Unpublished Disposition, 934 F.2d 324 (9th Cir. 1990)

MEMORANDUM^**  AND ORDER CERTIFYING QUESTION TO

MONTANA SUPREME COURT

In this diversity action, Edith Carroll seeks damages arising from the death of her husband, a former W.R. Grace & Company ("Grace") employee, from asbestos-related disease. She filed a survival claim and a wrongful death claim, and the district court held that both were barred by Montana's three-year statute of limitations. Carroll now appeals on three grounds.

First, she claims that there is a material factual dispute regarding when she and her husband first knew or should have known that his health problems were asbestos-related; she therefore contends that judgment as a matter of law was improper. Second, she argues that the district court misapplied Montana's discovery rule to her survival claim. Third, she contends that the district court erred in ruling that a Montana wrongful death claim accrues before the death of the decedent. We now affirm with respect to the first two questions, but we certify the third question to the Montana Supreme Court.

* Charles Carroll was employed in Grace's vermiculite mine in Libby, Montana from 1958 through 1976. During his eighteen-year tenure, Carroll was exposed to tremolite asbestos, a natural contaminant of the ore mined at the Libby facility. From 1967 to 1976, Carroll underwent annual chest x-rays provided by Grace. As early as 1972, Carroll's x-rays began to show some evidence of lung disease including fibrosis and possible pneumoconiosis ("black lung" disease). That year, Dr. Roger Brus reported "the possibility of minimal fibrosis in the bases, particularly on the right" and suggested that "there may be some pneumocon [i]osis developing." (Excerpt E, p. 24).

Non-company physicians similarly found evidence of lung disease consistent with asbestos exposure as early as 1972. Following a 1972 admission to Sacred Heart Medical Center in Spokane, Washington for a heart examination, Carroll's discharge report noted that he had undergone a " [y]early chest x-ray because of previous Asbestosis." (Excerpt E, p. 23). Again in 1976, Carroll's hospital records indicated pneumoconiosis, silicosis, and possible asbestosis. (Excerpt E, pp. 28-29). A 1980 emergency room record lists asbestosis as the sole reason for Mr. Carroll's visit. (Excerpt E, p. 31). In 1984, records from a visit to the Veteran's Admininstration Hospital in Spokane, Washington noted in quotations that Mr. Carroll had a history of asbestos exposure and shortness of breath. (Excerpt E, p. 32). Correspondence directed to Carroll by Grace on January 9, 1985 stated that Carroll's chest x-rays from 1983 showed " [s]evere impairment in one ... test [ ] which you may wish to discuss with your doctor" and "changes that are consistent with previous dust exposure." (Excerpt E, p. 34).

In his later years, Carroll's heart problems began to be overshadowed by his lung problems. On January 7, 1987, Carroll was admitted to Kalispell Regional Hospital for five days "for evaluation of progressive shortness of breath." (Excerpt E, p. 37). At that time, Dr. James McCreedy diagnosed " [c]hronic restrictive pulmonary disease with hypoxemia, felt to be secondary to asbestosis, not biopsy proven." (Excerpt E, p. 37).

Prior to her husband's death at the age of seventy-six on February 22, 1989, Mrs. Carroll recalls discussing Mr. Carroll's heart condition with various physicians, but she does not recall any discussions regarding the possibility that her husband had asbestosis. Mrs. Carroll contends that she was unaware that her husband had an asbestos-related disease until she received his autopsy report. The autopsy attributed the cause of death to "severe interstitial fibrosis with pulmonary failure, apparently due to 'asbestosis.' " (Excerpt E, p. 43).

Mrs. Carroll filed her survival and wrongful death claims against Grace on April 6, 1989, alleging that her husband had suffered injuries and had died as a result of job-related asbestosis. In response, Grace filed a motion for summary judgment, alleging that Carroll's claims were filed outside of the applicable statute of limitations. On May 18, 1990, the district court granted Grace's motion on both claims, and Carroll filed this timely appeal on June 15, 1990.

II

The parties agree that the relevant statute of limitations for both survival and wrongful death claims provides three years within which to file suit. See Mont.Code Ann. Sec. 27-2-204 (1989). For purposes of determining when a cause of action accrues under this statute, Montana has adopted the "discovery" rule:

The period of limitation does not begin on any claim or cause of action for an injury to person or property until the facts constituting the claim have been discovered, or in the exercise of due diligence, should have been discovered by the injured party if:

(a) the facts constituting the claim are by their nature concealed or self-concealing; or

(b) before, during, or after the act causing the injury, the defendant has taken action which prevents the injured party from discovering the injury or its cause.

Id. Sec. 27-2-102(3). In addition, " [t]he rule in Montana ... is that whether an action is barred by the statute of limitations is [a question] for the jury [only] when there is conflicting evidence as to when the cause of action accrued." Hill v. E.R. Squibb & Sons, 181 Mont. 199, 212, 592 P.2d 1383, 1390-91 (1979). Absent conflicting evidence, therefore, at what point the Carrolls knew or should have known that Mr. Carroll's disease was asbestos-related remains a question of law. In this case, there are no conflicting facts.

Although she disputes none of the evidence that suggests an awareness of asbestos-related problems in her husband's medical record, Mrs. Carroll claims that her own affidavit constitutes conflicting evidence and therefore, that the statute of limitations question must be put to a jury. She asserts that given her contrary statements and the absence of any testimony that her husband knew that his condition was asbestos-related, the district court could not properly have discerned his state of knowledge regarding his medical condition. The discovery rule, however, imposes an objective rather than a subjective standard, and the objective evidence in this case is not disputed.

Moreover, this court has held that where a plaintiff's claims are contrary to the evidence, the appropriate question for review is "whether the undisputed facts in this case provide an inadequate basis for summary judgment." Braxton-Secret v. A.H. Robins Co., 769 F.2d 528, 531 (9th Cir. 1985). Mrs. Carroll correctly asserts that because she is the non-movant, the court must presume her statements true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. Cress and Co., 398 U.S. 144, 158-59 (1970)). Yet, even if construed in her favor, her statements simply reflect her own belief about her husband's awareness of his disease and do not constitute conflicting evidentiary facts. In short, the district court appropriately decided the accrual issue as a matter of law.

III

Under Montana law, a decedent's successor or personal representative may prosecute a decedent's personal injury claim if the limitation period for that claim has not yet expired. See Mont.Code Ann. Sec. 27-1-501 (1989). Such "survival" actions are derivative, and the relevant question for purposes of accrual is when the decedent first knew or should have known the agent of his injury. Thus, even if Mrs. Carroll were reasonably unaware of the cause of her husband's medical problems before April 6, 1986, her survival claim would still have accrued at the time at which Mr. Carroll first had notice. In fact, under the discovery rule, even if Mr. Carroll was personally unaware until after April 6, 1986, his personal injury claim--and thus, his wife's derivative claim--would still have accrued at the point at which someone with due diligence would have been led to uncover the truth. See Kerrigan v. O'Meara, 71 Mont. 1, 8, 227 P. 819, 822 (1924).

Although Mr. Carroll's earliest medical reports did not indicate asbestosis exclusively, they did put him on inquiry notice about the cause of his lung disease. As early as 1972, Mr. Carroll's physicians reported symptoms consistent with asbestos exposure. Fibrosis and pneumoconiosis appeared regularly in his medical records beginning in 1972. (Excerpt E, pp. 24, 26, 27, 36, 41, 42, 43). Asbestosis is not the only possible cause of these symptoms, see Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 421 N.E.2d 864 (1981), but continued reports that these conditions were advancing should have led Mr. Carroll to consider that the cause might be asbestos exposure. At the very least, Mr. Carroll should have asked his doctors about possible causes for these symptoms. His alleged failure to do so cannot prevent his claim from accruing because "allow [ing] a plaintiff who fails to inquire into the cause of injury [ ] to avoid the time bar ... would hopelessly demolish the protection afforded defendants by the statute" of limitations. Much v. Sturm, Ruger & Co., 502 F. Supp. 743, 745-46 (D. Mont. 1980), aff'd mem., 685 F.2d 444 (9th Cir. 1982). Mr. Carroll cannot escape the statute of limitations bar simply because he failed to ask about potential causes of his lung disease.

At a minimum, Mr. Carroll should have known that his continued lung problems were likely due to asbestos exposure by 1985. In 1980, records from an emergency room visit list asbestosis as the sole reason for the visit. (Excerpt E, p. 31). In 1984, remarks on a medical form written in quotations indicate that Mr. Carroll himself may have reported that the shortness of breath he was experiencing was due to asbestos exposure. (Excerpt E, p. 32). Finally, in 1985, information conveyed in a letter from Grace informed Carroll that he had " 'restrictive' lung changes that are consistent with previous dust exposure" and that " [a]ll four radiologists who reviewed [his] x [-]ray f [ou]nd evidence of dust related changes." (Excerpt E, p. 34).

Cases relied upon by Mrs. Carroll to support her claim that her husband could not have known through due diligence of his asbestos-related disease are distinguishable. In those cases, there was no significant medical evidence available to link the injured parties' physical symptoms to their exposure to toxic substances. See Hando v. PPG Indus., Inc., 236 Mont. 493, 771 P.2d 956 (1989) (plaintiff diligently sought cause of symptoms but suspicion was not confirmed until medical diagnosis linked symptoms to defendant's actions); Herber v. Johns-Manville Corp., 785 F.2d 79 (3d Cir. 1986) (cause of action did not accrue because no medical evidence that plaintiff suffered from asbestos-related injury); Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 527 A.2d 66 (1987) (plaintiff had no medical basis to conclude that illness was asbestos-related where doctors had previously concluded that illness was caused by job stress). Conversely, Mr. Carroll's eighteen-year work history at Grace, annual company-sponsored chest x-rays from 1964 to 1976, and numerous references in medical reports to symptoms consistent with asbestosis all served to place Mr. Carroll on notice that his lung disease may have been asbestos-related.

In short, the district court did not err in applying Montana's discovery rule to conclude that Mr. Carroll's personal injury claim had accrued more than three years before his wife filed her survival claim.

IV

Turning to Mrs. Carroll's wrongful death claim, the district court first noted that " [t]here are no Montana cases which determine when a wrongful death action accrues. Neither are there any definitive statutes on this issue." Carroll v. W.R. Grace & Co., No. 89-89 at 4 (D. Mont. May 21, 1990). Nonetheless, the court concluded that " [i]t seems inequitable to permit an heir to revive a claim any time up to three years after [a] decedent's death when the decedent [himself] was barred from bringing the claim by expiration of the statute." Id. at 5-6. The court therefore dismissed Mrs. Carroll's wrongful death claim for the same reason that it dismissed her survival claim: both, it held, were time-barred by an identical application of the same rule.

We are not persuaded that this reasoning is correct. As the court itself noted, Montana law has not definitively answered this question, and the "probable" answer is not clear. See Commercial Union Ins. Co. v. Ford Motor Co., 640 F.2d 210, 212 (9th Cir.) (when federal court sitting in diversity confronts state-law question not yet decided by state's highest court, it must "seek the rule [it] believe [s] that Court would adhere to were it confronted with a similar situation"), cert. denied, 454 U.S. 858 (1981).

* First, there are several reasons to believe that survival claims and wrongful death claims do not merit identical treatment under Montana's statute of limitations. Foremost among these reasons is the simple definitional fact that one cannot begin to prove "wrongful death" until the injured party has in fact died. That truism alone suggests that such a claim may not accrue until the victim's death.¹  Secondly, survival claims and wrongful death claims are authorized by two discrete provisions of the Montana Code--a fact that suggests their independence as causes of action. Compare Mont.Code Ann. Sec. 27-1-501 (1989) (survival) with Mont.Code Ann. Sec. 27-1-513 (1989) (wrongful death).

Even more to the point, in a case involving the predecessor of the statutory provision at issue here, the Montana Supreme Court has explained that wrongful death is "an independent statutory right of action in designated kin for the damages they themselves sustain by reason of the wrongful death of their relative." Bryant v. Hall, 157 Mont. 28, 32, 482 P.2d 147, 149 (1971) (discussing Rev.Code Mont. Sec. 93-2810 (1947), recodified as amended at Mont.Code Ann. Sec. 27-1-513 (1989)) (emphasis added). Under Bryant, a wrongful death claim is not derivative but independent, and it serves a distinct legal function. The district court's concern in this case with the apparent inequity of "reviving" through a wrongful death claim what is already time-barred as a survival claim therefore may be incorrect. No revival is occurring here. What the district court saw as the revival of a foreclosed claim may be the accrual of an entirely new claim--in a new, and not a substitute, plaintiff.

Moreover, as the Montana Supreme Court has more recently pronounced in Swanson v. Champion International Corp., 197 Mont. 509, 514-19, 646 P.2d 1166, 1169-71 (1982), the damages recoverable in a wrongful death claim are not the same as those recoverable in a survival action. In the former case, damages may "include loss of consortium by a spouse; the loss of comfort and society of the decedent suffered by the surviving heirs; and the reasonable value of the contributions in money that the decedent would reasonably have made for the support, education, training and care of the heirs during the respective life expectancies of the decedent and the survivors." 197 Mont. at 517, 646 P.2d at 1170 (citations omitted). By contrast, in the latter case, the plaintiff may recover the decedent's "lost earnings from the time of his injury to his death; the present value of his reasonable earnings during his life expectancy; the medical and funeral expenses incurred by him as a result of the tort; reasonable compensation for his pain and suffering, and other special damages. 197 Mont. at 515, 646 P.2d at 1169 (citations omitted). This difference also suggests the separate integrity of the two causes of action and lends support to the inference that wrongful death claims accrue at death.

Finally, in Schaffer v. Champion Home Builders Co., 229 Mont. 533, 747 P.2d 872 (1987), a case neither party mentions, the Montana Supreme Court provided further fuel for the inference that wrongful death claims may accrue at death. There, the court held that it was not error to dismiss a wrongful death claim as time-barred when the decedent's injury had been inflicted during 1978 and 1979; his death had occurred on February 27, 1980; and his heirs' complaint had been filed on March 1, 1983. Although the complaint would have been late regardless of whether the action accrued on the date of discovery or the date of the decedent's death, the court implied that the latter date was the appropriate benchmark for a wrongful death claim: in support of its ruling, the court simply noted that " [t]hree years from the date of [the decedent's] death fell on February 27, 1983." 229 Mont. at 535, 747 P.2d at 873 (emphasis added).

B

On the other hand, while interpreting an early predecessor to the current wrongful death statute, the Montana Supreme Court long ago explained that a claim for wrongful death stems from the breach of "a duty owing to the decedent." Melville v. Butte-Balaklava Copper Co., 47 Mont. 1, 12, 130 P. 441, 446 (1913) (interpreting Rev.Code Mont. Sec. 6486 (1907)) (emphasis added), overruled on other grounds, Waller v. Engelke, 227 Mont. 470, 741 P.2d 385 (1987).

"It cannot be that, if the death was caused ... with no omission of duty owing to the decedent, it can be considered wrongful or negligent at the suit of the heirs of the decedent. They claim under him, and they can recover only in case he could have recovered damages had he not been killed, but only injured. The company is not under two different measures of obligation, one to the [decedent] and another to his heirs."

Id. (quoting Northern Pac. Ry. Co. v. Adams, 192 U.S. 440, 450 (1904)). In this passage and elsewhere, the Melville opinion unequivocally suggests that wrongful death claims are derivative and may only lie where the decedent himself would be able to prosecute the claim.

The court's more recent decision in Fisher v. Missoula White Pine Sash Co., 164 Mont. 41, 518 P.2d 795 (1974), also lends some support to the notion that the two types of action accrue simultaneously. There, the court stated that although the claims arise in different parties, "in a wrongful death action as well as a survival action, the liability of the third party tortfeasor is derivative through the injured employee and subject to such rights and defenses as exist between such employee and the third party tortfeasor." 164 Mont. at 48, 518 P.2d at 799 (citing Melville and Northern Pacific Railway) (emphasis in original).

Finally, Montana's survival provision explicitly denies the double recovery of any damages and expressly requires that any claims brought under that provision and the wrongful death provision "be combined in one legal action." Mont.Code Ann. Sec. 27-1-501(2) (1989). This, too, may suggest that wrongful death and survival claims do not have wholly separate integrity and that, at least under some circumstances, a valid defense to one may be a valid defense to the other.

C

In short, we are not sure whether under Montana law a wrongful death action accrues at the death of the decedent or, alternatively, in accordance with the discovery rule. We therefore certify the following questions to the Montana Supreme Court:

QUESTIONS CERTIFIED

1. Does a Montana wrongful death action accrue at the time of the decedent's death?

2. If not, does a Montana wrongful death action accrue in accordance with the discovery rule as a derivative cause of action?

3. If not, when and how does a Montana wrongful death action accrue?

See Mont.R.App.P. 44(a) ("Whenever in an action pending in a United States court it shall appear that there is a controlling question of Montana law as to which there is a substantial ground for difference of opinion," the federal court may certify the question for resolution by the Montana Supreme Court); id. 44(b)-(h) (specifying procedures for certification).

The clerk of this court shall forward a copy of this Memorandum and Order Certifying Question to Montana Supreme Court, under official seal, to the Supreme Court of Montana, along with copies of all briefs and excerpts of record that have been filed with this court. See id. 44(d). The parties shall notify the clerk of this court within fourteen days of any decision by the Montana Supreme Court to accept or to decline certification. See id. 44(a) (court "may refuse to render an answer"). If the Montana Supreme Court accepts certification, the parties shall then notify the clerk of this court within fourteen days of the issuance of that court's opinion. See id. 44(h). Submission of the third question presented in this appeal is deferred pending a definitive response by the Montana Supreme Court.

AFFIRMED IN PART AND CERTIFIED IN PART.