101 N.C. App. 508 | N.C. Ct. App. | 1991
Lead Opinion
Plaintiffs first assignment of error brought forward and argued on appeal is set out in her brief as follows:
The presiding judge at the hearings erred and abused his discretion in granting Defendants’ various motions to dismiss Plaintiffs claims based upon the assertions that Plaintiffs Complaint failed to state a claim upon which relief could be based or was filed after the expiration of the applicable statute of limitations, on the grounds that said Complaint did state a proper claim upon which relief could be granted and was filed within the applicable statute of limitations.
G.S. l-15(a) provides that “[c]ivil actions can only be commenced within the periods prescribed in this Chapter, after the cause of action has accrued . . . .” The applicable statute of limitations for bringing an action for wrongful death is set out in G.S. 1-53 which provides:
Within two years —
(4) Actions for damages on account of the death of a person caused by the wrongful act, neglect or fault of another under G.S. 28A-18-2; the cause of action shall not accrue until the date of death. Provided that, whenever the decedent would have been barred, had he lived, from bringing an action for bodily harm because of the provisions of G.S. 145(c) or 1-52(16), no action for his death may be brought.
Plaintiff argues that the governing statute of limitations in this matter is two years from the date of decedent’s death as provided in the first sentence of G.S. 1-53(4) and that her complaint was timely filed within this period. Plaintiff further argues that the
Parts of the same statute, dealing with the same subject are to be considered and interpreted as a whole and every part of the law shall be given effect if this can be done by any fair and reasonable intendment. Fishing Pier v. Town of Carolina Beach, 274 N.C. 362, 163 S.E.2d 363 (1968). It is clear, on the face of the statute, that the legislature intended for both sentences of G.S. 1-53(4) to be construed together in determining the applicable limitation period for instituting a wrongful death action. Therefore, it is incumbent on this Court, as it was on the trial court, to apply the statute in full to determine whether plaintiff’s claim was timely filed.
In the present case, if decedent had lived and had brought an action to recover damages for personal injuries allegedly resulting from the negligence of these defendants, the applicable statute of limitations would have been three years from the date the “. . . bodily harm to the claimant . . . becomes apparent or ought reasonably to have become apparent to the claimant .. .” as provided in G.S. 1-52(16). The evidence presented shows that, at the latest, plaintiff and the decedent were made aware of his bodily harm, namely liver cancer, on 29 August 1985, following a laparotomy and biopsy at Duke Medical Center. The decedent, in fact, acknowledges this fact on the forms requesting medical leave from his employment. Therefore, the undisputed evidence in the record indicates that “had he lived” decedent’s claim would have accrued on 29 August 1985 and would have been barred if not instituted before 29 August 1988. Plaintiff did not file this action until 23 June 1989. Plaintiff’s claim is thus barred since G.S. 1-53(4) makes it clear that a claim for wrongful death is barred if not instituted within the time period in which decedent could have brought the action “had he lived.”
We have reviewed plaintiff’s remaining assignments of error and find them to be meritless. The orders of the trial judge entering summary judgment in favor of defendants and dismissing plaintiff’s action will be affirmed.
Affirmed.
Concurrence Opinion
concurring.
It seems anomalous to me that this plaintiff’s right to sue for the wrongful death of her husband — a right which did not accrue until his death — must be cut off by a limitations clock which started running well before his death; but that appears to be the law. I believe this problem merits legislative reconsideration.
