Frost v. AmSafe Commercial Products, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:21-cv-156-MOC-WCM

KRISTINA RENE FROST and )

GARY ALLEN MAYS, )

Individually and as Personal )

Representatives of the Estates of )

Shawna Rene Mays and )

Tristan Allen Mays, )

) ORDER

Plaintiffs, )

)

vs. )

)

AMSAFE COMMERCIAL )

PRODUCTS, INC., et al., )

)

Defendants. )

____________________________________)

THIS MATTER comes before the Court on a Motion for Judgment on the Pleadings,

filed by Defendants AmSafe Commercial Products, Inc., AmSafe Inc., Transdigm Group, Inc.,

and Shield Restraint Systems, Inc., pursuant to Rule 12(c) of the Federal Rules of Civil

Procedure. (Doc. No. 66).

I. BACKGROUND

Plaintiffs Kristina Rene Frost and Gary Allen Mays’ (“Plaintiffs”) claims against

Defendants arise out of a fatal vehicle fire that occurred on July 3, 2018. Tragically, the fire took

the lives of Plaintiffs’ children, Shawna Rene Mays and Tristan Allen Mays. Plaintiffs

have sued Defendants seeking to recover damages associated with and related to the tragic deaths

of Shawna and Tristan.

Plaintiffs allege that on July 3, 2018, Ms. Frost drove a 2004 Buick Rendezvous through

the Great Smoky Mountains when the vehicle caught on fire. (See Plaintiffs’ First Amended

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Complaint (“FAC”) at ¶¶ 2–3). Plaintiffs contend that at the time of the fire, her son, Tristan

Allen Mays, rode in a car seat manufactured by Evenflo and containing a crotch buckle

manufactured by Defendants.1 (Id. at ¶¶ 3, 21). Plaintiffs allege the car seat buckle was

“defective” and, purportedly because of that alleged defect, “[a]fter several attempts, [Ms. Frost]

was unable to get the defective buckle to release for her to free Tristan from the Evenflo car seat

and exit the vehicle.” (Id. ¶ 23). Plaintiffs further contend that the alleged delay in unbuckling

Tristan from the car seat “cost [Ms. Frost] valuable time which could have been used unbuckling

and getting the children and herself out of the vehicle and to safety away from the flames.” (Id.).

As described in Plaintiffs’ Complaint, “Tragically, neither child survived the horrific event.”

(Id.). Tristan died at the scene as a result of the fire. (Id. ¶ 3). Shawna died the following day as a

result of injuries sustained from the fire. (Id. ¶ 4).

Plaintiffs asserts numerous claims against Defendants. Specifically, Plaintiffs bring

claims for Negligence, Gross Negligence, Recklessness (Count 1); Products

Liability: Improper Design (Count 2); Fraud by Non-disclosure (Count 3); Fraud by

Misrepresentation (Count 4); Wrongful Death (Count 5); Survival Claims under North

Carolina’s Survivorship Statute (Count 6); Bystander Claims (Count 7); and Products Liability:

Failure to Warn (Count 8). Other than Plaintiffs’ claims associated with Ms. Frost’s personal

injuries, all of the damages Plaintiffs seek to recover in this litigation arise out of the deaths of

Shawna and Tristan.

On October 14, 2022, Defendants filed the pending motion for judgment on the

pleadings. (Doc. No. 66). Plaintiffs filed a response on November 28, 2022, and Defendants filed

1 The Court previously set out the detailed relationships between the named Defendants in its

prior Order denying Defendants’ motion to dismiss and will not do so here. See (Doc. No. 49).

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a Reply on December 5, 2022. (Doc. Nos. 75, 80). This matter is ripe for disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the

pleadings when it would not delay trial. FED. R. CIV. P. 12(c). “A motion for judgment on the

pleadings under Rule 12(c) is assessed under the same standards as a motion to dismiss under

Rule 12(b)(6).” Occupy Columbia v. Haley, 738 F.3d 107, 115 (4th Cir. 2013) (citing Edwards v.

City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)). Therefore, under Rule 12(c), a claim must

be dismissed when a claimant’s allegations fail to set forth a set of facts which, if true, would

entitle the claimant to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009) (holding that a claim must be facially plausible in order to

survive a motion to dismiss). When considering a motion for judgment on the pleadings, as with

a motion to dismiss, the Court is “obliged to accept the complaint’s factual allegations as true

and draw all reasonable inferences in favor of the plaintiffs.” Feminist Majority Found. v.

Hurley, 911 F.3d 674, 685 (4th Cir. 2018). “However, the court need not accept the legal

conclusions drawn from the facts, and need not accept as true unwarranted inferences,

unreasonable conclusions, or arguments.” Monroe v. City of Charlottesville, Va., 579 F.3d 380,

385–86 (4th Cir. 2009) (internal citations and quotations omitted).

III. DISCUSSION

A. Plaintiffs’ Claim Under North Carolina’s Wrongful Death Act, N.C. GEN. STAT. §

28A-18-2 (Count 5)

In support of their motion for judgment on the pleadings, Defendants first argue that

Plaintiffs’ claims brought under North Carolina’s wrongful death statute are time-barred. For the

following reasons, the Court agrees.

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Count 5 of Plaintiffs’ Complaint asserts a cause of action under North Carolina’s

wrongful death statute, N.C. GEN. STAT. § 28A-18-2, seeking to recover damages from

Defendants for the deaths of Shawna and Tristan. North Carolina law establishes a two-year

statute of limitations for claims asserted under the wrongful death statute. The governing statute

specifically states claims must be brought “[w]ithin two years . . . [for] [a]ctions for damages on

account of the death of a person caused by the wrongful act, neglect or fault of another under

G.S. 28A-18-2; the cause of action shall not accrue until the date of death.” N.C. GEN. STAT. § 1-

53(4). Accordingly, a claim under North Carolina’s wrongful death statute is timely when “(1) it

is instituted within two years of decedent’s death and (2) on the date of [the decedent’s] death the

decedent’s claim for bodily injury would not have been time-barred.” Dunn v. Pacific Employers

Ins. Co., 332 N.C. 129, 133 (1992); see also Anderson v. Southern Health Partners, Inc., 4:20-cv-

95, 2020 WL 6326098, at *3 (E.D.N.C. Oct. 26, 2020) (“‘A wrongful death claim . . . accrues

upon the decedent’s death and remedies misconduct causing death specifically.’”) (quoting

Taylor v. Norfolk S. Ry. Co., 86 F. Supp. 3d 448, 453 (M.D.N.C. 2015)).

Here, Plaintiffs allege that the fire that resulted in Tristan and Shawna’s deaths occurred

on July 3, 2018. (See FAC ¶¶ 2–3). Plaintiffs allege that Tristan died at the scene of the fire on

July 3, 2018. (See id. ¶ 3). Plaintiffs further allege that Shawna died the following day, July 4,

2018, as a result of injuries sustained during the fire. (See id. ¶ 4). Accordingly, the two-year

statute of limitations for Plaintiffs’ wrongful death claims for Tristan and Shawna accrued on

July 3, 2018, and July 4, 2018, respectively. As a result, the claims asserted on their behalf had to

be commenced by no later than July 3, 2020, and July 4, 2020, to be timely asserted within the

statute of limitations. Plaintiffs did not file their lawsuit against Defendants until June 11, 2021.

(See Complaint, Doc. 1). Accordingly, Plaintiffs filed their wrongful death claim against

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Defendants nearly a full year after the applicable statute of limitations expired. Thus, Plaintiffs’

wrongful death claim is barred by the statute of limitations and must be dismissed with prejudice.

Plaintiffs present two arguments in their opposition brief to try to avoid the time-barred

nature of their wrongful death claim. First, citing N.C. GEN. STAT. § 1–17, Plaintiffs argue that

the two-year statute of limitations was “tolled” because the decedents were minors at the time of

the fire resulting in their deaths. See N.C. GEN. STAT. § 1–17 (stating that a statute of limitation

does not begin to run against a minor until the minor reaches age 18). Plaintiffs further contend

that “the North Carolina courts, however, have developed an exception to this statute when the

infant is represented by a guardian.’” (Opposition Brief at p. 4). Plaintiffs argue that therefore

“the statute of limitations in this matter did not begin to run until the appointment of the

appropriate representative of the estates of Shawna Mays and Tristan Mays on October 22,

2022.” (Id.).

Plaintiffs’ argument is not in accordance with North Carolina law. It is well settled that

the tolling provision in N.C. GEN. STAT. § 1–17 does not apply to wrongful death claims because

the parties in a wrongful death claim are the representatives of the estates, not the minor

decedents. Dillard v. Lincare, Inc., No. 1:17cv356, 2017 WL 11049625, at *1 (M.D.N.C. July

19, 2017) (“The general rule [of tolling under N.C. GEN. STAT. § 1–17] ... is not applicable ...

because the minor children are not plaintiffs. Rather, the plaintiff ... is the [qualified

representative] of the estate, who acts ‘in the capacity of a trustee or agent of the beneficiary of

the estate.’”) (quoting Boomer v. Caraway, 116 N.C. App. 723, 726 (1994), aff’d, 342 N.C. 186

(1995) (per curiam)).

Second, Plaintiffs argue that their claim was timely filed under the “savings” provision in

N.C. R. CIV. P. 41(a), which provides that “[i]f an action commenced within the time prescribed

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therefor[e], or any claim therein, is dismissed without prejudice under this subsection, a new

action based on the same claim may be commenced within one year after such dismissal . . . .”

Plaintiffs contend that this lawsuit is timely, because Plaintiffs filed this action within one year of

voluntarily dismissing a previous lawsuit against AmSafe in Ohio arising out of the same car fire

incident. For the following reasons, Plaintiffs’ argument lacks merit.

The Court first notes that Plaintiffs do not cite any cases showing that the savings

provision applies where a lawsuit was originally filed in a state other than North Carolina. In any

event, to the extent that the North Carolina savings provision even applies to a lawsuit filed in a

different state, it is undisputed that Plaintiffs filed their claims against AmSafe in the Ohio

litigation on February 25, 2021, well after the two-year statute of limitations expired in July of

2020. Because that claim was not timely commenced against AmSafe, Plaintiffs cannot rely on it

as a viable basis to save their time-barred wrongful death claim in this lawsuit. Further, Plaintiffs

fail to address how the savings provision, if it applied, could be used as a basis for the claim

against the remaining Defendants who were not parties in the Ohio litigation.

In sum, because Plaintiffs’ lawsuit against Defendants was filed well beyond the date of

the fire and the tragic death of Plaintiffs’ children, Plaintiffs’ wrongful death claim is barred by

the applicable statute of limitations and, as a result, Count Five of Plaintiffs’ First Amended

Complaint must be dismissed with prejudice.

B. Plaintiffs’ Claim under North Carolina’s Survivorship Statute (Count 6), and

Plaintiffs’ Remaining North Carolina Common Law Claims as They Relate to Damages

Associated with the Deaths of Shawna and Tristan (Counts 1, 2, 3, 7, and 8)

In support of their motion for judgment on the pleadings, Defendants next argue that

Plaintiffs’ Claim under North Carolina’s survivorship statute (Count 6), and Plaintiffs’ remaining

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North Carolina common law claims as they relate to damages associated with the deaths of

Shawna and Tristan (Counts 1, 2, 3, 7, and 8) must be dismissed because they are encompassed

by the wrongful death statute claims. For the following reasons, the Court agrees.

As noted, Plaintiffs also assert the following North Carolina common law claims against

Defendants: Negligence, Gross Negligence, and Recklessness (Count 1); Products Liability:

Improper Design (Count 2); Fraud by Non-disclosure (Count 3); Fraud by Misrepresentation

(Count 4); Bystander Claims (Count 7); and Products Liability: Failure to Warn (Count 8).

Under North Carolina law, “any common law [survival] claim which is now encompassed by the

wrongful death statute must be asserted under [the North Carolina wrongful death statute].”

Christenbury v. Hedrick, 32 N.C. App. 708, 712 (1977). A claim is “encompassed by” the North

Carolina wrongful death statute where it seeks “items of damage which might conceivably have

been ... includable in an action for damages for death by wrongful act.” Id. at 713. See, e.g., State

Auto Ins. Co. v. Blind, 185 N.C. App. 707 (2007); Keys v. Duke Univ., 112 N.C. App. 518, 520

(1993) (same); Latka v. Miles, 7:14-cv-10-FL, 2015 WL 1410378, at *7 (E.D.N.C. Mar. 26,

2015) (same); Knibbs v. Momphard, 30 F.4th 200, 226 (4th Cir. 2022) (“North Carolina’s

wrongful death statute provides a remedy to the personal representative of a decedent’s estate

when the decedent would have otherwise been entitled to damages caused by another person’s

‘wrongful act, neglect[,] or default.’ (citation omitted) This statutory right supersedes all

common law claims that could have been asserted.”) (citing Chistenberry, 32 N.C. App. at 708).

The types of damages recoverable under the North Carolina wrongful death statute are:

(1) Expenses for care, treatment and hospitalization incident to the injury resulting in

death;

(2) Compensation for pain and suffering of the decedent;

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(3) The reasonable funeral expenses of the decedent;

(4) The present monetary value of the decedent to the persons entitled to receive the

damages recovered, including but not limited to compensation for the loss of the

reasonably expected;

a. Net income of the decedent,

b. Services, protection, care and assistance of the decedent, whether voluntary or

obligatory, to the persons entitled to the damages recovered,

c. Society, companionship, comfort, guidance, kindly offices and advice of the decedent

to the persons entitled to the damages recovered;

(5) Such punitive damages as the decedent could have recovered pursuant to Chapter 1 D

of the General Statutes had he survived, and punitive damages for wrongfully causing the

death of the decedent through malice or willful or wanton conduct, as defined in [N.C.

Gen.Stat.] 1D–5;

(6) Nominal damages when the jury so finds

N.C. GEN. STAT. § 28A–18–2(b).

As it relates to the deaths of Shawna and Tristan, the damages sought by Plaintiffs

through each Plaintiffs’ North Carolina common law claims are the same as the damages they

seek to recover under the North Carolina wrongful death statute. Therefore, Plaintiffs’ North

Carolina common law claims as they relate to the deaths of Shawna and Tristan in Plaintiffs’

Counts 1, 2, 3, 4, 5, 7, and 8 must be dismissed. Accord Anderson, 2020 WL 6326098, at *3

(dismissing Plaintiff’s negligence claim as encompassed by the wrongful death statute); Keys,

112 N.C. App. at 522 (dismissing loss of consortium claim as encompassed by the wrongful

death statute); Finch v. BASF Catalysts, LLC, No. 1:16cv1077, 2018 WL 3941978, at *5

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(M.D.N.C. Aug. 16, 2018) (dismissing loss of consortium claim as encompassed by the wrongful

death statute).

Similarly, Plaintiffs’ claim under North Carolina’s survival statute, N.C. GEN. STAT. §

28A-18, is encompassed by the wrongful death statute and must be asserted under that statute,

because Plaintiffs unambiguously allege that a single event attributed to Defendants resulted in

Shawna’s and Tristan’s deaths. Plaintiffs seek recovery through the survival statute for

“reasonable compensation for the pain and suffering, while conscious, undergone by Shawna

[and Tristan] during the period intervening between the time of [their] injury and [their] death.”

(FAC ¶¶ 111, 113). “‘[W]hen a defendant has caused a decedent injuries that ultimately result in

death, any survivorship claim merges into the wrongful death claim, with the latter providing the

only remedy.” Anderson, 2020 WL 6326098, at *3 (internal quotation marks omitted) (quoting

Taylor, 86 F. Supp. 3d at 454; Bolick v. S. Ry. Co., 138 N.C. 370 (1905)).

North Carolina courts have recognized an exception to this rule in a very narrow set of

circumstances not applicable to this case. See Alston v. Britthaven, Inc., 177 N.C. App. 330, 339

(2006)). In Alston v. Britthaven, Inc., an elderly man suffering from Alzheimer’s disease died at

an assisted living facility. Id. at 331–32. The plaintiff alleged the assisted living facility failed to

adequately provide care for the patient and, among other issues, the patient developed pressure

sores and skin ulcers. Id. The patient’s estate asserted claims against the assisted living facility

for wrongful death and survivorship claims for the patient’s pain and suffering (and other

compensatory damages) before his death.

At trial, the plaintiff presented evidence that the patient’s death was caused by an

infection in his bloodstream, which plaintiff attributed to the pressure sores and skin ulcers. Id.

The defendant presented evidence that the patient’s death was due to complications from the

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patient’s Alzheimer’s condition. Id. The issue addressed on appeal in Alston was whether it was

proper for the jury to receive instructions on both the wrongful death claim and the survivorship

claim. The court began its analysis by recognizing that North Carolina courts have previously

held that where “the complaint appeared to allege only a single claim for wrongful death, a

plaintiff had not stated a claim for a survivorship action.” Id. at 336 (citing Locust v. Pitt Cnty.

Mem’l Hosp., 154 N.C. App. 103, 107 (2002), rev’d on other grounds, 358 N.C. 113 (2004); In

re Estate of Parrish, 143 N.C. App. 244, 255 (2001)). The Alston court went on to state, “The

instant case is distinguishable from these cases in several ways.” Id. at 337. The Alston court

ultimately held that, based on the specific circumstances in that case, it was appropriate for the

plaintiff to present alternative claims under the wrongful death statute and survivorship claims.

The court reasoned that a jury could reject the plaintiff’s wrongful death claim (i.e., accept the

defense that the death was caused by complications from the patient’s Alzheimer’s rather than

anything attributed to the assisted living facility’s conduct), but still conclude that the assisted

living facility was responsible for damages under the survivorship statute for the patient’s

injuries and suffering from his pressure sores and skin ulcers before his death. Id. at 339–41.

Since Alston, North Carolina courts have clarified that allowing alternative claims under

the survivorship and wrongful death statutes are limited to unique circumstances such as those

presented in the Alston case. Therefore, even after Alston, North Carolina law still holds that

where a case involves allegations of a single wrongful act leading to the death and corresponding

pain and suffering before the death, the survivorship claim merges with and is encompassed by

the wrongful death claim. See Blind, 185 N.C. App. at 712; Taylor, 86 F. Supp. 3d at 454;

Anderson, 2020 WL 6326098, at *3; McDonald v. Suggs, No. 5:07cv339, 2008 WL 2129860, at

*5 (E.D.N.C. May 20, 2008).

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Here, Plaintiffs’ Complaint unambiguously alleges a singular wrongful act by Defendants

which caused the deaths of Shawna and Tristan as well as their alleged pain and suffering before

their deaths. Unlike in Alston, there is no differing or alternative theory asserted by Plaintiffs

against Defendants for the decedents’ alleged injuries or pain and suffering before their deaths.

Thus, the survivorship claim is clearly encompassed by the wrongful death statute and must be

dismissed. Moreover, the fact that Defendants have included affirmative defenses such as

potential intervening or superseding causal events does not change that analysis. Those

intervening or superseding events would apply as the same defense to both the claims for pre-

death suffering and as defenses to the causal event of death.

For the foregoing reasons, Plaintiffs’ claims under the wrongful death act (Count 5) and

survivorship statute (Count 6) are dismissed in their entirety. To the extent that the remainder of

Plaintiffs’ claims seek relief associated with or arising out of the death of Shawna Mays and

Tristan Mays, those claims are also dismissed with prejudice. At this time, the Court will not

dismiss any claims asserted by Kristina Frost for her own personal injuries that she allegedly

incurred as a direct and proximate result of Defendants’ conduct. Therefore, those claims remain

viable.

IV. CONCLUSION

For the reasons stated herein, the Court grants Defendants’ motion for judgment on the

pleadings. To this extent, Plaintiffs’ claims under the wrongful death act (Count 5) and

survivorship statute (Count 6) are dismissed with prejudice. To the extent that the remainder of

Plaintiffs’ claims seek relief associated with or arising out of the death of Shawna Mays and

Tristan Mays, those claims are also dismissed with prejudice. These include Negligence, Gross

Negligence, and Recklessness (Count 1); Products Liability: Improper Design (Count 2); Fraud

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by Non-disclosure (Count 3); Fraud by Misrepresentation (Count 4); Bystander Claims (Count

7); and Products Liability: Failure to Warn (Count 8). As it relates to the deaths of Shawna and

Tristan, the damages sought by Plaintiffs through each of these claims are the same as the

damages they seek to recover under their wrongful death claim, and these claims are therefore

dismissed with prejudice.

All other claims remain viable, including any claims asserted by Kristina Frost for her

own personal injuries she allegedly incurred as a direct and proximate result of Defendants’

conduct.

ORDER

IT IS, THEREFORE, ORDERED that:

(1) Defendants’ Motion for Judgment on the Pleadings, (Doc. No. 66), is GRANTED.

Signed: March 28, 2023

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Max O. Cogburn i yg

United States District Judge Feat gg ta

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