Miss. State Supreme Court bans one of its own from dissent

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The opinion first notes that Gentry held the statute of limitations begins to run on the date of death, but states that "the issue was decided differently in Thiroux v. Austin, 749 So. 2d 1040 (Miss. 1999)." Id. As Kraft points out in her brief, this is an inaccurate statement. In Thiroux, the Court simply held that because the wrongful death statute does not contain a statute of limitations, the limitations period is governed by that of the underlying tort. 749 So. 2d at 1042. It did not hold, as Jenkins erroneously concluded, that the statute of limitations begins to run at the time of the underlying tort. Thus, contrary to Jenkins' assertion, the holdings in Thiroux and Gentry were consistent and there was no need to overrule Gentry.

The Jenkins opinion also relied on Lee v. Thompson, 859 So. 2d 981 (Miss. 2003), Wells v. Radiator Specialty Co., 413 F. Supp.2d 778 (S.D. Miss. 2006), and Beck v. Koppers, Inc., 2005 U.S. Dist. LEXIS 26613 (N.D. Miss. 2005). Yet again, these opinions do not hold that the statute of limitations for wrongful death actions begins to run on the date of the wrongful act. In Lee, the death and the underlying tort occurred on the same date, so there was no question as to when the limitations period began to run. 859 So. 2d at 982-83. This Court simply held that because the underlying tort was murder, the one-year limitations period for intentional torts would apply. Id. at 990.

As for the federal cases, Wells and Beck, the district courts were examining the issue of the discovery rule as it applied to latent injury or disease. Wells, 413 F. Supp.2d 778; Beck, 2005 U.S. Dist. LEXIS 26613. Neither case stands for the proposition that the statute of limitations for wrongful death begins to run on the date of the alleged wrongful conduct. Jenkins reliance on these cases is even more peculiar in light of the fact that each came to opposite conclusions – Wells held that the statute of limitations begins to run on the date of discovery of the injury, while Beck held that the statute of limitations begins to run on the date of discovery of the injury and its cause. Wells, 413 F. Supp.2d 782-83 (interpreting Owens-Illinois, Inc. v. Edwards, 573 So. 2d 704 (Miss. 1990)); Beck, 2005 U.S. Dist. LEXIS 26613 at *4 (interpreting same).

Moreover, on the same day that Jenkins was decided, this Court issues Proli v. Hathorn, 928 So. 2d 169 (Miss. 2006), which unmistakably found that the statute of limitations for a wrongful death action began to run on the date of death and not from the date of injury. In Proli, the patient was injured on May 2, 2002, but did not die until May 18, 2002. Id. at 170. This Court plainly stated, "[h]ere, the statute of limitations began to run on May 18, 2002." Id. at 175.

For these reasons, Jenkins was wrongly decided and this Court's holding in Gentry should be reinstated. As Gentry stated, "it is elementary that the 'right to sue' did not and could not have vested until [the decedent] died. Our wrongful death statute provides a cause of action to the survivors of those who die as a result of wrongful conduct. A person cannot qualify as a 'survivor' until he survives someone." 606 So. 2d at 1121.1 To hold otherwise would mean that the statute of limitations for a wrongful death action could expire before death. Such a result is unfair, illogical, and contrary to the vast majority of jurisdictions which hold that the limitations period cannot begin to run until death. See M.C. Dransfield, Annotation, Time from which Statute of Limitations Begins to Run Against Cause o Action for Wrongful Death, 97 A.L.R. 2d 1151 ("The great majority of the cases have taken the view that the date of death is controlling.").2

In addition, as recently as November 2007, this Court relied on Gentry for the proposition that "in a wrongful death case the cause of action does not accrue until the death of the negligently injured person." Bullock v. Lott, 964 So. 2d 1119, 1126 (Miss. 2007) (internal quotations and citations omitted). Bullock remarked in a footnote that Gentry had been overruled, and the case was being cited for the distinction between "accrue" and "occur." However, it would be inconsistent to hold that a wrongful death action accrues for statute of limitations purposes when the injury occurs, but accrues for venue purposes upon death. In Burgess v. Lucky, 674 So. 2d 506, 511-512 (Miss. 1996), another case relied upon by Bullock, this Court specifically refused to accept such a distinction.3

For these reasons, the Court must reinstate Gentry. This case would provide that opportunity, but the Court has refused.

1 Indeed, the original wrongful death statute provided a statute of limitations of "one year after the death o such deceased person." Long v. McKinney, 897 So. 2d 160. app. A (Miss. 2004) (quoting Chapter 61, art. 48 of the 1857 Mississippi Code).

2 See e.g., James v. Phoenix Gen. Hosp., 744 P.2d 695, 705 (Ariz. 1987) ("The wrongful death cause of action can accrue only at the death of the party injured") (citations omitted) (emphasis supplied); Horwich v. Superior Court, 980 P.2d 927, 935 (Cal. 1999) ("a wrongful death action has its own statute of limitations, which runs from the date of death rather than any antecedent injury") (emphasis supplied) (citations omitted); Rauschenberger v. Radetsky, 745 P.2d 640, 643 (colo. 1987) ("wrongful death claim must be filed within two years from the date of the alleged negligence resulting in death is discovered, or in the exercise of reasonable diligence should have been discovered, or within one year from such death, whichever event is later"); Fulton County Adm'r v. Sullivan, 753 So. 2d 549, 552 (Fla. 1999) ("a cause of action for wrongful death accrues on the date of death") (emphasis supplied) (internal citations omitted); Miles v. Ashland Chem. Co., 261 Ga. 726, 727-728 (Ga. 1991) ("an action for wrongful death 'accrues' to the heirs at death") (emphasis supplied) (internal citations omitted); Chapman v. Cardiac Pacemakers, 105 Idaho 785, 786-787 (Idaho 1983) ("the law is clear that a cause of action for wrongful death accrues on the death of the injured party, and not before") (emphasis supplied) (citations omitted); Farmers Bank & Trust Co. v. Rice, 674 S.W.2d 510, 512 (Ky. 1984) ("the statute of limitations for wrongful death actions runs from the death of the decedent, even though there was no viable action for personal injury or medical negligence or malpractice at the time of death") (emphasis supplied); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 (Tex. 1990) ("the time of death should be taken as the point from which limitation should begin to run") (Tex. 1990); Atchison v. Great W. Malting Co., 766 P.3d 662, 665 (Wash. 2007) ("wrongful death actions clearly accrue at the time of death) (emphasis supplied).

Other jurisdictions distinguish between "survival" claims (those damages the decedent cold have recovered from the time of the injury) and "wrongful death" claims (those damages the beneficiaries may recover for their own injuries), with each claim having its own statute of limitations. See e.g. Pastierik v. Duquesne Light Co., 514 Pa. 517, 520 (Pa. 1987).

3 In Burgess, the Court was asked to apply the general venue statute, which, at the time, provided that a wrongful death action may be brought "in the county where the cause of action may occur or accrue." 674 So. 2d at 508. Applying a Missouri court's line of reasoning, the Court stated that "Lucky's cause of action did not accrue for statute of limitations purposes in Forrest County, the place where the underlying negligence and injuries occurred." Id. at 511. The Court went on to say that "[w]hile this is a viable alternative to the venue issue, it is not consistent with this Court's ruling in Flight Line." Id. at 512 (referencing Flight Line, Inc. v. Tanksley, 608 So. 2d 1149 (Miss. 1992)).