-: SJC-13282 Michael Cuddy and another
v Philip Morris USA Inc.,
and SJC-13346 Mary Fuller and another
v R.J. Reynolds Tobacco Company and others.
-: Great, okay, let's start with Attorney Moxon.
-: Thank you, Chief Justice Budd.
May it please the court, I'm Shea Moxon
on behalf of the plaintiff, Grace Fabiano,
personal representative of the estate of Ralph Fabiano.
Ms. Fabiano timely filed her wrongful death action
within three years after Mr. Fabiano died.
But the trial court dismissed it because the time
for filing a personal injury action had expired
before Mr. Fabiano passed away.
And that was error.
And this court should reverse
because the legislature has made its intent clear
that the only time limit has any bearing
on the viability of a wrongful death action
is the one set forth in the wrongful death statute
three years after death.
-: Well, what if, as we have held,
that this is a derivative action?
I mean, how do we reconcile the derivative nature
of the wrongful death action
with this three-year statute of limitations
that suddenly revives upon death
an action that has been dormant.
-: As I discussed in our briefs,
the principle of derivativeness is useful
to address issues that have not been
specifically considered by the legislature
or addressed in the wrongful death statute.
But here we have a pretty unique situation in Massachusetts
where in addition to the plain language of the statute,
we have the fact that this legislature
at one time put a provision in the statute
that clearly meant exactly the same thing
that the trial court ruled here,
and then subsequently deleted that very provision
in 1981 amendment to the statute.
And I'm referring to the provision that said,
no recovery shall be had under this section
for a death that does not occur
within two years after the injury which caused the death.
-: Isn't it clear, though,
from the context that that was to address
the discovery rule?
-: No, Your Honor, because this was put in the statute
in 1958, the same legislation that
created most of the statute in its current form.
So it was added in the statute in 1958
when no one was even thinking about discovery rule.
I don't think it was even discussed or considered
until around 1974.
And the discovery rule was created by the court originally.
But-
-: What I mean by that is a two-year...
A rigid timeframe doesn't accommodate a discovery rule.
-: Well, yes, I submit that in 1958,
no one was considering the discovery rule,
but some significant things that were true in 1958
is that the statute of limitations
for a personal injury claim was two years.
And because there was no discovery rule in effect,
that ran from the date of injury.
So when the legislature initially required
that the death had to occur within two years for,
two years after injury to have a wrongful death claim,
that meant precisely that there was no wrongful death action
if the personal injury limitations period ran out
before the decedent died.
And so by deleting that provision in 1981,
the legislature made clear its intent
that that shall no longer be the case,
and it- -: You seem to be having
a debate with opposing counsel on these out-of-state cases
where the action's considered derivative,
wrongful death cases, and- -: Yes.
-: And their view is that in every case,
I can't remember how many jurisdictions, maybe 18,
in every case where the action is derivative,
the statute of limitations is tied to the action
that the decedent would have.
And you refute that and say that
their take on those cases is wrong.
Could you help us out on that please?
-: Yes, in the instance of four states,
West Virginia has rejected
the defendant's proposition completely.
And there are,
I've discussed the Hoover's administration,
Hoover's administratics case,
which thoroughly rejects the defendant's position.
And there are later West Virginia cases that made clear
that West Virginia is a derivative state.
Colorado has rejected the defendant's position,
and Colorado has also made clear
that it's a derivative state.
In Mississippi I believe the defendants
have misunderstood the case law somewhat.
It's a little confusing slightly,
because in Mississippi survival claims
and true wrongful death claims are both brought
under their wrongful death statute.
But Mississippi has said that it's only survival claims
that need to be initiated within the same limitations period
as for a personal injury action,
whereas, for true wrongful death claims
for the survivor's own damages,
that period does not commence running until death.
And then in Connecticut, kind of a similar divide,
Connecticut says that only wrongful death cases
based on a statutory theory of liability
have to be initiated
within the underlying limitations period.
But that's not true for those that are based on common law.
But also another significant point about-
-: Before you- -: Those are the holdings.
Can you tell us the rationale?
How do we reconcile this three-year statute of limitations
with the action being defined derivatively?
-: Oh-
-: I know what you've just done is summarize
the out-of-state holdings, but what is the rationale?
-: The rationale in West Virginia,
the rationale was that the requirement to be able to file
for the decedent to have been able to sue
only had to exist at some time,
not necessarily at the very moment of death.
And also the rationale that statutes of limitation
only act on the remedy, not the right.
It's a substantive procedural distinction
that the expiration of a limitations period
does not extinguish a substantive right.
In Colorado, it's likewise that-
-: So here the substantive right was extinguished
for the decedent.
-: Well, it's...
Well, I submit, no, but,
I want to get back to the point that before we...
Without even needing to get into the more abstract principle
of substantive versus procedural,
again, it's a significant point that the legislature
has specifically considered this very issue
that at one time-
-: Right, so I understand the legislative history
perhaps being on your side or perhaps being a response
to the discovery rule,
but the action itself is tied to the individual
who has been injured, and that, in this case, has expired.
-: Well, it's...
Well, acknowledging that our main argument
is based on the legislative history,
the point discussed in the West Virginia case,
and that's consistent with Massachusetts law,
is that statute- -: Before you go
outside the state,
can I follow up on Justice Wendlandt's question, though?
'Cause we also have the word under the circumstances, right?
That appears in the statute.
And so you recover under the circumstances of
if the injured party could recover,
then the wrongful death plaintiff could recover.
Doesn't under the circumstances,
isn't that consistent with the derivative language
and plain language,
and that under the circumstances language
has been in effect since the beginning, right?
It's not changed.
It preexisted the 1981 amendment, right?
-: Well, yes, but in that very same legislation in 1958,
which added that clause
to the under such circumstances clause to the statute,
the legislature could not have possibly thought
that that would mean that the expiration
of the time to file a personal injury action
during the decedent's lifetime would bar
a wrongful death action
because it found it necessary to put
a whole different provision in the statute
towards the end that meant that very same thing,
which is that provision that said,
no wrongful death remedy is available for a death
that does not occur within two years after injury.
-: But doesn't that, I mean, the trial,
the motion judge doesn't say that it has to happen within...
It's not the same provision.
It's within three years of the time in which it...
As long as you met the statute of limitations,
you have three years, right?
That's different from this 1981 provision,
which had a sort of a rigid end date.
I'm just tryin' to make sense of all the different language.
-: Yes, yes.
And thank you.
My point is that in 1958,
that provision that was later deleted
had precisely the same meaning as that the expiration
of the limitations period for a personal injury action
during the decedent's lifetime would bar
a wrongful death action,
because in 1958 that period was two years after injury.
-: But wasn't it an additional...
Okay, if we're back in 19...
Before the 1981 amendment.
So you had to do it with under the circumstances.
You had to meet the under the circumstances
and you had to meet that two-year provision, right?
You had to not only be under the circumstances,
but it had to be within two years of the injury, right?
-: Yes. -: So it was both.
And then they eliminated the second part of it,
but they kept the first part in, right?
-: Yes, and my point was that in 1958
when the legislature wrote
the under such circumstances clause,
it could not have possibly thought that that meant
the expiration of the personal injury limitations period
during the decedent's lifetime
would bar wrongful death action
because it had written another clause
that said that far more directly and explicitly,
being that no recovery shall be had under this section
for a death that does not occur
within two years from injury.
-: So, counsel, otherwise,
and correct me if I'm wrong,
if we don't adopt your position,
what would happen is that if a person figures out
they have lung cancer from smoking,
and they have a long, long period before they die,
they could never have a wrongful death suit.
-: That's correct.
That's correct.
And that is one of the reasons why
the legislature could have reasonably decided
to no longer follow that rule that they adopted in '58.
They may have considered that, in those circumstances,
that a person with a disease like that
should not be forced to have to file a personal injury claim
to possibly preserve a wrongful death claim.
The legislature decided that
families shall have a remedy for death
and that the only time limit
that bears on the availability of the remedy
is the one that still remains in the statute today,
three years after death,
without any connection to the time of injury
or any other statute of limitations.
-: So that would be true even if there were
an accident at the corner of Main and Elm 10 years ago,
and the plaintiff could unequivocally show
causation as it relates to death,
even though the statute of limitations
on the underlying claim of the would-be decedent
elapsed seven years ago that the wrongful death statute
would resurrect that cause of action.
-: Yes, although with resurrect, again-
-: All right, I think resurrect...
I hear your point. -: He likes that one.
Let me take that back.
That's sort of a term that maybe doesn't
make the point as well.
The cause of action would still exist
for wrongful death. -: Yes, yes.
-: Even though the decedent's cause of action
on the underlying tort expired years ago.
-: Yes, yes.
And because the legislature has made that decision,
we submit, also because a statute of limitations
does not extinguish the underlying substantive right,
and if the legislature decides that that allows
too long of a tail for liability,
the legislature always could enact a statute of repose
as it has for architect and medical malpractice cases.
But at present, it has made its decision
that the only time limit that applies
to a wrongful death action is three years after death.
No other time limit or the date of injury
has any bearing on it.
And I'm out of time, so I thank the court,
I stand on my briefs for any points I didn't reach,
and I ask the court to reverse.
-: Thank you.
-: Okay, Attorney Rainier.
-: Good morning, I'm Andrew Rainer.
I'm the Litigation Director
for the Public Health Advocacy Institute,
and I represent the plaintiff in the Fuller case,
which is the other case before the court.
In the three minutes allotted to me,
I want to urge the court not to decide the case
based on a theoretical construct
about what does derivative mean,
because that actually diverges state to state,
and also not to decide the case
based on how other wrongful death statutes
have been interpreted,
but rather to decide the case based on
the unique legislative history of this case,
which we've been discussing.
And Justice Kafker, on page 44 of my opening brief,
I have the statute as, more or less, it appeared in 1958,
and it had three clauses.
It had the under such circumstances clause,
it had the no recovery shall be had clause,
and it had, for the first time,
the limitations period based on death.
So these were all new in 1958.
And what my brother was, I think, attempting to say
is the second clause meant what the first clause,
you were being urged to interpret the first clause
to mean what the second clause meant.
Scott Kafker: First clause being which one-
-: The under such circumstances clause.
That's what- -: And the second clause being?
-: I'm sorry, the second clause being
the no recovery shall be had for an injury
that occurred within two years of death.
That's the one that was repealed.
-: But they kept the under the circumstances, so.
-: But my point, my point,
and I think my brother's point is
if that meant what you are being...
You are asked to hold that the statutes
would be interpreted exactly as this provision held.
And what I mean by that,
I mean that it's said that you couldn't,
if the person died after
the personal injury statute of limitations had run,
you couldn't bring it.
But if the person died within it, you could.
And that is exactly the position that
the appellates are taking- -: What does under
the circumstances mean?
'Cause it has to have some meaning.
-: Well, on that, Your Honor,
I would ask you to look at the prior version of the statute
from 1949,
because what you'll find there is
there was a separate provision for
if a death was caused by a street car.
There was a separate provision for if a death was caused
on a public way, but not by a street car.
There was a separate provision for if a death was caused
by an employer.
And so in 1958, they repealed those other distinctions
and left only,
and basically captured that
in the under such circumstances clause.
So I respectfully submit it was not...
It was not the interpretation
that you were being asked to hold today.
It is not...
That language was not-
-: Right, but I can't remember if you or your brother
makes the argument that under the circumstances mean, okay,
comparative negligence or...
If they couldn't recover, but I don't,
I don't know if that's correct, but I'm just trying to,
because the only language that seems to track
the derivative language is under the circumstances,
and also it's hard to try to figure out what the,
I mean, the legislature didn't have the benefit
of our decision in 2022, or whatever it is,
when it wrote the statute of limitations in this thing.
So, reading it backwards is kind of counterintuitive,
but at the same time,
under the circumstances is derivative language,
and it's the only derivative language in the statute.
So I'm trying to figure out what it means.
So help tell me what you think it means.
-: I think it meant, as I, and honestly,
if you look at the 1949 version,
and I believe it's in one of the briefs,
but if it isn't, I'll certainly provide it,
the 1949 version articulated
multiple different circumstances,
including the point Your Honor just raised,
the comparative fault.
You will find detailed different provisions.
Some that said it depends on comparative fault.
I believe that was the one with respect to the employer.
There was a different one for if it was caused
by a railroad.
It was a different one if it was caused by
a different kind of common carrier.
There are literally four.
And in 1958, they repealed all of the others,
except for, I believe, the employer one they left in.
And then they put that understood circumstances language
in section two to capture-
-: Does that mean that Schroeder and Daugherty were wrong?
-: Well, I understand that Your Honor wrote them,
and I understand that there is a trend in the United States
to find wrongful death actions to be derivative,
but I honestly think that the intention of that language
was something different from what Your Honor found.
Now- -: But-
-: Can you still- -: Can you tell us what it was?
You're saying what it was not.
Can you tell us what you,
in your estimation, under such circumstances was?
-: So, if you look at the first section of section two,
the first subpart,
the first subpart talks about negligence.
The second subpart talks about
willful, wanton, or reckless conduct,
which is not a cause of action.
Willful, wanton, and reckless conduct is a scienter.
And so it coupled the scienter with the notion of
could you bring the action under some common law theory?
Could you bring it under,
against a municipality under section one
for not properly maintaining the roads?
Could you bring it under section 2A for streetcars?
Could you bring it under section 2C for railroads?
And each of those contained, as I said before,
each of those contained different provisions
for whether comparative fault applied.
Some did, some didn't.
There was also the fact that a husband at the time
couldn't sue a wife.
That was a separate limitation
on whether on such circumstances.
So, no, I'm not here, Your Honor, to say,
oh, you must reverse what you did.
But what I am saying is that
if you were going to give effect to the legislative history,
you have to give effect to that second clause,
the no recovery shall be had clause,
as well as the under the circumstances clause.
You have to give effect to both.
And when the legislature repealed this,
I respectfully submit that they repealed it
for the reason that the Fuller case represents,
which is Mr. Fuller is struggling, dying from lung cancer.
He is going through excruciating treatments
right at the time when a personal injury action
would've had to been,
he would've had to brought it.
And I respectfully submit that the legislature intended
not to impose that burden on Mr. Fuller,
but to impose, to allow his heirs, the survivors,
who are the beneficiaries of the third clause,
to bring the action,
to allow the heirs to come along and say,
now that there's time to figure out
whether we wanna bring this action,
instead of making a decision when the person is suffering
to make the decision within three years of death.
And that is what I ask Your Honors to find.
Obviously I used way more than my time,
so I thank you very much.
-: Okay, thank you.
Attorney Chesson.
-: Thank you, may it please the court,
Scott Chesson from Shook Hardy for the appellees
in the Fabiano case.
Your Honors, these cases are controlled
by Your Honor's decision in GGNSC two years ago,
where this court held that the beneficiaries
of a death action can sue only if the decedent
would still be in a position to sue,
which is what Justice Wendlandt has been asking
in various forms to both advocates who preceded me.
The court held that wrongful death actions in this state are
"derivative of and dependent on
"the continuance of a right in the decedent
"to maintain an action for his injury
"up to the time of his death."
Dalia: So counsel, can I ask you?
-: Yes, absolutely. -: I'm sorry.
-: Go ahead, please. -: Oh, thank you.
Can I ask you then to explain this legislative history
that you're opposing counsel? -: That's exactly
where I was going to go.
-: Well, good. -: That was my question, too.
Scott Chesson: So we're all thinking the same thing.
Dalia: There you go.
Big softball.
-: The provision that was deleted in 1981
was very different from and far harsher than
the under such circumstances clause,
which existed then and exists now.
That provision said that
"no recovery shall be had under this section
"for a death which does not occur
"within two years after the injury that caused the death."
Meaning that a person who,
like the sort of hypothetical litigant
we've been discussing in the briefs and this morning,
a person who is injured a day later, a year later,
within the statutory period, files a lawsuit,
that lawsuit is pending,
and then a day later, a year later, et cetera,
that person dies,
even if that person had complied with everything,
even if that person had met the statute of limitations
for personal injury,
under the prior statute his or her heirs
could not bring a wrongful death suit,
because it was,
there was no provision.
-: I'm gonna ask you to be more basic.
Hold our hand right through why the 1949 legislative history
and all the different provisions were in it
does not support the appellants' position.
-: Here's my point.
Absolutely.
So, in 1958, the statute that existed at the time
was repealed and replaced with simple language
that said that "A wrongful death action
"can be brought for a person,
"against a person who causes the death
"of a person under such circumstances
"that the deceased could have recovered damages
"for personal injury if his death had not resulted."
The idea was to eliminate all of the...
I agree with Mr. Rainer
that there were a number of different circumstances
under which, that were enumerated in the statute.
And this statute was intended, I assume,
to eliminate the (speaking Latin).
Whatever, I don't speak Latin.
but the point,
the proposition that there are certain types of claims
that because they are not enumerated in the statute
cannot be brought.
This is broader language.
-: Under your interpretation of everything,
if the plaintiff say, as such as in this case,
one of them gets diagnosed in 2004,
dies in 2012 or 2015,
if they had brought their personal injury action
and settled it and recovered it
or had gone to, whatever,
it's over, they brought it, it's over,
what happens then to the statute of limitations?
On the wrongful death case.
-: If I can permissively break that question down
into two pieces.
The situation that Your Honor is presenting
is a situation that I don't think
there's any dispute among the parties about,
'cause at least in the Fabiano case,
the plaintiffs say this in their brief,
if there is a personal injury suit
that is resolved definitively
during the lifetime of the decedent,
then there's no wrongful death action at all, timely or not,
either because of res judicata,
because there's been a resolution,
or if that suit is settled or resolved or released,
because as this court held in GGNSC,
the wrongful death action is derivative
of the personal injury action.
Justice Lowy, what you wrote
in the beginning of that opinion is that
the right to dispose of the personal injury case,
according to the derivative theory,
belongs exclusively to the injured party.
And there are good reasons why that may be,
and Your Honor distinguished it from independent regimes
where, and a legislature is free to do this,
and a lot of legislatures in this country have done so,
where they have said it doesn't matter
what the decedent did,
these are separate injuries, these are separate rights.
But what this court held unanimously two years ago
was that this legislature in this state
determined that the wiser course of action
was to tie the rights of the beneficiaries
to the rights of the decedent.
-: There's also a footnote, though,
in Schroeder, footnote 11,
that points out that "any of our interpretation
"of the common law must therefore recognize
"that chapter 229 sets forth,"
and then it lays out what it sets forth.
And then one of the things that is referenced,
it sets forth a statue of limitations.
I suppose you're the wrong person to ask this question,
but couldn't you interpret that footnote as saying,
well we recognize there's
a statute of limitations issue here as well,
and we're not digging into that this moment.
-: Well, I mean, Your Honor certainly has me
at a disadvantage in the sense that
you wrote the opinion that footnote and I did not say.
-: That's why you're the wrong person to ask.
-: You know what was in your mind-
-: He was talking to himself this morning.
Don't worry.
-: I will say this.
If I were anywhere in this state other than in this room,
if I were down the hall,
and I were arguing to a tribunal that is bound
by GGNSC or Schroeder,
I would say I think that opinion is as clear as day
that the dividing line between viable wrongful death claims
and non-viable wrongful death claims
is whether at the time of the decedent's death,
he, quote, "would still be in a position to sue."
And the reason for that,
and Your Honor went through the reasoning.
You said, "Number one,
"there's that under such circumstances clause,"
which again is very clear.
It says "A person can be sued for wrongful death
"if he causes the death of a person
"under such circumstances
"where the deceased could have recovered damages."
Two parts to that.
Causes the death at a time.
So, in response to my brother's suggestion that-
-: And can you, and I don't mean to cut Justice Lowy off,
are you, but one thing I don't understand
is the under such circumstances only,
it doesn't appear in every clause, right?
It doesn't appear in the breach of warranty clause,
in other parts- -: It also doesn't appear
in the negligence clause.
And the court dealt with this in GGNSC, at least in part,
so what the court...
In GGNSC there was a negligence claim.
And so what the court said is
we recognize that under such circumstances
appears in the willful and wanton clause,
but not in the negligence clause.
But those two things are combined in the disjunctive.
And so we read the clause as modifying both.
Your Honor certainly could hold that with respect
to breach of warranty, but-
-: How do we do that?
'Cause it's a little harder with breaching warranty.
-: This is exactly where I was going.
I see plaintiff's point that breach of warranty
comes after the clause, whereas negligence comes before.
So you have to squint a little harder at that sentence
in order to do that.
But here's what I would say.
Again, and I direct it back to that opinion
from two years ago,
what the court said is because of the the or in there,
we think the clause modifies both.
But in any event, Your Honor said,
there are multiple other indications in that statute
that the statute was intended to be derivative.
For example, the court wrote,
the elements of a negligence based wrongful death claim
are the same as the elements of a personal injury based,
a personal injury negligence claim.
The elements overlap.
The same is true for breach of warranty.
Your Honor also said the structure of the whole statute,
the fact that the claim for wrongful death
can only be brought by the administrator
of the deceased's estate.
The fact that, and not by the beneficiaries themselves,
the fact that there's only one action,
even if there are multiple beneficiaries,
all contributes to the conclusion that this court drew,
that the legislature, when it wrote this statute,
like the legislatures in the majority of states
around the country,
intended the rights of the survivors
to be tied to the rights of the decedents.
And the fact is also,
I've been thinking a lot about
this breach of warranty question,
'cause I'm with you that it's harder to read the or
as doing the work in this case
as it did in the prior case.
But even if you consider
the breach of warranty clause in isolation,
I think it's pretty clear on its face
that it's meant to be derivative.
'Cause what the clause says is wrongful death claims
can be brought against someone
who is responsible for a breach of warranty
under Article 2 of chapter...
It's the UCC, the Uniform Commercial Code.
It references the Uniform Commercial Code.
One cannot be responsible for a breach of warranty
under the UCC, legally,
if one is not sued within three years.
There is a statute of limitations right there
in Article 2 of section 106 that has to be met
before anyone can be judged responsible.
-: So Attorney Chesson, how should the plaintiffs
have gone about this?
How would they have been able to sue for a wrongful death.
-: The same as any other plaintiff
under any other circumstances.
If a person is injured,
the legislature gives that person a certain amount of time,
not from injury,
but by virtue of the discovery rule,
from accrual of the claim to bring a lawsuit.
I mean Mr. Fuller, for example,
and Ms. Powell will discuss this
in greater detail, I imagine,
Mr. Fuller actually did sue.
He brought a 93A claim.
He didn't bring personal injury claims.
Those claims were expired by the time-
-: So you're saying that,
say someone does bring their,
bring a negligence claim or whatever,
it's settled, then there's no wrongful death claim
to be had.
-: And this is why I try...
The answer is yes,
and where I said I wanted to break
Justice Sypher's question down into two parts,
where I'm getting hung up is the end it's settled.
I don't even think there's a dispute
that if there is a settled-
-: My only point is there's no wrongful death action.
-: So the- -: That is true.
-: And I'm just saying- -: Then insert,
they just get to get off, right?
-: Well, no, they don't get to get off.
They have liability to the decedent.
I mean look-
-: But they wouldn't have liability to the family members
who could bring the claim.
-: Correct, which is, I believe,
what this court thought was the intention of the legislature
when it decided the last two cases.
There are a number of circumstances
in which an injured party,
through either action or or conscious inaction,
I say conscious inaction,
because the premise of a discovery rule
appended to a statute of limitation.
The premise is that a person who doesn't sue
does so knowingly.
You don't accidentally, at least constructively,
fail to meet a statute of limitations.
You have three years from when you are injured, and you know
or have reason to know- -: What if they keep smoking
and it's a continuous injury?
-: Say that again, I'm sorry. -: What if they keep smoking?
Wouldn't it be a continuous tort?
-: I mean, I suppose if they could prove
that only the smoking within the last three years
by itself was a
necessary and sufficient. -: So cumulative effect.
-: Excuse me? -: So there is
a moment in time, one moment in time,
not a cumulative effect?
-: Well, a statute of limitations
runs from accrual of the claim.
Accrual of the claim is when you are injured.
So, I mean,
I suppose a person who is injured knows that he's injured,
allows the statute to lapse, and then sues 10 years later.
If they're suing for the additional damages they incurred
over the course of the proceeding three years,
I think that would probably be a viable claim.
But if they're suing for the injury
that they had 10 years before...
I see my red light is on.
I'll end this way.
Here's the gist of what I'm hearing from the court,
and I apologize if I'm getting it wrong.
I'm sensing some concern about what the plaintiff's call
the inequity of cutting off claims of people
who would otherwise have valid claims.
And I hear that,
and Justice Davis discussed this in the decision
that is under review,
any time a legislature puts any kind of time limit
on a claim,
whether it's a statute of limitations
or a statute of repose or anything else,
that has the effect of cutting off the...
There's some subset of the population
that would otherwise be entitled to recover that isn't
because of this procedural default.
-: There's a different concern, though, within that,
and I think Chief Justice Budd
and Justice Sypher's questions get at that
a little bit different concern,
which is there's no remedy for the death.
There's no remedy for the wrongful death.
There's implications for loss of consortium.
I think that's implicit in the questions as well.
-: And I appreciate the clarification,
and what I'm getting at is that is the holding
in the prior two cases,
that there are certain situations in which
a decedent can make choices
that affect the ability of his or her heirs
to collect for wrongful death.
And the legislature has very good reason to want to do that.
I mean, what Justice Davis said in the decision under review
is that this notion of sort of staccato,
on again off again...
Forget cigarettes.
If I'm a doctor or a hospital or an HMO
or like a medical malpractice insurer,
and I'm trying to order my affairs and figure out
the extent of potential liability
of how to set premiums and how to set reserves,
I can be fairly confident that a procedure
that was performed four years ago
that I haven't been sued for
is one that I'm never going to get sued for.
Not definitely, 'cause there's a discovery rule,
and there's nuance in it,
but I can order my affairs that way.
If that claim, if that's true until the person dies
and then it springs back to life
there are consequences to that,
which I respectfully submit- -: Cigarette companies
are a little different from doctors, though.
So that's...
I mean, I get your point, but-
-: My point is I'm reading the statute.
I mean, I hear you.
-: And so that's what we're gonna figure out.
-: Right, I'm reading the statute,
and I'm reading this court's decision,
and what this court said in its decision was
the legislature chose to make these claims derivative
for a reason.
Thank you, I appreciate
the extra time. -: Thanks so much.
Okay, Attorney Powell.
-: Thank you, Chief Justice.
May it please the court, my name is Victoria Powell.
I'm appearing on behalf of R.J. Reynolds Tobacco Company
and Cumberland Farms Incorporated.
I wanted to just start by addressing
some of the questions that were asked
about how to reconcile
the wrongful death statute of limitations
with the derivative nature of the wrongful death action.
And the point that I wanna make is that
the wrongful death statute of limitations
is still doing independent work.
So the statute of limitations kicks into place
only when the decedent at the time of his death
had a viable injury.
So when the decedent is not still in a position to sue,
there is no cause of action for wrongful death.
And a statute of limitations
in the wrongful death statute doesn't apply.
So it really doesn't matter if that statute of limitations
is one year or 50 years,
if there's not a cause of action
that the injured person could bring,
then that wrongful death statute of limitations,
it's not triggered.
But the wrongful death statute of limitations
is still doing independent work,
because so long as the decedent was in a position to sue,
it gives the beneficiaries a new three-year period.
-: There was only one day left.
-: Exactly, so if there was one day left
for the injured person to bring a cause of action
on the date of death,
then the beneficiaries have a new three-year period
to bring a wrongful death action.
-: (indistinct) Goes back to the first question
Justice Wendlandt asked this morning,
and it really is,
is there anything about the action being derivative
as it might relate to a waiver of claims
or a willingness to arbitrate,
in any way different as a matter of reasoning
from a statute of limitations?
-: Not at all, because- -: Why?
-: In all of those situations,
the decedent is not still in a position to sue.
So it really doesn't matter what the underlying defense is.
As this court explained in Schroeder,
the wrongful death action is a continuation
of the personal injury action.
So for any reason, the decedent would not
still be in a position to sue,
then there can be no recovery
under the wrongful death statute.
But if the decedent is in a position to sue,
even if they only have one day left
on the statute of limitations, the time of death,
then the beneficiaries have a new three-year period
to bring a wrongful death action.
-: But there's one difference
between our prior cases and this one,
which is we have express statutory language.
And again, the legislature wrote this
long before we wrote our two decisions from what,
the 2020 timeframe, right?
So it's just hard to read back into this derivative nature.
It doesn't really depend on the exact language,
because, I mean,
we gotta interpret what the legislature meant,
not what we said, right?
-: Yes, but I think that you can read
the under such circumstances clause
and the breach of warranty,
the derivative language in the breach of warranty section
that Mr. Chesson pointed out
consistent with- -: Yeah, can you,
that point lost me a little bit.
Because the UCC has a three-year statute of limitations,
even though our statute of limitations
doesn't even mention the UCC,
we read in that three-year period?
That's clever, but I don't know if that's realistic.
-: Yeah, I'll just briefly address that, if that's okay.
So the wrongful death statute states that there's
a wrongful death action if the defendant, quote,
"is responsible for a breach of warranty under Article 2."
In Article 2, there's the breach,
the statute of limitations for a breach of warranty claim.
So a defendant would not be responsible
for a breach of warranty arising under Article 2
if the claim were time barred.
-: So does that mean that Article 2 statute of limitations
trumps, is totally dominant for statute of limitations
in this wrongful-
-: Not at all.
They're doing different work.
So the decedent had to be in a position to sue
at the time of his death,
and that's controlled by the the-
-: But I'm just trying to take your,
this argument about Article 2 to its logical conclusion.
So Article 2 has a three-year limitation period
for breach of warranty.
And by the way, is it three years from what?
Three years from...
In the UCC, what is it?
Three years from what? -: Date of injury.
-: So three years from date of injury under the UCC
will now trump every other aspect of this
in a breach of warranty claim?
Meaning it's basically resurrecting the 1981 provision
for breach of warranty?
-: Not at all, because they're doing different things.
So that 1981 language, it's not...
So, I think the best way-
-: Hold on a second, but again,
it says date of injury provision in Article 2.
Do we have a date of injury for breach of warranty
but not the rest of the statute?
-: No, because all that matters
is whether the decedent was able to sue
at the time of his death.
So the Article 2 tells us whether the decedent
was able to sue at the time of his death.
And so if the Article 2 is telling us
whether the decedent was in a position to sue
for breach of warranty at the time that he died.
But if he was, even if there's one day remaining
on that three-year clock to bring
a breach of warranty claim,
then the wrongful death statute
gives us a new three-year period
for the beneficiaries to bring a wrongful death action.
And we outline in our brief
that there are three different situations
where a wrongful death action could be brought
more than three years after the date of original injury.
I'll just direct, that's at page 36 and 37 of our brief.
So, thank you.