy of the official investigation that the cause of the harm was pilot error and not the result of mechanical defect.

*328The defendant's analysis would mandate the commencement of the action within 3 years, regardless of the claimant's knowledge or ignorance of the cause in fact. Defendant would impose the most stringent interpretation so that the injury event alone would trigger the time limitation. However, the Legislature did not enact such a bright line discovery rule. The very basis of the discovery rule is that there is doubt as to when the statute begins to run.

This statute is intended to give the plaintiff a fair chance to ascertain the harm and its cause. Protection to the defendant is afforded by the provision that plaintiff may be barred if plaintiff did not exercise due diligence in discovering the harm and its cause. This standard of reasonable inquiry placed upon the plaintiff serves the policy reasons underlying statutes of limitation.-\Our interpretation is consistent with the legislative declaration of purpose to treat all parties in a balanced fashion and without unduly impairing the rights of one injured as a result of an unsafe product.

Whether plaintiff in due diligence should have discovered the cause of the harm is an unresolved question of fact.

Pearson, C.J., and Utter, Dolliver, Dore, and Andersen, JJ., concur.