*1 E. Dil F. and Edward Lorraine PALMER Jr.,
lon, personal representatives of the Palmer, Appel P. of Merrett
Estate
lants, CORPORATION
BORG-WARNER Marvel-Schebler/Tillotson,
its Division Company Aerospace Products
Facet Inc.; Enterprises, and Ed
and Facet DePriest, Appellees.
ward
No. S-3318.
Supreme Court of Alaska.
Nov.
Rehearings Denied Oct. Nov. Smith, Smith, Patter- D. &
Steven Coe son, appellants. Anchorage, for Hunter, Barker, David T. Lane Powell & Anchorage, appellees. MATTHEWS, C.J., Before RABINOWITZ, BURKE, COMPTON MOORE, JJ. *2 anniversary of the before the second
OPINION against filed suit Swanson’s estate BURKE, Justice. airplane engine, Borg- manufacturer of the Warner, specifically alleging that a defec- appeal on is whether presented The issue caused the crash. The tive carburetor sum- properly granted court superior against Borg-War- filed suit estate Borg-Warner, mary judgment in favor of 20, 1988, years September ner on two component manufactur- airplane engine days learning nine of the accident. after er, the two- its conclusion that based on 09.55.580(a), limitations, year statute of AS 1988, Borg-Warner In December moved brought by wrongful death claim barred summary judgment against the Palmer for killed in an air- passenger the estate estate, arguing that the estate suit for Specifically, we must decide plane crash. two-year wrongful death was barred personal representatives whether The statute of limitations. Palmer estate claim notice of estate had and, opposed January the motion years more than two Borg-Warner partial summary filed its own motion for conclude, filing complaint. their We judgment, arguing September “[a]s court, the com- superior as did the 20, 1986, know, nor could Plaintiffs untimely. we affirm. plaint was they expected
know, aircraft that the carburetor of the The estate ... have been defective.” that its suit the manufac- claimed was, therefore, timely. superior The 8, 1986, turer Piper aircraft September On granted summary judgment for crashed, Range, roughly thir- court in the Brooks ruling pilot, Borg-Warner, time-barred ty miles south of Umiat. Both Swanson, Mer- The Palmer estate passenger, and his as a matter of Kenneth law. Palmer, undisputed appeals. killed. It is rett were her was informed of
that Palmer’s widow
September
1986.1
husband’s death on
II
1, 1986,
engine
aircraft’s
On October
helicopter from the scene
was removed
A
transported to Fair-
the crash and later
Transportation Safe-
The National
banks.
wrong
for
period
The
(NTSB)
investiga-
ty Board
commenced
years.
suits in Alaska is two
AS
ful death
issued
tion as to the cause of
crash and
09.55.580(a).
literally
peri
such
applied
If
n
findings
July
of 1987. The NTSB
death, in
day
this
od would run from
ultimately
proba-
there was
concluded that
September
1986.2
&
ease
See Gudenau
crash occurred due
cause to believe the
ble
Insurance, 736 P.2d
Sweeney
v.Co.
pilot
error.
(Alaska 1987)(“Older
applied
cases
this
literally
_any
initiated
report also indicated that
The NTSB
bar
plaintiff ...
engine
only
im- more than two
after the
teardown revealed
“[t]he
damaged.”);
also Rus
damage.”
July
tortiously
fire
see
pact and
On
Anchorage, 743
personal representatives
Municipality
for Palmer’s
sell v.
(Alaska 1987)(statute of limi
death action
estate filed
normally begins
on the date
pilot,
of the aircraft’s
Kenneth
tations
to run
the estate
have,
September
day
plaintiff
injury).
On
one
suffers the
Swanson.
legal
apparently
provides
time
submitted an affidavit
2. AS 01.10.080
widow
limitations,
"comput-
indicating
first had
such as a statute of
is to be
that she
notice of
hus-
day
including
September
party,
by excluding
on
10. Neither
ed
the first
band's death
however,
6(a) ("[T]he day
disputes
finding by
superior
last.” See also Alaska R.Civ.P.
act, event,
or
from which the
court that she had such notice on
and,
default
appeal,
designated period
begins
purposes
to run is not to
of this
we will consid-
of time
included.”).
controlling.
The statute of limitations in this
er the later date
death,
that,
however,
tolling
notification of
statutes
in the context of
has an
claimant
affirmative
limitation,
discovery rule3
adopted the
duty
all
causes of
in cases where the
applies
ex-
action before
limitations
notice
a claim. Under
lacks immediate
*3
pires.
756
at 292
Safety,
Mine
P.2d
trigger date is the
the
the limitations
(the
concerning the
of the
nature
has
person
a reasonable
“date when
knowledge of the whereabouts of
injury,
person
alert
that
enough information to
product,
the
of
the
existence
defective
potential
he
has a
cause
that
or she
investigative report
about the incident
protect
begin inquiry to
his
action or should
day of
to the claimant the
were available
Appliances v.
Safety
Mine
rights.”
accident;
knowledge
the
the claimant had
1988);
288,
Stiles,
P.2d
291
756
prompt a
enough
facts to
reasonable
Sharrow,
1334).
In
(citing
658 P.2d at
investigate shortly
person
after the acci-
Int’l,
Helicopter
694
v. Bell
Hanebuth
dent).
143,
(Alaska 1984), we held that
P.2d
146
discovery
applies to Alaska’s
airplane
the
doctrine
Upon notification of an
has,
crash,
person
death statute.
a matter
a reasonable
as
law, enough
to be alerted
information
bar,
court, in
In the
at
the trial
case
inquiry”
concern
she “should
summary
ruled
granting
judgment,
ing
of action
the
potential
cause
run
the
of limitations should
pilot, the carrier or the manufacturer. See
from,
latest,
11th,
September
at the
1986.
Inc., 106
Westinghouse,
v.
Reiterman
the
That
the date when
(1981)
Mich.App.
308 N.W.2d
614
of the
as
plaintiffs were notified
death
(“as
product
where
a matter oí law ...
discovery
wreckage. They
as
of the
well
instrumentality
the
of death the fact
duty
obligation
from that
had an
been
has
product
defective
meaning-
point
investigate
in time
then
been manifested.
It
is'
incumbent
any potential
ful manner
[defendants].
prod
upon the survivors to
summary
reviewing
grant
When
liability.”).
gener
uct
determine
“[T]he
duty is
judgment, our
to determine whether
safety
al
record of air travel and
fact
genuine
there was a
issue material
technology
present
compel
us
state
air
moving party was entitled
and whether the
crashes do not normal
conclude that air
applicable
judgment on the
law
ly
negligence,
in inclem
occur absent
even
Safety, 756 P.2d
established facts. Mine
Sky
Widmyer
ent
v. Southeast
weather.”
291;
Air
Zeman v.
German
(Alaska 1978).
Inc.,
1, 14
If
ways,
584 P.2d
Lufthansa
(Alaska 1985).
lines,
P.2d
re
diligently
would have
inquiry,
pursued,
summary judgment
inap
is an
Ordinarily,
fil
justify
vealed sufficient information to
ascertaining
when a
propriate means
period,
two-year
limitations
within
limitation commences. Mine
statute of
tolling the
equitably
we
no basis for
see
292; Russell,
Safety, 756 P.2d at
statutory time limitation.
(Alaska 1987). Where,
n. 11
at 375-76 &
reasonably
however, there exist uncontroverted facts
being
known from
date of
person
when
reasonable
that determine
potential claims
of the crash that
informed
notice,
on
“we
carrier,
or the
pilot,
existed
question as a
can resolve the
matter
notified of
manufacturers. The estate was
P.2d at
Safety, 756
law.” Mine
Sep
in the
crash on
Palmer's death
1986. The limitations
court. A
affirm
trial
care
tember
began
on
date.4
reading
Safety
Mine
establishes
ful
dissent,
case, therefore,
Compton argues that
actually
Justice
"[i]t
In
would
day following
reasonably
September
simply
run on
be said that Palmer
cannot
,
day
death.
of Palmer's
possibly
car-
defective
have known
Dissent
30th.”
buretor before ...
Bookman,
657 P.2d
3. Greater Area Inc.
omitted).
ignores
focus
(emphasis
This
the true
Archer,
(Alaska 1982);
see also Sharrow
claimant
we
not insist that a
this case:
do
(Alaska 1983).
Septem-
filed
against Borg-Warner was
on
court held that
the date of the
“[u]ntil
days
crash,
after the limitations
ber
plaintiffs had no opportunity
nine
period expired.
alleged
know
defective condition of
landing gear....
statute of
[Thus the]
holding
prior
is consistent with our
Our
began
limitations ...
to run on the date of
Gudenau,
decisions. In
we reasoned that
collapse,
plaintiffs
which is when
knew
the insured was alerted to a
cause
or should
alleged
have known of the
de-
his
of action
insurance broker
learning
pay
plaintiffs
that the insurer refused to
on fect.” Like the
in Volpar, the
Gudenau,
a claim.
tifying negligence for
investigate a
course
needed
Moreover,
reports
pre-
NTSB
are
bility.
filing
suit.
admissibility in
civil suits
cluded
1441(e);
however,
case,
U.S.C.App.
it cannot be said
damages. See 49
In this
§
have a
Chevron, USA,
the Palmer estate did not
“rea-
779 F.2d
Curry v.
opportunity” to
suit
sonable
(5th Cir.1985);
Travelers Insurance Co.
two
from the
Cir.1982). Borg-Warner within
(4th
Riggs,
F.2d
the accident.6
date Mrs. Palmer learned of
Harvey,
Co. v.
See also Beech Aircraft
investiga-
assuming
Even
NTSB
1976).
investiga-
precluded
tion
the estate’s own
efforts,
had fourteen
tion
still
reject
es
similarly
the Palmer
*5
the
months after the NTSB released
wreck-
argument
the statute must be
tate’s
age
investigation
its own
into
to conduct
“legal
had no
access” to
tolled because it
the cause of the crash before the limita-
the
was conduct
the
while NTSB
Moreover, during
period expired.
tions
ing
and
this fact nec
investigation
its
period
in which the
not
was
accessi-
requires
period to
essarily
the limitations
ble,
impeded
possible in-
no barrier
other
period
be
The limitations
runs
tolled.5
vestigations
such as that of
relevant
inquiry
date
Inaccessi
from the
of
notice.
literature.
persuade us
bility would
to toll
limita
period
the claimant does not
tions
where
pilot’s
also note that the
estate filed
in
to
a
time which
investi
reasonable
timely
against Borg-Warner
a
However,
gate
file
his cause
action.
that,
passenger’s
that the
estate admits
but
every
or inaccessibility
obstruction
will
suit,
not
pilot’s
not
estaté would
operate
Hanebuth,
to toll the statute. See
pursued
It is
to
this action.
difficult
(equitable tolling wrong
694 P.2d
estate
see how Palmer’s
lacked
reason-
period
in
ful death limitations
undertaken
opportunity
light
file
in
able
to
suit
litigant
circumstances where
has not had
pilot’s
timely filing.
has
estate’s
There
“any
opportunity”
to
showing
period
reasonable
that the limitations
been no
suit).
Thus,
Delays
investigating
being
in
causes of
ma-
insufficient.
there
no
potential
action and
defendants are to be
as to
terial facts
issue
the timeliness
claim,
anticipated.
Mergenthaler v.
we
Asbestos
hold that the estate failed
regulations
ty
present
5. The Palmer estate relies on federal
record
air travel
state
point
apparent
technology compel
exclusion from the
air
us to conclude that air
wreckage.
normally
negli
aircraft
The
cites 49
do
absent
crashes
gence,
not
occur
830.10(b),
831.9(c),
Widmyer
§
§
C.F.R.
49 C.F.R.
and 49
even
inclement weather.”
Inc.,
standing
proposi-
(Alaska
§
C.F.R. 831.10-.il as
for the
Skyways,
Southeast
584 P.2d
precluded
Thus,
inspecting
1978).
that it
reasonably
tion
wreckage pending
the estate
should have
investigation.
the NTSB
being
known from the date of
informed of
estate,
according to the Palmer
statute
claims
crash
pilot,
existed
during
carrier,
of limitations
tolled
be
One
or
manufacturer.
access,
time the estate had no
notice,
and hence no
“connecting
pointed out
commentator
of their
claims.
injury
mishap]
an aviation
to manufactur
[in
lengthy process, and
flaw often is a
one
Borg-Warner disputes this
contention
liability
primary dangers
products
the
plaintiff
law,
claims that
federal
under
the estate could
that,
general
products
is
as a
lia
sought permission.
have had
it
access if
exempt
bility cases are not
from the statute of
purposes
We assume for
of this review that
Note,
Liability, the Stat
limitations."
Products
the estate is correct.
Limitations,
Discovery
and the
Rule
ute of
After
Airplane
are
Corp.,
accidents
not unusual in Alaska.
Coast
North
Air v. Grumman
Willam
Yet,
general
(1989).
we have concluded that "[t]he
safe-
ette L.Rev.
against Borg-War-
reasonably
file its
tiff discovered or
timely
ner.
discovered the cause of the
which
not be
until
could
determined
after wreck
grant
summary judg-
trial
court’s
found);
age
Area Incorporated
Greater
dismissing
estate’s
ment
Bookman,
AF-
Borg-Warner
as
time-barred is
1982) (in malpractice
against attorney
suit
FIRMED.
register
for failure to
stock as required.by
COMPTON, J., dissents,
security laws,
state
with whom
RABINOWITZ, J.,
joins.
run until a
discov
reasonably
ered or
should have discovered
COMPTON, Justice, with whom
existence
all elements of his cause of
RABINOWITZ, Justice,
joins, dissenting.
action,
attorney’s negligence
not
oc
when
By holding that the statute of limitations
curred). Before a claimant receives notice
(statute) begins
to run
the'mere no-
prompt
of facts sufficient to
a reasonable
death,
tice of
or
the court
person
begin inquiry
protect
his or
misapplying
either
a settled rule of law
rights,
the claimant is not
to be
deemed
overruling
long
line of
cases.
Alaska
Rather,
omniscient.
a claimant is deemed
rule, properly
I
Since
the settled
believe
only to “have
of all
notice
correct,
applied,
dissent.
reasonable
would
Rus
disclose.”
An
accurate statement
the settled
sell,
counsel compo- manufactured a everybody who
sue aircraft, though even
nent used any suing no for has factual basis
counsel
particular manufacturer. having filed
will not be dismissed limitations, the statute of but
beyond may, probably Rule sanctions
Civil
should, really Do we want be horrendous. for baseless law- provide incentive all I possible defendants?
suits court Apparently not. thinks oth-
think
erwise. quite is from an air
This case different survivors, in which there are wit-
disaster
nesses, readily other available sources of “engine trouble”
evidence investigated at the
might be inferred or frequently
very outset. The able NTSB custody wreckage within hours
to take such circumstances it
of a crash. Under expect reasonable to survivors or begin
representatives decedents inves- plane
tigation of the causes of a crash
immediately. were no Here there surviv- witnesses,
ors, investigato- no and no other Further, explore. it
ry avenues
illegal inspect for Palmer to be- Our
fore settled holds that statute of limitations
of law Ac- to run before that date.
cannot
cordingly, dissent. FLISOCK, Appellant,
Peter E. Alaska, DIVISION
The STATE OF BENEFITS,
RETIREMENT AND
Appellee.
No. S-3725.
Supreme of Alaska. Court 4, 1991.
Oct.
