Russell v. Ingersoll-Rand Co.

GAMMAGE, Justice,

concurring and dissenting.

I agree that the Russells’ cause of action under the Survival Statute, Tex.Civ.Prac. & Rem.Code § 71.021, is barred by limitations, but I do not believe their claim under the Wrongful Death Statute, Tex.Civ.Prac. & Rem.Code § 71.001-.011, is likewise barred. Consequently, I join in Parts I and II of the majority opinion, but I dissent in part from the judgment and remainder of the majority opinion.

The majority maintains that no beneficiary can sue under the Wrongful Death Statute unless the decedent had, at the time of death, a right to sue for his or her own injuries. The majority reasons, because Donnon Russell’s suit for injuries against the seven respondents in this cause was barred by limitations when he died, the subsequent action by his widow and children for his wrongful death as a result of those injuries is barred as well. The majority concedes this result is not mandated by the literal terms of the Wrongful Death Statute, but argues it based on judicial interpretation of the statute as applied to other situations. This Court has never before addressed the precise question whether the limitations defense is sufficiently analogous to other defenses that it should receive the same treatment.

The limitations defense should be treated differently from other defenses for three reasons: the text of the governing statutes, the peculiar nature of the limitations defense, and conformity with the law in other jurisdictions. Each of these considerations suggests distinct treatment for limitations, and combined they compel the conclusion that the beneficiaries’ action in this cause is not time-barred.

The statute governing limitations in wrongful death actions provides as follows:

A person must bring suit not later than two years after the day a cause of action accrues in an action for injury resulting in death. The cause of action accrues on the death of the injured person.

Tex.Civ.PraC. & Rem.Code § 16.003(b). I agree with the majority that a limitations statute, in and of itself, cannot create a right of action. See Francis v. Herrin Transp. Co., 432 S.W.2d 710, 712-13 (Tex.1968) 1 ; De Ham v. Mexican National Ry. *359 Co., 86 Tex. 68, 70 , 23 S.W. 381, 381 (1893). It can, however, provide evidence of legislative intent. A wrongful death action, by definition, cannot exist until a person dies. As we noted in Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex.1990), the last sentence of section 16.003(b) “was meant solely to prevent the potential anomaly of limitations running before death.” No statutory language casts doubt on any other potential defense to a wrongful death action. Construing the section 16.003(b) limitations provision (that the wrongful death “cause of action accrues on the death of the injured person) together with the provision in the Wrongful Death Statute permitting actions “only if the individual injured would have been entitled to bring an action for the injury if he had lived,” Tex.Civ.PraC. & Rem.Code § 71.003(a), it is apparent the legislature intended the express limitations language to control. Damages for wrongful death are different from those recoverable for the underlying tort that caused the death. The parties entitled to bring the action are different. When the legislature provided that the Wrongful Death Action “accrues on the death of the injured person,” it acknowledged those differences with respect to the limitations defense. The legislature intended to exclude limitations from the class of defenses that prevent one from being “entitled” to bring the action, because the parties entitled to bring the action and the recoverable elements of damage are different.

Limitations is unlike other defenses that may be asserted against the decedent’s cause of action. The limitations defense does not challenge the merits of the decedent’s underlying cause of action, as do contributory negligence, interspousal immunity, governmental immunity, the fellow servant rule, the Guest Statute, or any other defenses (whether currently existing or not) that we historically have recognized as a bar. Limitations denies a right to recovery, but does not extinguish substan- , tive rights. See, e.g., City of Dallas v. Etheridge, 152 Tex. 9, 14 , 253 S.W.2d 640, 643 (1953) (“statutes of limitation do not

affect the substantive rights of parties; they merely bar the remedy by which one party seeks to enforce his substantive rights”).

This reasoning was applied to the expiration of a decedent’s personal injury limitations period in Hoover’s Administratrix v. Chesapeake & Ohio Railway Co., 46 W.Va. 268 , 33 S.E. 224, 224 (1899):

It is claimed that, the injured having lost his right to sue by reason of the bar of the statute of limitations at the time of this death, the cause of action is thereby destroyed, both as to himself and his administratrix; that death must find him with a cause of action legally enforceable, or she has none. This is undoubtedly true where the cause of action never existed, or is defeated by contributory negligence, or it has been compromised or released; for in such cases there is a complete want of, or destruction by, satisfaction of the cause, not merely of the right of action or remedy.... Generally speaking, however, the statute of limitations acts on the remedy, and takes away the right of action, and while it prevents relief, it does not destroy the cause of action, or the moral obligation on the negligent party to make good the injury caused by his default or neglect.... In personal actions for injury the bar of the statute precludes the remedy, but it does not satisfy the wrong.

Moreover, the defense of limitations does not, like some other defenses, involve the danger of double compensation. At least theoretically, a release, settlement, or judgment provides compensation or the opportunity to be heard on a claim for compensation for the decedent; not so when a claim is barred by limitations. See William L. Prosser & W. Page Keeton, Prosser and Keeton on the Law of Torts § 127 at 957 (5th ed. 1984).

Finally, permitting the Russell beneficiaries to bring this action would accord with the result, if not the exact rationale, in most other jurisdictions. Prosser writes that “the considerable majority of the *360 courts have held that the statute runs against the death action only from the date of death, even though at that time the decedent’s own action would have been barred while he was living.” Id. Other treatises merely note there is a division of authority. 2 The American Law Institute recognizes Prosser’s statement as the majority rule in the Restatement (Second) of Torts, 3 and other scholarly commentators urge it as the better rule. 4 The rule is followed in a number of jurisdictions with statutes based on Lord Campbell’s Act. See Western & Atlantic Railroad Co. v. Bass, 104 Ga. 390 , 30 S.E. 874 (1898); In re Estate of Pickens, 255 Ind. 119 , 263 N.E.2d 151 (1970); Farmer’s Bank & Trust Co. v. Rice, 674 S.W.2d 510 (Ky.1984); Gramlich v. Traveller’s Ins. Co., 640 S.W.2d 180 (Mo.App.1982); Nestelle v. Northern Pacific Railroad Co., 56 F. 261, 262 (C.C.D.Wash 1893); Hoover’s Administratrix v. Chesapeake & Ohio Ry. Co., 46 W.Va. 268 , 33 S.E. 224 (1899); see generally Louisville, Evansville & St. Louis RR. Co. v. Clarke, 152 U.S. 230 , 14 S.Ct. 579 , 38 L.Ed. 422 (1893) (interpreting an Indiana statute). 5

Wrongful death actions should be permitted within two years of the decedent’s death, whether or not the decedent’s own action for his or her injuries would have been time barred on the date of death. I would affirm in part the judgment of the court of appeals but reverse with regard to the wrongful death action and remand the cause to the trial court for further proceedings on that portion of the claim by Russell’s widow and children.

. In Francis the injury and death occurred in Louisiana, and the limitations provision for death actions under Louisiana law barred suit. This court held the Texas limitations statute *359 could not create a cause of action that under choice of law rules did not exist.

. See, e.g., Stuart M. Speiser, 2 Recovery for Wrongful Death § 11:17 at 193-94 (2d ed. 1975); 22A AMJUR.2d Death, § 62 at 174-75 (1988).

."Under most wrongful death statutes, the cause of action is a new and independent one, accruing to the representative or to surviving relatives of the decedent only upon his death; and since the cause of action does not come into existence until the death, it is not barred by prior lapse of time, even though the decedent’s own cause of action for the injuries resulting in death would be barred.” Restatement (Second) of Torts § 899 cmt. c, at 442 (1965). But see Restatement of Torts § 899 cmt. c, at 525 (1939) ("A cause of action for death is complete when death occurs; since, however, the decedent in his lifetime had a cause of action, the cause of action for death does not come into existence if before the death that action for the tortious conduct has been barred by lapse of time.")

. See, e.g., Leon Green, The Texas Death Act, 26 Texas L.Rev. 133 , 461-62 (1947).

. Courts in some states also reach this result by holding their wrongful death statutes are not derivative. See James v. Phoenix General Hospital, Inc., 154 Ariz. 594, 603 , 744 P.2d 695, 704 (1989); Gramlich v. Traveller’s Ins. Co., 640 S.W.2d 180 (Mo.App.1982); Silverman v. Lathrop, 168 N.J.Super. 333 , 403 A.2d 18 (App.Div.1979) (citing Lawlor v. Cloverleaf Memorial Park, Inc., 56 N.J. 326 , 266 A.2d 569 (1968)); Brosse v. Cumming, 20 Ohio App.3d 260 , 485 N.E.2d 803 (1984).