Opinion
C.A. No. 99C-05-260 ASB.
Submitted: December 10, 1999.
Decided: August 21, 2000.
Defendants Penn Shipping Company and Victory Real Estate Development Corporations' Motion for Summary Judgment-Motion Granted-
Appearances: Thomas C. Crumplar, Esquire, 2 East 7th Street, P.O. Box 1271, Wilmington, DE 19899, Attorney for Plaintiffs.
Lee C. Goldstein, Esquire, 1201 Orange Street, 3rd Floor, P.O. Box 1957, Wilmington, DE 19899, Attorney for Defendants Victory Real Estate Development Corp. and Penn Shipping Co.
OPINION
I. FACTS
In November 1992, Plaintiffs' decedent Paul Meth was diagnosed with benign fibrous mesothelioma. At this time, Mr. Meth was a 61-year-old male with a smoking history of 25 years, which had ended 11 years prior to the diagnosis. Mr. Meth had worked in the Brooklyn Navy Yard for several years. In August 1993, Mr. Meth was diagnosed with malignant mesothelioma.
In October 1993, Mr. Meth filed a complaint in California against multiple defendants, including movants Victory Real Estate Development Corporation and Penn Shipping Company (collectively "defendants") alleging that his mesothelioma was a result of exposure to asbestos during his employment. On May 16, 1994, the complaint was dismissed against defendants Victory and Penn for lack of jurisdiction. On June 12, 1996, Mr. Meth died.
On June 4, 1999, Plaintiff filed the current action against the defendants for negligence and unseaworthiness, contending that defendants exposed Mr. Meth to asbestos while he was employed on defendants' vessels between 1956 and 1964, and that Mr. Meth contracted and died from mesothelioma as a result of this exposure.
Defendants Victory and Penn move for partial summary judgment, alleging that there are no genuine issues of material fact, and that Plaintiffs survival and wrongful death actions are time-barred by the applicable three-year statute of limitations.
II. STANDARD OF REVIEW
The Court may grant summary judgment if it concludes that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." The moving party bears the initial burden of showing that no material issues of fact are present. Once such a showing is made, the burden shifts to the nonmoving party to demonstrate that there are material issues of fact in dispute. In considering a motion for summary judgment, the Court must view the record in a light most favorable to the nonmoving party. The Court's decision must be based solely on the record presented and not on all evidence "potentially possible."
Super. Ct. Civ. R. 56(c); Burkhart v. Davies, Del. Supr., 602 A.2d 56, 59 (1991).
Moore v. Sizemore, Del. Supr., 405 A.2d 679, 680 (1979).
Id. at 681.
Burkhart, 602 A.2d at 59.
Rochester v. Katalan. Del. Supr., 320 A.2d 704, 708 (1974) (citing United States v. Article Consisting of 36 Boxes, D. Del., 284 F. Supp. 107 (1968), aff'd, 415 F.2d 369 (3d Cir. 1969)).
III. DISCUSSION
A. The Jones Act: Causes of Action and Limitations PeriodsThe central issues before the Court are: (1) Is Plaintiffs survival action precluded by the expiration of the statute of limitations? (2) Is Plaintiffs wrongful death claim barred by the statute of limitations?
"Because this case involves the death of a seaman, we must look to the Jones Act," 46 U.S.C. § 688, which provides a cause of action for injury or wrongful death to seaman. The Jones Act incorporates provisions of the Federal Employer's Liability Act, 45 U.S.C. § 51-60 ("FELA"), to grant seamen a right of recovery for injuries resulting from an employer's negligence. Stated differently, "[t]he Jones Act establishes a uniform system of seamen's tort law parallel to that available to employees of interstate railway carriers under FELA."
Miles v. Apex Marine Corp. et al., 498 U.S. 19, 36 (1990).
46 U.S.C. § 688; Miles, 498 U.S. at 28.
O'Donnell v. Great Lakes Dredge Dock Co., 318 U.S. 36, 38-39 (1943); Mitchell v. Trawler Racer. Inc., 362 U.S. 539, 547 (1960).
Miles, 498 U.S. at 29.
The Jones Act, by incorporating FELA, contains both a wrongful death provision and a survival provision which may be brought as distinct actions. "In simplest terms, the wrongful death action is to recover damages to beneficiaries resulting from the decedent's death, the survival action to recover damages the decedent could have recovered but for his death."
Sea-Land Services. Inc. v. Gaudet, 414 U.S. 573, 575 n. 2 (1974); Calhoun et al. v. Yamaha Motor Corp., U.S.A. et al., 40 F.3d 622, 637 (3rd Cir. 1994).
Azzopardi v. Ocean Drilling and Exploration Co., 742 F.2d 890, 893 (5th Cir. 1984).
Lawsuits filed under FELA, and by incorporation the Jones Act, must be initiated "within three years from the day the cause of action accrued." Compliance with the threeyear statute of limitations is a condition precedent to recovery: failure to timely file suit destroys the employer's liability and bars the claimant's recovery. The Plaintiff bears the burden to prove that his or her cause of action was brought within the three-year period.
45 U.S.C. § 56; See McAllister v. Magnolia Petroleum Company, 357 U.S. 221, 225 (1958); Cox v. Ruth. 348 U.S. 207, 210 (1955).
Carpenter v. Erie R. Co., 132 F.2d 362, 363 (3rd Cir. 1942); Emmons v. Southern Pac. Transp. Co., 701 F.2d 1112, 1117 (5th Cir. 1983); Johnson v. Norfolk Western Railway Company, 985 F.2d 553 (4th Cir. 1993).
Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 266 n. 9 (5th Cir. 1991).
B. The Jones Act: Survival Actions-45 U.S.C. § 59
The first issue to consider is whether the Plaintiffs survival action is precluded by the statute of limitations.
A survival action is for the wrong to the deceased, and permits the estate to seek recovery for injury to the decedent-personal loss and suffering-sustained during life from the action causing death. The purpose of a survival action is not to create a separate claim for survivors, but to preserve rights of action the decedent could have maintained had she not died.
St. Louis. Iron Mountain and Southern R.R. Co. v. Craft, 237 U.S. 648, 658 (1915); Gaudet, 414 U.S. at 575 n. 2; Calhoun, 40 F.3d at 637.
Federated Services Ins. Co., Wash. Ct. App., No. 43177-3-I, 2000 WL 1035966, at *4, Becker, A.C.J. (June 12, 2000); Erickson v. Baxter Healthcare. Inc., ND. Ill., (2000), 94 F. Supp.2d 907, 911.
If the statute of limitations has run and would have barred a personal injury claim by the decedent immediately before his death, then a survival claim by the personal representative is also barred.
Flynn v. New York. N.H. H.R. Co., Conn., 149 A. 682 (1930), aff'd 283 U.S. 53 (1931); Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 70 (1913).
A survival action accrues at the date of injury which leads to the seaman's death. Where the injury results from exposure to a toxic substance over time, the injury occurs for limitations purposes when the cumulative effects of the substance manifest themselves-that is, when the "claimant discovers, or a reasonable person would have discovered his injury and knows, or has reason to know, the cause thereof."
Reading Co. v. Koons, 271 U.S. 58, 63 (1926);Bums v. Marine Transport Lines. Inc., S.D.N.Y., 207 F. Supp. 276, 277 (1962).
Urie v. Thompson, 337 U.S. 163, 170 (1949);Matter of Central R.R Co. of New Jersey. 950 F.2d 887, 892 (3d Cir. 1991), cert. den. 503 U.S. 971 (1992).
Defendants argue that the three-year statute of limitations for survival actions began to run in November 1992, when the decedent and his representatives knew of the disease and were informed by Mr. Meth's physician of the relationship between asbestos exposure and the growths in his lungs. Thus, defendants argue, the survival claim is time-barred because it was filed over six years after the injury was discovered. Plaintiffs do not challenge defendants' assertion that the survival claim is precluded by the statute of limitations.
Defendants are correct in their argument that this claim is time-barred. Mr. Meth's medical records indicate that he was diagnosed with mesothelioma as early as November 1992. Mr. Meth testified at deposition that he was told that the mesothelioma was related to asbestos exposure in November 1992. Because Mr. Meth was in possession of the pertinent facts of his injury and its cause in November 1992, the three-year statute of limitations for survival claims began to run from that date, and has since expired.
Memorandum in Support of Defendants' Motion, Exhibit C.
Memorandum in Support of Defendants' Motion, Exhibit B at p. 214.
Summary judgment is granted as to the survival action claim.
C. The Jones Act: Wrongful Death Actions-45 U.S.C. § 51
The second issue to address is whether Plaintiffs wrongful death action is precluded by the statute of limitations. Specifically, as framed by the Defendants' argument: Is there a condition precedent to a wrongful death suit under the Jones Act or general maritime law requiring that the seaman die with a cause of action for his personal injuries that had not yet lapsed under the three-year statute of limitations?
A wrongful death action allows the beneficiaries to seek recovery for their personal pecuniary losses suffered as a result of the decedent's death. Damages are gauged by the amount of pecuniary benefits-such as economic support-the beneficiaries might have reasonably received if the deceased had not perished from his injuries A wrongful death action accrues upon the seaman's death.
St. Louis, 237 U.S. at 658; Calhoun, 40 F.3d at 637.
Id.; Michigan Cent. R.R. Co., 227 U.S. at 70.
Reading Co. v. Koons, 271 U.S. 58 (1926).
In 1920, Congress enacted two pieces of legislation creating wrongful death actions for maritime deaths. The Jones Act, through incorporation of FELA, created a wrongful death action in favor of the personal representative of a seaman killed in the course of employment, and the Death on the High Seas Act (DOHSA), 46 U.S.C. § 761-768, created a similar action for the representative of anyone killed on the high seas.
Miles, 498 U.S. at 23-24.
Id.
The Jones Act does not preclude the recovery for wrongful death due to unseaworthiness created by its companion statute, DOHSA.
Id. at 29 (citing Kernan v. American Dredging Co., 355 U.S. 426, 430, n. 4, (1958)).
As stated supra, Jones Act claims are also subject to a three-year statute of limitations, which must be complied with as a condition precedent to recovery.
In 1980, Congress adopted 46 U.S.C. § 763a, which provided a uniform three-year statute of limitations for maritime personal injury and wrongful death claims.
46 U.S.C. § 763a, also referred to as The Uniform Statute of Limitations for Maritime Torts, provides: "Unless other specified by law, a suit for recovery of damages for personal injury or death, or both, arising out of a maritime tort, shall not be maintained unless commenced within three years from the date the cause of action accrued."
Usher v. M/V Ocean Wave, 27 F.3d 370, 371 (9th Cir. 1994).
Defendants assert that while wrongful death actions accrue upon death, a condition precedent to bringing such a suit is that the seaman died while possessing a viable cause of action for the injuries which lead to his death-in other words, prior to the expiration of the three-year limitations period for his personal cause of action. Defendants argue that Mr. Meth was diagnosed in November of 1992 with mesothelioma and informed by his doctor that the likely cause was exposure to asbestos, over three years prior to his death and over six years prior to the date that the complaint was filed. Thus, they argue Mr. Meth did not satisfy the condition precedent because he himself no longer had a viable cause of action for his personal injuries at the date of his death; consequently, the limitations period has tolled any wrongful death action brought by his representatives.
Plaintiffs contend that the wrongful death action was timely filed under 46 U.S.C. § 763 a, the general maritime law limitations period, less than three years from the date of Mr. Meth's death on June 12, 1996. Plaintiff argues that Defendants' assertion that a condition precedent requiring Plaintiff to have a viable personal cause of action before a wrongful death action may be considered timely under § 763a is unsubstantiated by the case law. In support of their position, Plaintiff argues that the language of § 763a made no mention of cases that required the condition precedent, and that any case law decided prior to the enactment of § 763a in 1980 which did require fulfillment of such a condition precedent is irrelevant to this issue.
In response, Defendants claim that § 763a neither alters nor eliminates the condition precedent rule, which remains in equal force in both Jones Act and general maritime law/ unseaworthiness claims.
Defendants are correct. The United States Supreme Court case ofFlynn v. New York. N.H. H.R. Co., supra, and its progeny established the rule of law that we follow today.Flynn stands for the proposition that if the expiration of the statute of limitations would have barred the decedent from asserting a claim for personal injuries, it likewise proscribes a cause of action for wrongful death action brought by the decedent's representatives.
Flynn, 283 U.S. at 56.
In Flynn, a railroad employee was injured in 1923 and died from his injury in 1928. Wrongful death and survival actions under FELA were initiated in 1929, more than two years from plaintiff Flynn' s injury but less than two years from Flynn's death. The Court held that "obviously Flynn's right of action was barred", as it was not brought within two years from the date of his injury. As for "the right on behalf of the widow and children" -the representatives' wrongful death claim-Justice Holmes wrote:
Id.
"[T]he argument comes too late. It is established that the present right, although not strictly representative, is derivative and dependent upon the continuance of a right in the injured employee at the time of his death . . . [t]he running of the two years from the time when his cause of action accrued extinguishes it as effectively as a release . . ."
Id.(citing Michigan Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 70 (1913) and Engel v. Davenport. 271 U.S. 33, 38 (1926)).
Numerous cases have applied the Flynn rationale in the context of both Jones Act and general maritime law cases, as well as in non-maritime wrongful death cases. This Court's research divulges no cases contradicting Flynn nor any case law suggesting that the threeyear limitation period of § 763a is incongruous with Flynn's condition precedent requirement.
Miller v. Acheson Industries. et al., N.Y.Supr., No. 403331/97, 1999 WL 509506, at *4.5, Miller, J.(May 26, 1999) (Jones Act and general maritime law survival and wrongful death actions time-barred where plaintiff died more than three years after being diagnosed with leukemia, without commencing a personal injury lawsuit); Selico v. Waterman Steamship Co., E.D.La., No. Civ. A. 99-386, 1999 WL 172958, at *2, Sear, District J. (March 26, 1999) (citing Flynn for the proposition that plaintiffs wrongful death action is derivative of and dependent on. the continuance of the injured employee's personal claims); Souders v. Atlantic Richfield Co., E.D.Pa., 746 F. Supp. 570, 576 (1990) (Jones Act claims barred by 46 U.S.C. § 763a where claim was filed immediately after Plaintiff's death but over three years after plaintiff knew or should have known of his injury and cause); Burns v. Marine Transport Lines. Inc., S.D.N.Y., 207 F. Supp. 276, 278 n. 5 (1962) (citing Flynn and noting "Since plaintiffs decedent's death occurred less than three years after the original injury, there is no need to consider whether the representative's wrongful death action is barred if the decedent's action under the Jones Act was already barred at the time of his death."); Varveris v. United States Lines Company, S.D.N.Y., 141 F. Supp. 874, 875 (1956) (citing Flynn and holding that since decedent had a lawsuit pending for his personal injuries at the time of his death, "there was a `continuance of a right' from which the right to maintain the wrongful death suit is derived"); Coman v. New York Cent. R. Co., 184 F.2d 841, 841-842 (6th Cir. 1950) (citing Flynn and holding that appellant's claim was "derivative and dependent upon the continuance of a right in the injured employee at the time of his death", and was therefore barred); Sloand v. U.S., W.D.N.Y., 93 F. Supp. 83, 90 (1950) (dismissing a suit under the Admiralty Act following the reasoning of Flynn); Purvis v. Luckenbach S.S. Co., S.D.N.Y., 93 F. Supp. 271, 272 (1949) (holding that a Jones Act claim by personal representative for wrongful death is dependent upon existence of a right of action in the decedent for his personal injuries before his death); Miller v. Sperling, N.J. Super. Ct. App. Div., 742 A.2d 572, 578-579 (1999) (citing Flynn and holding husband's wrongful death claim against wife's physician was barred due to wife's failure to bring timely personal injury action during her lifetime).
Flynn was well-reasoned and grounded upon principles of fairness and common sense back in 1931. This Court discerns no logical basis for a departure from Flynn today.
Therefore, since Plaintiffs wrongful death claims under either the Jones Act or under general maritime law are dependent upon the continuance of a right in Mr. Meth at the time of his death, and since Mr. Meth's personal injury claim had already expired when he died, the Plaintiff's wrongful death claim is time-barred under either the Jones Act's three-year statute of limitations, 45 U.S.C. § 56, or the general maritime law's three-year statute of limitations, 46 U.S.C. § 763a.
IV. CONCLUSION
For the foregoing reasons, Defendants' Motion is GRANTED.
IT IS SO ORDERED .