Summary
In Crownover we concluded that the language of that statute plainly provided that the period of limitation began to run not at the time of death but at the time of discovery of the alleged negligence.
Summary of this case from Rauschenberger v. RadetskyOpinion
No. C-1047
Decided September 19, 1977. Rehearing denied October 11, 1977.
Action by surviving spouse against a physician for alleged wrongful death of his wife. The district court entered summary judgment for the physician and the spouse appealed. The court of appeals, 38 Colo. App. 96, 554 P.2d 313, construing the statute of limitations, affirmed and certiorari was granted.
Affirmed
1. DEATH — Cancerous Tissue — Negligence — Date of Discovery — Service of Summons — Bar — Two-Year Statute. In action by surviving spouse against physician for alleged wrongful death of his wife, where injury or damage from physician's alleged negligence was known or should have been known on April 26, 1972, when deceased underwent surgery and doctors discovered large areas of cancerous tissue in her chest, but it was not until November 13, 1974, that physician was served with a summons, more than two years from the "discovery" of the alleged negligence, held, under these circumstances, trial court acted properly in granting summary judgment in favor of physician on the ground that the claim for wrongful death against him was barred by the two-year statute of limitations, section 13-21-204, C.R.S. 1973.
2. LIMITATION OF ACTIONS — Wrongful Death — Two Years — Tolled — Date of Injury — Remedy — General Assembly. Where statute of limitations in a wrongful death action states that all such actions "shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought" (section 13-21-204, C.R.S. 1973), the statute begins to toll not from the date of death, but from the date the claimant is injured or damaged and knows or should know that such damage or injury was a result of the alleged negligence; and if this causes an unfair result, the remedy for its correction lies with the General Assembly.
3. STATUTES — Legislature — Reenacts — Repeatedly — Intent — Adherence. When a legislature repeatedly reenacts a statute which has theretofore received a settled judicial construction, there can be no doubt as to the legislative intent; in such circumstances, it must be considered that the particular statute is reenacted with the understanding that there be adherence by the judiciary to its former construction.
Certiorari to the Colorado Court of Appeals
Mellman, Mellman and Thorn, P.C., Douglas W. Johnson, for petitioner.
Paul D. Renner, for respondent.
We granted certiorari to review the decision of the court of appeals in Crownover v. Gleichman, 38 Colo. App. 96, 554 P.2d 313 (1976), construing the statute of limitations which is part of the wrongful death act, section 13-21-201 to 204, C.R.S. 1973. We affirm.
The question presented for review is whether the statute of limitations, section 13-21-204, runs from the date of death or from the wrongful act, neglect, or default which resulted in the death.
The issue arises in the following factual context. Petitioner filed a wrongful death complaint against Theodore K. Gleichman, M.D., on September 12, 1973. On October 24, 1974, as the result of information obtained through discovery proceedings, petitioner moved to join Thomas Kennedy, M.D., as a defendant. That motion was granted, and on November 13, 1974, petitioner served a summons and amended complaint on respondent Kennedy. The alleged negligence of respondent Kennedy consisted of the failure to discover a cancerous growth in petitioner's wife's chest when he examined her X-rays on July 19, 1971. The cancer was discovered during surgery on April 26, 1972. Petitioner's wife died on January 7, 1973, allegedly as the result of respondent Kennedy's negligence.
Thus, it appears that the summons and amended complaint were served within two years of the date of death, but more than two years after the discovery of the cancer. Respondent Kennedy thereupon moved for summary judgment on the ground that the claim for wrongful death against him was barred by the statute of limitations. The motion was granted and the court of appeals affirmed.
The petitioner contends that a statute of limitations cannot begin to run until the cause of action accrues and that to hold that the statute of limitations, under the wrongful death act, begins to run before death occurs creates an anomalous situation. It is possible, petitioner argues, for the statute of limitations to run before death occurs and thus bar the claim. Petitioner continues:
"The Legislature obviously intended to give survivors of the deceased a cause of action for the death. This cannot be accomplished by extinguishing a cause of action before it ever arises."
Colorado adopted its wrongful death act in 1877, and it remains unchanged insofar as it is material to our discussion. Colorado's wrongful death act was patterned after Lord Campbell's Act which was passed by the English Parliament in 1846. Had the General Assembly followed the limitations provision as closely as it did the other provisions of Lord Campbell's Act, this controversy would not be here. However, the departure is crucial as is readily apparent from an examination of the respective texts.
G. L. § 878; G. S. § 1031; R. S. 08, § 2057; C. L. § 6303; CSA, C. 50, § 2; C.R.S. 53, § 41-1-2; C.R.S. 1963, § 41-1-2.
Lord Campbell's Act, 9 10 Vict., ch. 93 (1846).
Section III of Lord Campbell's Act, in pertinent part, provides:
"and that every such action shall be commenced within Twelve Calendar Months after the death of such deceased Person," (emphasis added).
Whereas the corresponding provision of the Colorado statute states:
"All actions provided for by sections 13-21-201 to 13-21-203 shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought." (emphasis added).
Although we could speculate as to why the first General Assembly elected not to follow Lord Campbell's Act in respect to the limitations provision, we would still be faced with the task of interpreting the language used. Although the language of our statute is arguably less precise than in the English law, it inevitably leads to the conclusion that it sets a different time for the commencement of the running of the statute of limitations.
This court did not have occasion to apply the statute until 1949 in Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949). The court recognized that this statutory action is not a "survival" statute to recover for a personal injury but is a new and different kind of action to recover compensation for death. See Prouty v. Chicago, 250 Ill. 222, 95 N.E. 147 (1911). The court in Fish held that: " the statute of limitations begins to run immediately upon the happening of the wrongful act, . . . ." (emphasis added).
The factual situation in Fish v. Liley is not parallel to that here. This may have occasioned statements in Fish from which the petitioner drew some comfort. However, in Franzen v. Zimmerman, 127 Colo. 381, 256 P.2d 897 (1953), a wrongful death case where the tort occurred December 5, 1947, death occurred June 4, 1949, and the complaint was filed July 28, 1950, the court, without citing Fish v. Liley, said:
"The action not having been filed within two years after the commission of the alleged negligence, said to have resulted in the death of the injured husband, it is barred by section 4, . . . ."
The petitioner interprets our holding in DeCaire v. Public Service Co., 173 Colo. 402, 479 P.2d 964 (1971), as supportive of his position. The trial court and the court of appeals cited it in support of the contrary view. The basic issue in DeCaire related to the question of when the injury occurred. We there held that the statute of limitations begins to run when the claimant has been injured or damaged by the alleged negligence.
This court as recently as 1974, in Ferrari v. Dist. Ct., 185 Colo. 136, 522 P.2d 105, in obiter dictum, noted that "our statute of limitations relating to death cases commences with the time of injury. C.R.S. 1963, 41-1-4. See Fish v. Liley, 120 Colo. 156, 208 P.2d 930 (1949)."
[1] In the instant case the injury or damage from Dr. Kennedy's alleged negligence was known or should have been known on April 26, 1972, when the deceased underwent surgery and the doctors discovered large areas of cancerous tissue in her chest. It was not until November 13, 1974, that Dr. Kennedy was served with a summons, more than two years from the "discovery" of the alleged negligence. See Owens v. Brochner, 172 Colo. 525, 474 P.2d 603 (1970).
[2] Further, without torturing the language of the statute, it is difficult to see how one could interpret the language of the statute to mean anything other than what it says — "all actions . . . shall be brought within two years from the commission of the alleged negligence resulting in the death for which suit is brought." If this is an unfair result, the remedy for its correction lies with the General Assembly.
[3] Finally, we must adhere to the well-established rule of statutory construction that when a legislature repeatedly reenacts a statute which has theretofore received a settled judicial construction, there can be no doubt as to the legislative intent. In such circumstances, it must be considered that the particular statute is reenacted with the understanding that there be adherence by the judiciary to its former construction. Herbertson v. Russell, 150 Colo. 110, 371 P.2d 422 (1962), and cases cited therein.
The judgment is affirmed.
MR. JUSTICE LEE and MR. JUSTICE ERICKSON do not participate.
MR. JUSTICE CARRIGAN dissents.