Following the lead of several other federal circuits, the U.S. Court of Appeals for the Ninth Circuit reversed the dismissal of a wrongful death claim under the admiralty jurisdiction after holding that the claim can only accrue on or after the death of the seaman, not before.
Sherri Deem appealed to the Ninth Circuit after the U.S. District Court for the Western District of Washington said her wrongful death claim for her husband’s death had expired under a three-year statute of limitations.
On April 29, however, the appeals panel reversed and remanded the case, holding that a wrongful death claim cannot arise or accrue before death even if the cause of death is anticipated under federal law.
“The rule in the Ninth Circuit is clear that ‘the date on which a claim accrues is determined by federal law,’” Judge Ronald M. Gould wrote for the three-judge panel. “While federal law controls the time of accrual of claims, the law has not been crystal clear as to when a claim for wrongful death accrues. In this opinion for the reasons that follow, we clarify that a wrongful death claim cannot arise or accrue before death even if the cause of death is anticipated.”
Thomas Deem worked as an outside marine machinist at the Puget Sound Naval Shipyard in northeast Washington state for over seven years, from February 1974 to February 1981, according to Gould’s opinion. His work included removing and installing piping insulation, gaskets and other parts that may have contained asbestos in different compartments throughout the ships. He was diagnosed with mesothelioma in February 2015 and died just five months later in July 2015.
In June 2018, Deem’s wife Sherri filed a wrongful death suit in federal district court and sought damages from the entities that manufactured, sold and distributed the asbestos-containing products that Thomas Deem could have been exposed to, according to the opinion.
The U.S. District Court for the Western District of Washington agreed with the suppliers after finding that the statute of limitations was initiated when Thomas learned of his mesothelioma diagnosis in February 2015. It also found that Sherri Deem’s claim was governed by maritime law’s three-year statute of limitations codified in 46 U.S.C. § 30106.
But the appellate panel disagreed, recognizing the U.S. Supreme Court’s distinction between survival statutes permitting personal injury claims of an injured individual after death and wrongful death claims by relatives of family of a decedent after death.
Personal injury statutes in federal law have a statute of limitations that accrues on discovery of the illness or the accident causing the damages, the panel said. However, it said, a wrongful death claim cannot accrue until the death of an injured seaman.
“Stated another way, the plaintiff in a personal injury action or a survival action for the seaman’s estate after his death assumes the legal posture of the seaman,” Gould wrote. “But by contrast, the plaintiff in a wrongful death action is necessarily a family member or relative of the deceased.”
The panel said the district court applied a discovery rule, but it erred with its conclusion that she had to discover only the illness of mesothelioma that had afflicted her deceased husband.
In Sherri Deem’s wrongful death suit, the injury to her was the loss of her husband’s presence as a result of death, and that injury could not have been discovered before he had passed away, according to the panel.
“Federal law supports the proposition that accrual of a wrongful death claim occurs on the date of death, not the date of the seaman’s prior injury, or on a date beyond death when the cause of death is discovered,” Gould wrote. “We join our sister circuits on the Third, Fifth, Sixth and Seventh Circuits in holding that federal law determines when a wrongful death claim accrues, and that a wrongful death claim does not accrue before the time of death.”
Sherri Deem’s attorney, KaLeya Hardin, said her client is pleased with the Ninth Circuit’s decision and it will allow for her to have her day in court.
“The Ninth Circuit agreed that a death is a necessary prerequisite for a wrongful death claim,” Hardin said. “Had the district court’s ruling been permitted to stand, wrongful death claims could have potentially come to an end under maritime law. While it is regrettable that the defendants on appeal declined to take responsibility for their actions, we look forward to Mrs. Deem finally receiving her day in court.”
Attorney Brian J. Schneider represented the appellees, the William Powell Co., John Crane Inc., Crosby Valve LLC and Ingersoll-Rand Co. Schneider, and did not return a request for comment.