*1 Nо. C-1047 Crownover, surviving spouse and Ernest Ernest Crownover of Ardyce K. M.D. and Thomas Kennedy, v. Theodore Crownover M.D.
(574 497) Rehearing September denied 1977. October 1977. Decided *2 Thorn, Mellman, P.C., Johnson, and Douglas Mellman W. for peti- tioner. Renner,
Paul D. for respondent.
En Banc.
MR. JUSTICE KELLEY delivered opinion of the Court. granted We certiorari to review the decision of the court of appeals Crownover App. con- struing the statute wrongful act, of limitations which part of death section 13-21-201 to C.R.S. 1973. We affirm.
The question presented for review is whether the of limita- tions, section runs from the date of death from wrongful act, neglect, or which default resulted the death. following
The issue arises in the factual context. Petitioner filed a wrongful Gleichman, M.D., death complaint Theodore K. Sep- on 24, 1974, tember 1973. On October as the result of ob- information through tained discovery proceedings, petitioner join moved to Thomas M.D., Kennedy, as a granted, defendant. That motion wаs and on Novem- ber petitioner served a summons amended re- complaint on spondent Kennedy. The alleged negligence respondent of Kennedy con- sisted of the failure growth to discover a cancerous in рetitioner’s wife’s chest when he examined her on X-rays July 1971. The cancer was dis- during covered surgery on April 1972. Petitioner’s wife on died Janu- ary allegedly as the result respondent Kennedy’s negligence. Thus, it appears that the summons and аmended were complaint served within two of the date of but more than two years after the discovery of the Respondent Kennedy cancer. thereupon moved for summary judgment ground on the the claim for wrongful death against him was barred The limitations. motion was granted.and appeals the court of affirmed. petitioner contends that a statute of begin limitations cannot
run until the cause of action accrues and that to hold that the statutе of limitations, act, wrongful begins under the death to run oc- before death curs creates an It petitioner argues, anomalous sit. ation. is possible, the statute of limitations to run before death occurs and thus bar the continuеs:
claim. Petitioner of the deceased give intended to survivors obviously Legislature “The by extinguish- accomplished cannot be the death. This of action for cause before it ever arises.” of action ing a cause 1877, аnd it remains un- wrongful death act in its adopted
Colorado Colorado’s material to our discussion.1 changed as it is insofar Act which was passed Campbell’s after Lord patterned act was followed the Assembly in 1846.2 Had the Generаl Parliament English of Lord provisions it did the other closely as provision However, the Act, controversy depar- would not be here. this Campbell’s respective an examination of the readily apparent from is crucial as ture texts. Act, pertinent part, provides: Campbell’s
Section III of Lord within every action shall be commenced Twelve Calendar “and that such Person,” (emphasis such Months deceased after *3 statute provision the оf the Colorado states: corresponding Whereas 13-21-203 shall be provided by “All actions for sections 13-21-201 to brought years alleged within two the the commission from of (emphasis resulting brought.” in the death which suit is negligence added).
Although
Assembly
we сould
as to
the first General
speculate
why
Campbell’s
pro-
elected not to follow Lord
Act in
to the limitations
respect
vision,
interpreting
language
we would still be faced with the task of
the
Although
language
arguably
preсise
the
of our statute is
less
than
used.
law,
leads
the
that it
different
English
inevitably
the
it
to
conclusion
sets a
of the
of the statute of limitations.
time for the commencement
until
apply
did not have occasion to
the statute
1949
This court
156,
recognized
Liley,
(1949).
Fish v.
The factual situation in Fish v. is not that here. petitioner in Fish from which the drew may occasioned statements Howеver, Zimmerman, 381, some comfort. 127 256 in Franzen v. Colo. (1953), wrongful where the tort occurred December case 28, 1949, 5, 1947, 4, July was filed complaint June and the occurred 1950, court, Liley, citing the without Fish v. said:' CSA, §2; §4l-l-2; §2057; §6303; §878; §1031; C. CRS C. L. 1G. L. G. S. R. S. §41-1-2. Viet., Act, (l Campbell’s ch. 93 2Lord 9 & 10
51 years been within the hаving “The action not filed two after commission of alleged negligence, said in the death injured the to have resulted of the husband, it barred section . . . by .” interprets holding petitioner our DeCaire v. Public Service
Co., 173 as supportivе position. Colo. 964 of his The trial court and the court of it in of appeals support contrary cited the view. The basic issue in DeCaire related to the question injury when the begins occurred. We there held that the statute оf limitations to run when injured damaged has alleged negligence.3 the claimant been or the injury damage In the instant case the Kennedy’s from Dr. al 26, 1972, leged negligence was known or should have been known on April when the deceasеd underwent the surgery large doctors discovered areas of cancerous tissue in her It not until November chest. was summons, Kennedy that Dr. was served with a more than from two “discovery” alleged negligence. the of the See 172 Owens Colo.
Further, without torturing statute, diffi language the of the it is cult to see how language one could the to mean interpret statute anything other than what it says brought “all actions . . . shall be within two years alleged negligence from the resulting commission of the in the death for brought.” result, which suit is is an If this unfair rem edy for its correction Assembly. lies with the General
Finally, we must adhere the well-established rule statutory construction that legislature when a reenacts a repeatedly statute which construction, has judicial theretofore received a settled there can be no doubt as to legislative circumstances, intent. such In it must be consid particular ered that understanding reenacted with there be judiciаry adherence to its former construction. Herbertson *4 Russell, 110, v. 150 Colo. 371 422 and cases cited therein.
The judgment is affirmed.
MR. partic- JUSTICE LEE and MR. JUSTICE ERICKSON do not ipate.
MR. JUSTICE CARRIGAN dissents.
MR. dissenting: JUSTICE CARRIGAN
I respectfully dissent. Judge Smith in lucid Appeals his dissent in the Court of pointed out that the decision (and here) reached there affirmed today blindly follows 136, 105, 1974, recently Ct., 3This court as in as in v. 522 P.2d obiter Ferrari Dist. 185 Colo. dictum, noted relating that “our the time statute of cases commences with limitations to death injury. (1949).” C.R.S. Liley. 41-1-4. Fish P.2d 930 See v. 120 Colo. 208 52 v. Public Service Kelley’s opinion DeCaire words of Mr. Justice (1971) regard
Co.,
slightest
without the
for
To holds of limitations be- action, gins to run to bar wrongful may actually bar such an — action, occurs, language beforе the of Judge Smith absurd.
Indeed,
us,
in the case before
if the
had
only
decedent
survived
four
did,
longer
months
than she
the rule
would
today adopted
required
holding that her
wrongful
husband’s claim for her
death was barred before
she
require
died. That rаtionale would
that we either hold the statute of
limitations unconstitutional as denial
or overrule our
process
pre-
of due
holdings
away
vious
that a statute of limitations cannot take
a claim for
relief before the claimant
his
opportunity
day
has an
for
court. Owens
(1970);
Senger,
The majority opinion totally overlooks the fact that the malpractice wrongful claim and the death claim are two different claims held dif- ferent claimants. Instead the two claims are treated as if were they a sin- gle Moreover, “cause of action.” the totally separate and different statute 13-80-105, governing (Section 1973) of limitations malpractice C.R.S. if treated as it were the governs wrongful (Sec- same statute that death. tion two-year As a result of this confusion the statute of malpractice limitations which commenced to run malpractice claim for is held to have sepa- barred the husband’s wife’s rate claim for death about four months after the death claim lived, came long into existence. So as the wife the husband had no control over her claim malpractice. He could have filed any not action to re- general cover damages injuries, for her belonged for that action to her. *5 ran, Thus when the malpractice against statute of it ran her only. claim The effect of the majority opinion separate is to hold that the wrongful death by claim owned her is somehow barred surviving spouse about four months after her a statute which commenced against totally separate a claim owned her. It is fundamental that the wrongful death created in the husband a plaintiff new claim re- lief occurrence of the death. Thus the upon two-year statute of limitations wrongful death actions could not have governing commenced to run the his husband until wife died. At her the mal- agаinst two-year limitations, which been her running against statute of had mal- practice claim, to run her. the ceased Since husband had not simply practice consortium) the mal- claim for loss (except had possibly malpraсtice not have run to bar the action which did statue of limitation could practice — wrongful yet not exist action. of limitations are enacted for the salutary
Statutes purposes dis- couraging forestalling delay prosеcution of stale nearly claims. For all Colorado, torts in including negligence, most professional (Section limitations is years. six Thus the medi- cal profession already provided has been a privileged sanctuary by enaсt- ment of special two-year statute of limitations covering professional negligence by physicians. Today’s decision with its adoption of a four- limitation, facts, month on these and complete immunity from suit if the malpractice victim dies two or more after malpractice, will not well serve long-term interests healing of the arts or of sound public policy. limitations, Inordinately short statutes of regarding doubts statutes, meaning of such force simply attorneys to file actions as soon as possible rather than risk having conditions, them barred. Under those many actions are filed which would not have been filed had there been time for careful investigation and medical consultation.
In my majority view the employed a statute intended as a shield against stale claims justice. sword to cut off access to As this Court recognized in Owens v. supra: say “To to one has been who wronged, ‘You had a remedy, but before the wrong (or was ascertainable available) you, the law stripped you of your remedy,’ makes a mockery (Parenthetical law.” words 603, 606, quoting Berry Branner, 245 Ore.