Wisconsin Supreme Court Applies the Discovery Rule to Accrual of Wrongful Death Claims
Yesterday, Wisconsin’s Supreme Court decided that the discovery rule—that is, the rule that a tort claim for which the legislature has provided no other rule “accrues” for statute-of-limitations purposes when the plaintiff discovers both his injury and the identity of the tortfeasor—applies to statutes of limitations for both wrongful death (belonging to close relatives to compensate them for their own losses) and survival (belonging to the decedents and passing to their estates) actions. Christ v. Exxon Mobil, 2015 WI 58.
The case began when several current and former employees sued their tire-manufacturer employer and others, alleging injury from exposure to benzene-containing products at work. Some of the employees had died from their injuries, so relatives and personal representatives brought wrongful death and survival actions. The defendants moved to dismiss the claims because, they argued, they had accrued no later than the time of the decedents’ deaths and, having been filed more than three years after those deaths, were time-barred. The plaintiffs invoked the discovery rule because they and their decedents did not initially understand defendants’ role in their injuries. The circuit court granted defendants’ motion. The court of appeals summarily reversed, relying on its 2013 unpublished decision in parallel litigation involving the same defendants.
The Supreme Court affirmed in a 5-2 decision written by Justice Prosser. The Court described the history of wrongful death and survival actions from territorial days and determined that the discovery rule applied to both. In particular, the Court reasoned that a tortfeasor should not be better off after killing a victim than after seriously injuring him. After all, an injured plaintiff can invoke the discovery rule. In reaching its decision, the Court expressly overruled case law—chiefly, Terbush v, Boyle, 217 Wis. 636 (1935)—that, in its view, had already been overruled “[f]or all practical purposes,” ¶56, by its discovery rule cases, Hansen v. A.H. Robins, 113 Wis.2d 550 (1983), and Borello v. U.S. Oil, 130 Wis.2d 397 (1986).
The Court tempered its decision with a few “caveats,” reminding the parties that plaintiffs invoking the discovery rule must demonstrate reasonable diligence. The Court remanded the case to the trial court to decide whether the claims survived the statute of limitations under the discovery rule.
The Supreme Court then rejected the defendants’ additional arguments that their constitutional rights were violated by the court of appeals’ summary disposition of the case (itself seven pages long). See Wis. Ct. App. IOP VI-1. Summary disposition is fairly common, last year accounting for 27% of the court’s case terminations—718 cases in all including 15 summary reversals. And there was no problem using the procedure here where the court of appeals simply applied its fully explicated decision from a parallel case.
This decision applies only to what must be a small class of wrongful death/survival cases where the identity of the tortfeasor was not known when the victim died. Therefore, the claims revived by the Court’s decision are necessarily difficult to defend; the victim has died, and more than three years have passed since the alleged injury. The Court pointed out that—because Hansen is a policy-based rule—“very old claims” that place “too unreasonable a burden” on defendants may still be barred on policy grounds. ¶69.
Chief Justice Roggensack, joined by Justice Ziegler, dissented on the principal issue. They concluded that wrongful death actions accrue at death and that survival actions accrue no later than death.