Wrongful Death Claims Accrue When Underlying Cause of Action Accrues
In a recent opinion, the Mississippi Court of Appeals held that a wrongful death claim must be brought within the limitations period governing the underlying action, even if the decedent does not die until after the limitations period has expired. May v. Pulmosan Safety Equipment Corp., et al., No. 2005-CA-01750-COA (Miss. Ct. App. 2007). The decedent, J.D. May, was diagnosed with silicosis in 1971. The Court held that J.D. May's claim accrued, at the latest, in 1997, when a medical record attributed his silicosis to workplace exposure to silica. J.D. May filed a complaint on March 18, 2002, and died two months later. May's wrongful death beneficiaries were substituted as parties in April of 2004. The defendants moved for summary judgment based on the three-year statute of limitations. May's wrongful death beneficiaries argued that, while May's claims may have accrued in 1997, their wrongful death claims did not accrue until May's death in 2002. The plaintiffs argued that applying the statute of limitations of the underlying tort would bar their wrongful death claim before it accrued.
Following the rule in Jenkins v. Pensacola Health Trust, Inc., 933 So. 2d 923 (Miss. 2006) that "a wrongful death claim is subject to, and limited by, the statute of limitations associated with the claims of specific wrongful acts which allegedly led to the wrongful death," the Court of Appeals held that the plaintiffs' wrongful death claims accrued in 1997, at the same time the decedent's claim accrued, and affirmed the Pike County Circuit Court's grant of summary judgment in favor of the defendants. In a concurring opinion, Judge Chandler argued that the majority confused the Jenkins rule -- that a wrongful death action is subject to any defense that would have been available had the decedent survived -- with the concept of accrual of a wrongful death action. Judge Chandler wrote that the derivitive remedy of a wrongful death claim "cannot accrue prior to the death." Therefore, a wrongful death beneficiary has no right to sue for a death that is anticipated, but has not yet occurred. Judge Chandler stated that the majority's characterization of the Jenkins rule "foster[ed] confusion" regarding the accrual date of a wrongful death action.
For more information, please contact Mary Clay Morgan.
