Clark Sand Co., Inc., et al. v. Morgan
| Docket Number: | 2010-IA-00255-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 05-03-2012 Opinion Author: Carlson, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Wrongful death - Statute of limitations - Waiver - Section 15-1-49 - Survival claims Judge(s) Concurring: Waller, C.J., Dickinson, P.J., Randolph, Lamar and Pierce, JJ. Dissenting Author : Kitchens, J. Dissent Joined By : Chandler and King, JJ. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 01-21-2010 Appealed from: Adams County Circuit Court Judge: Forrest Johnson Disposition: Denied the Appellants' motion for summary judgment. Case Number: 07-KV-0107-J |
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| Consolidated: 2010-IA-00247-SCT Empire Abrasive Equipment Corporation, Unimin Corporation, Specialty Sand Company, Lone Star Industries, Inc., Pearl Sands, Inc., Pearl Specialty Sands, Inc., Clark Sand Company, Clemco Industries Corporation, Custom Aggregates and Grinding, Inc., Hanson Aggregates, Inc., Pangborn Corporation, Precision Packaging, Inc., Southern Silica of Louisiana, Inc., and Mine Safety Appliances v. Henry S. Morgan, Jr., Individually and on Behalf of all Wrongful Death Beneficiaries of Henry Morgan, Sr., Deceased; Adams Circuit Court; LC Case #: 07-KV-0107-J; Ruling Date: 01/21/2010; Ruling Judge: Forrest Johnson 2010-IA-00250-SCT Mine Safety Appliance Company, Specialty Sand Company, and Unimin Corporation v. Henry S. Morgan, Jr., Individually and on Behalf of all Wrongful Death Beneficiaries of Henry Morgan, Sr., Deceased; Adams Circuit Court; LC Case #: 07-KV-0107-J; Ruling Date: 01/21/2010; Ruling Judge: Forrest Johnson | ||
| Party Name: | Attorney Name: | |||
| Appellant: | Clark Sand Company, Inc., et al. |
JENNIFER JONES SKIPPER
FRED KRUTZ, III
EDWIN S. GAULT, JR.
KATHARINE MCKEE SURKIN
RONALD G. PERESICH
W. MARK EDWARDS
RANDI PERESICH MUELLER
EDWARD W. MIZELL
VICTOR JOHN FRANCKIEWICZ, JR.
J. STEVENSON RAY
W. WRIGHT HILL, JR.
GEORGE MARTIN STREET, JR.
DAVID A. BARFIELD
KIMBERLY PAIGE MANGUM
CLYDE LAVEL NICHOLS, III
WADE G. MANOR
JAMES SCOTT ROGERS
CHARLES R. WILBANKS, JR.
MATTHEW ROBERT DOWD |
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| Appellee: | Henry Morgan, Jr., Individually and on Behalf of All Wrongful Death Beneficiaries of Henry Morgan, Sr., Deceased | DAVID NEIL MCCARTY TIMOTHY W. PORTER PATRICK C. MALOUF JOHN TIMOTHY GIVENS |
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| Topic: | Wrongful death - Statute of limitations - Waiver - Section 15-1-49 - Survival claims |
| Summary of the Facts: | Henry Morgan, Sr., filed a personal-injury suit against eighty-eight defendants, claiming injuries related to silicosis. Morgan, Sr., died while the personal-injury case was pending, and the case eventually was dismissed. More than three years after Morgan, Sr.’s death, his son, Henry Morgan, Jr., filed a wrongful-death suit individually and on behalf of all wrongful-death beneficiaries of Morgan, Sr. The defendants filed a motion for summary judgment based on the running of the statute of limitations. The trial court denied the motion. The Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Waiver Morgan, Jr., argues that the defendants waived the statute-of-limitations defense because they waited more than two years before pursuing their defense that the statute of limitations applied, and because they substantially participated in the litigation prior to asserting the defense. The defendants respond by claiming that, because Morgan, Jr., did not file a cross-appeal on this issue, he is precluded from raising it in his appellate brief. In the alternative, they argue that the defense was not waived. In its order denying the defendants’ motion for summary judgment, the trial court specifically held that the defendants had not waived the statute-of-limitations defense. A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. Here, the wrongful-death complaint was filed on May 23, 2007. All of the defendants asserted the statute of limitations as an affirmative defense in their answers, which they filed separately. In every one of these answers, the affirmative defense of the statute of limitations appears in a boilerplate form alleging none of the specifics of this case. After the defendants first raised the statute of limitations as a defense in their answers, they waited more than two years before filing their motion for summary judgment based on the statute of limitations. However, since the initial complaint did not specifically identify the deceased and discovery had not yet been answered by the plaintiff, according to the defendants, they were unaware of Morgan, Sr.’s identity or of the date that the relevant statutes of limitations began to run. The two-year delay was lengthy. Thus, the relevant inquiry is whether the defendants substantially participated in the litigation and whether Morgan, Jr., was prejudiced by this delay. The only actions the parties had taken prior to the filing of the motion for summary judgment essentially related to early stages of discovery. No depositions had been taken, the case had not been set for trial, and the only hearing related to the summary-judgment motion. Importantly, the actions taken must be considered in context. The only significant delay was Morgan, Jr.’s delay in responding to written discovery. Morgan, Jr.’s discovery responses provided the defendants, for the first time, with such vital basic information as Morgan, Sr.’s social security number and address, allowing the defendants to determine Morgan, Sr.’s identity. Nor did the complaint allege the date of Morgan, Sr.’s discovery of his injury or the date of his death, making it impossible for the defendants to calculate whether the statute of limitations had run until Morgan, Jr., had complied with discovery. After Morgan, Jr., finally responded to discovery on October 2, 2009, the defendants filed their Motion for Summary Judgment on November 7, 2009. Also, Morgan, Jr., has failed to show that he was prejudiced by the defendants’ delay. Given the circumstances of this case, the defendants did not waive the defense. Issue 2: Statute of limitations Generally, wrongful-death actions are predicated on an underlying tort, and the action is limited by the statute of limitations which is applicable to that tort. In today’s case, the three-year limitations period in section 15-1-49 applies. The various claims that may be brought in a wrongful-death case all are subject to their own statutes of limitations. For example, the statute of limitations for “survival-type” claims that may have been brought by the decedent begins to run when the decedent could have pursued a claim. Morgan, Jr., asserted “survival-type” and “wrongful-death” claims in his complaint. The limitations period for the survival claims began to run on the date of Morgan, Sr.’s diagnosis – June 2, 2002. In the absence of any tolling, the statute of limitations for these “survival-type” claims expired on June 2, 2005. Also, without considering any tolling, the statute of limitations for other “wrongful-death” claims expired on September 14, 2005 – three years after Morgan, Sr.’s death. Morgan, Jr.’s wrongful-death complaint was not filed until May 23, 2007. Thus if there are no applicable tolling periods, Morgan, Jr.’s wrongful-death action will be time-barred. Morgan, Jr.’s wrongful-death action is time-barred. Subsequently-filed, wrongful-death actions are “separate and distinct” from previously filed, personal-injury actions. Morgan, Jr., had not been appointed executor of Morgan, Sr.’s estate prior to filing the wrongful-death action, nor had Morgan, Jr., been substituted as a party plaintiff in Morgan, Sr.’s suit. Because the savings statute does not apply and the two actions are “separate and distinct,” the statute of limitations was not tolled and began to run for “wrongful-death” type claims on the day of Morgan, Sr.’s death – September 14, 2002. Morgan, Jr.’s wrongful-death claim should have been filed by September 14, 2005 – three years after Morgan Sr.’s death. The statute of limitations for “survival-type” claims began to run on June 2, 2002 – the date of Morgan, Sr.’s diagnosis – and expired on June 2, 2005. Morgan, Jr.’s survival claims were not filed until May 23, 2007, and are barred by the three-year statute of limitations. |
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