Lead Opinion
In the context of a -wrongful death action, we are asked to determine when the two-year statute of limitations begins to run. In answering this question, we must decide whether the statute of limitations runs from the date of death of the victim, or whether the discovery rule can be used to extend the statutory period in which to commence such an action. For the reasons that follow, we hold that the discovery rule is applicable.
Ordinarily, a cause of action accrues and the statute of limitations begins to run at the time the wrongful act was committed. Kunz v. Buckeye Union Ins. Co. (1982),
In deciding whether the discovery rule can be used to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim, it is necessary to revisit our decision in Shover v. Cordis Corp., which appellee asserts directly supports her position, and which the lower courts relied upon in dismissing appellant’s cause of action.
In Shover, the decedent’s deáth was caused by a defective pacemaker. It was not until about four years after her death (and beyond the two-year statute of limitations) that decedent’s son learned through a newspaper article that the pacemaker manufacturer had pled guilty to charges of concealing the pacemaker’s defects. Less than five months after learning this fact, the son filed a products liability and wrongful death action against the manufacturer. The trial court dismissed the complaint on the ground that the wrongful death claim had not been brought within two years from the date of the decedent’s death. The court of appeals affirmed.
In a four-to-three decision, this court likewise affirmed the trial court’s dismissal of the case and held that “[njeither fraud nor the discovery rule can toll R.C. 2125.02(D), Ohio’s statute setting forth the time within which to commence wrongful death actions.” Id. at syllabus. In refusing to apply the discovery rule, we focused on the fact that a wrongful death claim is based upon the death of a person and is a special statutory action created by the General Assembly. We strictly construed the statutory language of R.C. 2125.02(D) (now R.C. 2125.02[D][1]), which states that “[a]n action for wrongful death shall be commenced within two years after the decedent’s death,” and held that the discovery rule is inapplicable, since the legislature did not engraft tolling language.into the wrongful death statute.
We further reasoned that the discovery rule has traditionally been limited to malpractice actions, which we said differ from wrongful death claims. With respect to malpractice claims, we reasoned that the injury may not be discovered immediately, whereas in wrongful death actions, the death of the person, which is the basic element of a wrongful death action, is a known factor, allowing the survivors to proceed on the decedent’s behalf without delay. Id.,
A wrongful death claim is not triggered merely by the death of a person, but by “the death of a person * * * caused by wrongful act.” (Emphasis added.) R.C. 2125.01(A)(1); see, also, Shover v. Cordis Corp.,
Furthermore, we were incorrect in Shover when we stated that the discovery rule was traditionally limited to malpractice claims and when we noted that, with respect to a wrongful death claim, the injury manifests itself upon the death of the person. Although the discovery rule was initially applied in the context of medical malpractice (Melnyk v. Cleveland Clinic [1972],
In each of these cases in which we invoked the discovery rule, we found that the injury complained of did not manifest itself immediately. Therefore, rather than adhere to the rigid application of a particular statute of limitations, we liberally interpreted the time of accrual of the cause of action until the plaintiff knew, or by the exercise of reasonable diligence should have known, that he or she had been injured by the conduct of the defendant. Ault,
Thus, the discovery rule was adopted to prevent inequities that occur when a statute of limitations is rigidly followed. Such inequities exist in a wrongful death action where the victim’s survivors are not immediately aware that a wrongful death has occurred. Under these circumstances, if accrual occurs from the date of death, the survivors may not be given the benefit of the two full years in which to bring a suit or may be left without any remedy at law.
For instance, often, with a murder, law enforcement officials may easily discover that a murder has taken place. There may also be positive identification of the victim soon after the crime was committed. However, the crime may remain unresolved until well after the victim was killed and beyond two years after the victim’s death. Under those circumstances, if the crime is not solved within two years from the date of death, then the survivors cannot pursue a wrongful death claim. Or, as was the case here, if death is the triggering event, then the two-year statute of limitations may begin to run even before the victim’s family has learned the awful truth about their loved one. In this situation, under our holding in Shover, a person pursuing a wrongful death claim would not be given the full two years to commence an action.
It is illogical to penalize the victim’s survivors, who have already suffered a great loss, by shortening or extinguishing the time in which they may bring a wrongful death lawsuit. To do so merely rewards the criminal defendant. Although the defendant may be held accountable in a criminal court for the horrendous crime he committed, he can nonetheless escape civil liability, all at the expense of the victim’s family, and simply because of the harsh application of a statute of limitations.
In his dissent in Shover,
“If * * * a wrongful death action stems solely from the wrongful death statute, then if the General Assembly decided to repeal Ohio’s wrongful death statute, any tortfeasor who negligently injured another would need only be sure that his or her victim was dead in order for the tortfeasor to be absolved from civil liability. If Ohio’s wrongful death statute remains in effect and is interpreted in the
We are unwilling to further condone such a ludicrous result. Since we find that our decision in Shover is inherently flawed and runs contrary to the dictates of logic and fairness, we now overrule it with today’s decision. Accordingly, we hold that the discovery rule applies to toll R.C. 2125.02(D), the two-year statute of limitations for a wrongful death claim. In a wrongful death action that stems from a murder, the statute of limitations begins to run when the victim’s survivors discover, or through the exercise of reasonable diligence, should have discovered, that the defendant has been convicted and sentenced for the murder.
In this case, Sotka was sentenced for the murder of Angel Ormston in an order dated February 10, 1993. The two-year statute of limitations accrued on this date, giving appellant until February 10, 1995 in which to file his cause of action for wrongful death. Since a complaint was filed on February 6, 1995, we find that it was filed within the statute of limitations. Accordingly, we reverse the judgment of the court of appeals and remand the matter to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
Notes
. Appellant also argues that the wrongful death statute violates the open courts provision of the Ohio Constitution. However, since we are applying the discovery rule to a wrongful death action, appellant may proceed with his cause of action and is not without a remedy. Therefore, this issue need not be discussed.
Concurrence Opinion
Douglas, J.,
concurring. I write separately in concurrence to note this historic day when a majority of this court takes the step to do away with what might very well be the worst case result in Ohio jurisprudence. Shover v. Cordis Corp. (1991),
I also write to express my continued adherence to my dissent in Shover with regard to the faulty proposition that “wrongful death is a creature of statute.” Id. at 229-233,
Finally, add to all of this that a cause of action for wrongful death has its own special constitutional provision (Section 19a, Article I, Ohio Constitution), and it should be obvious that with or without a statute on wrongful death, the cause of action exists as it did at common law. Given this, someday maybe we will be able to straighten out the punitive damages question as it relates to wrongful death.
Dissenting Opinion
dissenting. As the majority states, there are few events more tragic than the abduction and killing of a loved one. In this case, nearly five months passed from the time Angel C. Ormston was seen alive to the time her body was discovered. There is no doubt great pain has been endured by her family. However, we, as members of the third branch, are required to temper our empathy by upholding our primary duty to interpret the law as applied to legal issues presented to us. As I stated in my dissent in Ault v. Jasko (1994),
The majority, in overruling Shover v. Cordis Corp. (1991),
I
The expansive holding adopted by the majority today could not be more illustrative of the harm effected upon our jurisprudence when the judiciary does not follow the principle that courts are ill suited and not designed to substitute their policy judgment for that clearly stated by the legislature. See Japan Whaling Assn. v. Am. Cetacean Soc. (1986),
The statute at issue here, R.C. 2125.02(D), is clear and unambiguous — “An action for wrongful death shall be commenced within two years after the decedent’s death.” The common and ordinary usage of these words suggests only one possible meaning: that the General Assembly intended that causes of action for wrongful death be brought within two years after the death of the decedent. It is axiomatic that courts do not resort to construction in the absence of ambiguous language contained in a statute. Ohio Dental Hygienists Assn. v. State Dental Bd. (1986),
Where a statute is clear and unambiguous, the court must enforce the statute as written. The court may not add to or subtract from the language of the statute. Bernardini v. Conneaut Area City School Dist. Bd. of Edn. (1979),
Rather than apply these well-established principles, the majority has added the discovery rule to the statute. Under the majority opinion, the statute now effectively reads, “An action for wrongful death shall be commenced within two years after discovery of the decedent’s death, or, where the death results from a murder, an action for wrongful death shall be commenced within two years after discovery that a person was convicted and sentenced for the murder.”
The majority does not state what portion of R.C. 2125.02(D) it finds to be unclear or ambiguous. In the absence of such an analysis, the majority supports 'its position only by discussing the “many policy considerations that have supported our application of the discovery rule in a variety of contexts.” The majority states, “It is illogical to penalize the victim’s survivors who have already suffered a great loss, by shortening or extinguishing the time in which they may bring a wrongful death lawsuit. To do so merely rewards the criminal defendant. Although the defendant may be held accountable in a criminal court for the horrendous crime he committed, he can nonetheless escape civil liability, all at the expense of the victim’s family, and simply because of the harsh application of a statute of limitations.”
If such a rationale were applied to every instance where a prospective plaintiff misses the statutory time for filing a complaint, we would declare every statute of limitations to be invalid. I do not necessarily disagree with the majority’s belief that the application of R.C. 2125.02(D) may occasionally be unfair, but our only duty here is to give the words of the statute their plain and ordinary meaning unless otherwise defined. Coventry Towers, Inc. v. Strongsville (1985),
Just seven years ago, in Shover, we held that the discovery rule was not applicable to causes of action arising under the wrongful death statutes. We also stated that “ ‘ “[i]t is well settled * * * that the legislature has the power to increase the period of time necessary to constitute a limitation, and also to make it applicable to existing causes of action, provided such change is made before the cause of action is extinguished under the pre-existing statute of limitations.” ’ ” Shover,
Today, a majority of this court arrives, at exactly the opposite conclusion. Yet the General Assembly has not expanded the limitations period in the statute, nor have the words of the statute changed substantially since Shover was decided. When public policy considerations are placed aside, it is apparent that there are no reasons for disturbing the settled point of law decided in Shover. In Collins v. Yanity (1968),
II
The majority cites several cases to support its conclusion that the discovery rule may be applied to circumstances where the injury complained of does not manifest itself immediately. Specifically, the majority cites Cincinnati Gas & Elec. Co. v. Gen. Elec. Co. (S.D.Ohio 1986),
The holdings of this court in Skidmore, Liddell, Ault, and NCR plainly indicate that discovery of the injury is the defining event that triggers the running of the statute of limitations. The federal court stated likewise in Cincinnati Gas. In other words, until a person is aware that a wrong has been committed against him or her, the statute of limitations is tolled. Such a person must generally be aware that there has been an invasion of right that has damaged him or her in some way. Applying the most expansive interpretation of that principle here, the discovery rule would have tolled the running of the statute of limitations until December 15, 1992, which was the date the body of Ormston was found. More importantly, this was the date on which the county coroner indicated that the cause of death was “multiple stab wounds of trunk.” Thus, that date serves as the point in time at which the possibility first arose that a death was “caused by wrongful act.” See R.C. 2125.01(A)(1).
The coroner’s finding that the victim died of multiple stab wounds was sufficient to raise the question that a wrongful act had caused the death. Thus, at that time there could have been no doubt the plaintiffs became aware that a wrong had been committed against them. They were aware, or should have been aware, on December 15, 1992, that they had suffered an injury that could serve as the basis for an action in wrongful death. Given the tragic discovery on that date, it is simply not plausible that the plaintiffs here were not aware that a wrong had been committed against them until Sotka, the defendant, was convicted and sentenced.
In Burr, the remaining case cited by the majority, we held that the wrongdoer must be discovered, as well as the injury complained of, before the statute begins to run. Burr, at paragraph three of the syllabus. The underlying suit in Burr, however, was a cause of action for fraud, which is governed by R.C. 2305.09. This court interpreted that statute to mean that a cause of action for fraud does not accrue until both the fraud and the wrongdoer are discovered. In the instant
Given the lack of support for the majority’s reasoning in the case law, I am left to conclude that the rule established today deviates from the main principle of the discovery rule — that the statute of limitations for a claim be tolled until discovery of the injury. See O’Stricker v. Jim Walter Corp. (1983),
By purporting to rely on our prior case law, the majority effectively establishes a new definition of “injury” as it pertains to the discovery rule. The majority opinion states that “[i]n essence, the running of the limitations period is delayed until triggered by a ‘cognizable event’ that alerts the plaintiff that he or she was injured by the defendant.” The rule crafted today by the majority recognizes the conviction and sentencing of a defendant as the “cognizable event” that first alerted the plaintiffs here of an injury. Following the logic of the majority opinion, it would appear that the plaintiffs were unaware that a wrong had been committed, resulting in injury to them, until Sotka; the defendant, was proven, beyond a reasonable doubt, to have committed the murder.
I cannot agree with this conclusion. Surely, the survivors of a murder victim become cognizant that a wrong has been committed against them long before the conviction and sentencing of the perpetrator. A plaintiff may come to this conclusion upon learning of the victim’s death, or when facts are determined that raise a possibility that the death was caused by a wrongful act. See R.C. 2125.01(A)(1). In addition, the survivor surely endures pain and suffering long before the criminal trial of the accused. The majority’s view implies that there is no grief, no sense of loss, and no deprivation of love and affection arising from the loss of a loved one until a court determines the identity of a murderer. Such an implication, of course, defies common knowledge.
Ill
Equally troubling is the majority’s failure to distinguish between the requisite standard of proof in civil wrongful death actions and the standard applicable to criminal actions. The wrongful death statute provides a civil remedy to eligible persons when a death is “caused by wrongful act * .* R.C. 2125.01(A)(1). It
The majority states that the event of a death is “irrelevant unless there is proof that a defendant was at fault and caused the death.” The applicable standard of proof for finding a person at fault in a wrongful death action, however, is that of preponderance of the evidence. The determination to be made is whether the defendant is civilly liable (by a preponderance of the evidence) for causing the death of another, not whether the defendant is guilty of committing a crime for which the penalty is a deprivation of his or her life or liberty. See Shrader v. Equitable Life Assur. Soc. of the United States (1985),
First, the majority’s rule prevents the statute from running in a civil action until a person has been convicted and sentenced, under the standard of proof of beyond a reasonable doubt, in a criminal action. This rule thereby implies that a plaintiff cannot know that a wrongful act was committed for which civil liability may be established under a preponderance of evidence standard, until that act is proven beyond a reasonable doubt to have happened at a criminal proceeding. While it is true that the higher criminal standard encompasses the lower civil standard, it does not automatically follow that there are no facts available to a plaintiff to form the basis of a civil claim until a person is convicted and sentenced at a criminal proceeding. Plainly, facts discerned during the course of the criminal trial may form the basis of a wrongful death claim, regardless of whether the outcome of the criminal proceeding results in a conviction and sentencing.
I respectfully submit that the effect of the majority’s rule defies generally accepted principles. A potential plaintiff may certainly be aware of facts that would allow him or her to pursue a wrongful death action, even though those facts may not be sufficient to convict a person beyond a reasonable doubt. Those facts are often known long before a person is even tried on a criminal charge. It is dubitable that a potential plaintiff would remain completely unaware of facts
The majority states that “[a] crime may remain unresolved until well after the victim was killed and beyond two years after the victim’s death.” Under those facts, according to the majority, the survivors cannot pursue a wrongful death claim. I disagree. The resolution of a criminal investigation should not be a prerequisite to an action in wrongful death. In some instances, there may be insufficient evidence to convict, or even charge, a person for criminally causing the death of another. However, under the lower preponderance of evidence standard, the same evidence may demonstrate civil liability in wrongful death pursuant to R.C. 2125.01(A)(1).
To the extent that the identity of the defendant is not determined within the period of the statute of limitations, potential plaintiffs may preserve their rights by filing a complaint naming the defendant as unknown and then subsequently filing an amended complaint if the identity of the defendant is discovered pursuant to Civ.R. 3 and 15(D). In Amerine v. Haughton Elevator Co. (1989),
An application of those rules here illustrates that the plaintiffs could have, but did not, avail themselves of this opportunity. Considering the two-year statute of limitations that applies to wrongful death actions pursuant to R.C. 2125.02(D), the plaintiffs could have filed a wrongful death action naming a fictitious defendant any time between July 31, 1992 (the date of disappearance) and August 1, 1994.
Similarly, if the date of death was determined to be December 15, 1992 (the date of discovery of the body), the plaintiffs would have had an even longer period of time to amend a complaint originally naming a fictitious defendant. In such case, the plaintiffs could have filed a John Doe suit as late as December 15, 1994 and would have had until as late as December 15, 1995, to amend the complaint and serve Sotka — approximately two years and ten months after which the identity of Sotka was easily known due to his conviction.
IV
The majority’s rule completely eviscerates the statute of limitations in those situations where a defendant is never convicted of murder. A plain reading of the majority opinion compels the conclusion that the statute never runs if a defendant is acquitted, or if no person is ever formally charged with murder. Yet the language of the statute cannot be clearer — “An action for wrongful death shall be commenced within two years after the decedent’s death.” R.C. 2125.02(D). This court does not sit to strip statutory language of its meaning. “[I]t is the duty of courts to accord meaning to each word of a legislative enactment if it is reasonably possible to do so. It is presumed that each word in a statute was placed there for a purpose.” State ex rel. Bohan v. Indus. Comm. (1946),
Additionally, I am uncertain whether the statute would run, under the result reached today, in cases where the potential defendant in a wrongful death action is convicted and sentenced not for murder, but for a lesser crime involving the taking of a life, such as voluntary or involuntary manslaughter.
The foregoing analysis indicates the pitfalls of commingling the civil standard required to demonstrate that a death was caused by a wrongful act with the criminal standard of proof and the terms defining crimes that involve the taking of a life. However laudable the majoritys intentions may be in attempting to remedy the perceived inequities of rigidly applying the statute of limitations in wrongful death actions, even the most expansive application of the discovery rule here cannot toll the statute to the benefit of the plaintiffs. There is no adequate analytical or practical basis to support the proposition that the “cognizable event” alerting the plaintiffs of an injury against them occurred only upon the conviction and sentencing of Sotka for murder. The plaintiffs were aware that Angel Ormston’s death was potentially caused by a wrongful act committed by Sotka long before criminal judgment.
The rule crafted by the majority today is unique. None of our sister jurisdictions has established a standard resembling paragraph two of the syllabus.
A majority of the jurisdictions that have considered the issue do not apply the discovery rule to wrongful death actions. In Leo v. Hillman (1995), 164 Yt. 94,
Similarly, in Fulton Cty. Admr. v. Sullivan (Fla.1997), — So.2d —,
In Shover, we refused to apply our considerable powers simply to eliminate unfair results created by legislative inaction. The soundness of the precedent we established there is illustrated by the many jurisdictions in addition to Florida and Vermont that do not apply the discovery rule to wrongful death claims where the statute of limitations is plain on its face. Moyer v. Rubright (1994),
Even though a minority of the jurisdictions considering this issue have applied the discovery rule, none of those jurisdictions applies the rule so expansively that the statute will run only when the victim’s survivors discover that a defendant has been convicted and sentenced for murder. Many jurisdictions apply the rule only when the defendant has fraudulently concealed the cause of death. See DeCosse v. Armstrong Cork Co. (Minn.1982),
That the majority’s statement of law extends beyond the outer limits of how the discovery rule can be applied is demonstrated by an analysis of those jurisdictions that apply the discovery rule but impose a “reasonable diligence” requirement on the part of the plaintiff. In Allen v. Washington (1992),
In Alaska Dept. of Corrections v. Welch (Alaska 1991),
In this case, there was a newspaper article published in the The Plain Dealer on January 13, 1993 linking Sotka to the murder. Sotka was arrested on December 31, 1992 and indicted by a grand jury in January 1993. Thus, the plaintiffs were put on sufficient notice that a cause of action for wrongful death had accrued long before the conviction and sentencing of Sotka.
The only requirement of diligence established by the majority here is that plaintiffs should exercise reasonable diligence in discovering that a defendant is convicted and sentenced for murder. The import of this statement is that plaintiffs are effectively absolved from any responsibility to affirmatively determine facts that would form the basis of their civil cause of action. The only responsibility borne upon plaintiffs is to “discover” that a criminal conviction and
For the foregoing reasons, I respectfully dissent.
. Civ.R. 15(D) provides, “When the plaintiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words ‘name unknown,’ and a copy thereof must be served personally upon the defendant.”
. Pursuant to Civ.R. 6, the plaintiffs would have had until August 1, 1994, to file their original complaint, because the last day of the limitations period (July 31, 1994) was a Sunday.
Dissenting Opinion
dissenting. Although I agree that the discovery rule should apply to wrongful death actions involving a murder, I do not agree that the cause of action should accrue upon the conviction and sentencing of the defendant who is responsible for the murder. Instead, I believe a cause of action for wrongful death should accrue when the injury is discovered, i.e., that a murder or other foul play has resulted in a person’s death.
This court has historically applied the discovery rule to situations where the injury was not, or could not have been, discovered through the exercise of reasonable diligence. I would apply that same rationale to wrongful death situations involving murder or foul play. This approach would be consistent with precedent.
I agree with Chief Justice Moyer that the majority’s extension of the discovery rule deviates from the main principle of the discovery rule — that the statute of limitations for a claim be tolled until discovery of the injury — and creates an entirely new standard that depends upon proof of murder in a criminal case, not discovery of the injury.
I also agree with Chief Justice Moyer that the requirement of a conviction and sentencing confuses the requisite standards of proof in a civil wrongful death action and in a criminal prosecution. In many cases, the victim’s family knows, or should have known through the exercise of reasonable diligence, who committed the murder, yet the statute of limitations for a wrongful death action now runs only if the person responsible is convicted and sentenced under the more difficult “reasonable doubt” standard of proof in criminal cases. The opinion is silent as to what happens to the two-year statute of limitations where the family may know who is responsible for a victim’s death, yet the person who caused the death has evaded the criminal justice system through a technicality or failure of proof of guilt beyond a reasonable doubt. What happens if the person who is charged with murder is convicted of a lesser charge, such as negligent homicide or involuntary manslaughter? Does the majority’s discovery rule apply only to murder convictions?
The factual components that result in one’s conviction for a lesser charge may form the basis for a finding of civil liability for the wrongful death of another. For example, a defendant may avoid a murder conviction, yet be found guilty of involuntary manslaughter because of a claim that the deceased provoked the defendant into a fit of sudden rage. However, such facts may be sufficient to support a finding of civil liability for wrongful death if the defendant’s actions exceeded the culpability of the decedent’s actions.
I believe that applying the discovery rule to the actual date the injury is discovered, i.e., that a murder or other foul play has resulted in the death of another, is logically sound and consistent with precedent. The discovery of a murdered person is a cognizable event sufficient to trigger the statute of limitations. At that point, the family knows, or with reasonable diligence should know, that a wrongful death has occurred. A person’s disappearance is insufficient because the person may have voluntarily disappeared or may have been kidnapped but is still alive. Even the discovery of a dead body may not be sufficient when accident and suicide remain possible explanations. A legal determination by the county coroner that the death is the result of a homicide may be necessary to establish that a wrongful death has, in fact, occurred.
This position is consistent with our previous holdings in Oliver v. Kaiser Community Health Found. (1983),
While I applaud the goal of the majority to allow an injured party to seek compensation, I cannot agree with its solution of creating an extension of the discovery rule. Therefore, I respectfully dissent.