603 N.E.2d 284 | Ohio Ct. App. | 1991
This appeal originates from the entry of a summary judgment by the Ottawa County Court of Common Pleas on an employer intentional tort and wrongful death claim filed by appellant Patricia Anderson, individually, and as executrix of the estate of Gary A. Anderson. The trial court granted appellee's motion for a summary judgment because appellant's claims were time-barred by the statutes of limitations. We affirm in part and reverse in part.
The facts pertinent to this appeal are undisputed. Decedent, Gary Anderson, was informed in 1975 that he had contracted berylliosis and over time his condition would worsen. Anderson had been employed by appellee, Brush-Wellman, Inc., at its Elmore, Ohio plant some fifteen years earlier for a period of twenty-one months. It was there that he came in contact with beryllium, which allegedly caused his disease. In 1980, Gary Anderson married appellant Patricia Anderson. By 1987, he could no longer work because of the progression of the disease; he died on February 24, 1989.
The history of the proceedings in the trial court indicates that Gary Anderson and Patricia Anderson filed a three-count complaint on October 26, 1988, alleging a common-law employer intentional tort, statutory employer intentional tort under R.C.
Appellee responded by filing a motion "for dismissal or summary judgment." Appellee asserted that appellant's amended complaint failed to allege that appellee specifically intended to injure Gary Anderson and therefore failed to state a claim for relief. In addition, appellee moved for summary judgment, averring a bar to the claims by the statutes of limitations.
The trial court granted summary judgment to appellee, holding that appellant's claims were barred by the statutes of limitations. Upon granting appellee's motion for summary judgment, the trial court held as "moot" *660 appellee's motion to dismiss for failure to state a claim. Appellant, in turn, appealed offering the following assignments of error:
"FIRST ASSIGNMENT OF ERROR
"The Trial Court erred by not applying the date of disability as the date of accrual.
"SECOND ASSIGNMENT OF ERROR
"The Trial Court erred by holding that Ohio Revised Code §
"THIRD ASSIGNMENT OF ERROR
"Plaintiff's claim for loss of consortium was incorrectly dismissed by the Trial Court."
The essential issue for this court to decide is whether the trial court properly applied the correct statute of limitations to appellant's claims.
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose. * * *"
The statute of limitations begins to run in cases of occupational diseases with delayed manifestation when the employee is aware, or reasonably should be aware, of his injury.O'Stricker v. Jim Walter Corp. (1983),
R.C.
"An action for wrongful death shall be commenced within two years after a decedent's death."
Clearly, appellant filed her wrongful death claim within two years. Gary Anderson died on February 24, 1989. The suggestion of death was filed March 24, 1989, and the amended complaint asserting his wrongful death was filed on February 23, 1990.
We are left to determine whether that wrongful death claim is barred due to Gary Anderson's failure to timely file his injury claim that ultimately led to his alleged wrongful death.
"* * * An action by an administrator to recover damages for the wrongful death of the decedent and an action instituted by the decedent in his lifetime to recover damages for his injuries are maintained under separate and independent rights . Wrongful death is a new cause of action distinct and apart from the right of action which the injured person may have had. [The statute] creates a right for those who suffer pecuniary loss by virtue of the decedent's wrongful death." (Citations omitted.)Prem v. Cox (1982),
"`As the right of action conferred by §§ 10509-166 [R.C.
We elect to follow the dictates of Brosse. In so doing, we hold that if a wrongful death claim is filed within the time period required by R.C.
The statute of limitations governing loss of consortium claims is R.C.
"An action for any of the following causes shall be brought within four years after the cause thereof accrued:
"* * *
"(D) For an injury to the rights of the plaintiff not arising on contract nor enumerated in sections
Accordingly, loss of consortium claims are governed by a four-year statute of limitations. Bowling v. Brendamour's, Inc.
(1988),
However, the right of consortium is a right which grows out of marriage, is incident to marriage and cannot exist without marriage. Haas v. Lewis (1982),
Accordingly, we affirm the trial court's finding that appellant's claims, except for the wrongful death action, are time-barred by the statutes of limitations. We reverse the judgment of the Ottawa County Court of Common Pleas as it relates to appellant's wrongful death claim and remand for further proceedings not inconsistent with this opinion. Court costs are to be paid by appellee.
Judgment affirmed in partand reversed in part.
ABOOD and MELVIN L. RESNICK, JJ., concur.
As noted below, however, the Supreme Court of Ohio has declared all of R.C.