NO. 91-283 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1992 

EDITH ISABELLA CARROLL, Wife 

of CHARLES ELMER CARROLL, Deceased, 

and Personal Representative 

of the Estate of Charles Elmer Carroll, 

Plaintiff and Respondent, 

-VSW. R. GRACE & COMPANY, 

Defendant and Appellant. 

ORIGINAL PROCEEDING 

COUNSEL OF RECORD: 

For Respondent: 

Tom L. Lewis; Regnier, Lewis & Boland, Great Falls, 

Montana 

Thomas A. Baiz, Jr., Baiz Law Office, Great Falls, 

Montana. 

For Appellant: 

Gary L. Graham and Maureen H. Lennon; Garlington, 

Lohn & Robinson, Missoula, Montana. 

Filed: 

Submitted: December 2, 1991 

Decided: January 14, 1992 
Justice Karla M. Gray delivered the Opinion of the Court. 

This case is before us on certified questions from the Ninth 

Circuit Court of Appeals concerning the point at which a Montana 

wrongful death action accrues. We accepted certification pursuant 

to Rule 44 of the M.R.App.P. 

Appellant (and defendant), W.R. Grace and Company, claims that 

the action accrues at the date of injury. Respondent (and 

plaintiff), Edith Carroll, claims that a wrongful death action 

accrues at the death of the injured person. We conclude that a 

wrongful death action does not accrue until the death of the 

injured person. 

Charles Carroll (decedent) was employed by W.R. Grace and 

Company (Grace) at its vermiculite mine located in Libby, Montana, 

from 1958 until 1976; he underwent yearly chest x-rays provided by 

Grace from 1967 until 1976. Decedent retired in 1976, but 

continued to seek medical help regarding shortness of breath and a 

heart condition. 

Mr. Carroll died in 1989, thirteen years after retirement. 

His autopsy report listed the cause of death as "severe 

interstitial fibrosis with pulmonary failure, apparently due to 

'asbestosis.'" Decedent's medical records show that he had been 

diagnosed as suffering from asbestosis as early as 1972. 

Edith Carroll, wife of decedent, filed a survival claim and a 

wrongful death claim against Grace, her husband's former employer, 

asserting that her husband's asbestosis was related to his 

employment at Grace's mine. She contends that she did not know 

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his death was related to his employment until she read the autopsy 

report. She filed her suit as a diversity action in the United 

States District Court within two months of her husband's death. 

Grace moved for summary judgment based on the running of the 

statutes of limitations for both survival and wrongful death 

claims. The U.S. District Court granted summary judgment, holding 

that the statute of limitations had run on both claims. Edith 

Carroll appealed to the United States Court of Appeals for the 

Ninth Circuit. The Ninth Circuit affirmed the District Court's 

holding that the survival claim was barred by the applicable threeyear statute of limitations, but stated that Montana law was not 

definitive on the issue of when a wrongful death action 

accrues. This Court accepted jurisdiction of the certified 

questions by order dated June 11, 1991. 

Wrongful death claims are creatures of statute in Montana. As 

such, the question of when a wrongful death claim accrues requires 

an analysis of the general accrual statute and the wrongful death 

statute itself. 

The general accrual statute for all actions in Montana 

provides : 

[A] claim or cause of action accxues when all elements of 

the claim or cause exist or have occurred, the right to 

maintain an action on the claim or cause is complete, and 

a court or other agency is authorized to accept 

jurisdiction of the action; 

Section 27-2-102(1)(a), MCA. The wrongful death statute reads: 

Action for wrongful death. When injuries to and the 

death of one person are caused by the wrongful act or 

neglect of another, the personal representative of the 

decedent's estate may maintain an action for damages 
against the person causing the death or, if such person 

be employed by another person who is responsible for his 

conduct, then also against such other person. 

Section 27-1-513, MCA. 

General rules of statutory construction require this Court to 

interpret the statutory language before us, without adding to, or 

subtracting from, it. Section 1-2-101, MCA. Words and phrases 

used in statutes of Montana are construed according to the context 

and the approved usage of the language. Section 1-2-106, MCA. 

Therefore, when interpreting statutes, this Court will use the 

plain and ordinary meaning of a word. Mtn. View Ed. Assn. v. Mtn. 

View School (1987), 227 Mont. 288, 738 P.2d 1288. 

The language of Montana's general accrual statute is plain and 

straightforward: "all elements" of a claim must exist before the 

claim can accrue. Section 27-2-102(1) (a), MCA. The meaning is 

equally clear and not susceptible to differing interpretations: 

only when all elements exist is a claim complete. Section 27-2- 

102(1)(a), MCA, applies, by its terms, to all claims and causes of 

action. Thus, a wrongful death claim, like any other cause of 

action, accrues only when all elements of the claim have occurred: 

the claim simply does not exist until that time. The question, 

then, is whether death is an element of a wrongful death claim. 

The wrongful death statute references I!. . . injuries to 

the death of one person. . . .I' Section 27-1-513, MCA. (Emphasis 

added.) When these occurrences are caused by the "wrongful act or 

neglect of another," a wrongful death action may be maintained 

against the person who caused the death of the injured person. 

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Section 27-1-513, MCA. It is clear from the legislature's use of 

the conjunctive "and" that the death of the injured person is an 

element of a wrongful death claim. 

The wrongful death statute contains additional language 

mandating the conclusion that death is an element of the claim. 

"[Tlhe personal representative of the decedent's estate . . . 'I 

files a wrongful death action. Section 27-1-513, MCA. A 

"decedent" is indisputably a person who has died and a personal 

representative of an estate cannot be appointed until there is a 

decedent. Thus, the death itself is a critical element in a 

wrongful death action. 

To summarize, no claim exists until all elements of a cause of 

action occur pursuant to 5 27-2-102(1) (a), MCA, and death is an 

element of a wrongful death claim under 5 27-1-513, MCA, Montana's 

wrongful death statute. Therefore, we hold that a wrongful death 

action in Montana accrues at the time of decedent's death. 

Eased upon the above discussion, we answer the certified 

questions as follows: 

1. Does a Montana wrongful death action accrue at the time 

of decedent's death? Yes. 

2. If not, does a Montana wrongful death action accrue in 

accordance with the discovery rule as a derivative cause of action? 

Having answered Question #1 in the affirmative, we do not reach 

Question #2. 

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

accrue? Having answered Question #1 in the affirmative, we do not 

reach Question #3. 
We concur: 

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January 14, 1992 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the 

following named: 

Gary L. Graham and Maureen H. Lennon 

GARLINGTON, LOHN & ROBINSON 

P.O. Box 7909 

Missoula, MT 59807-7909 

Thomas A. Baiz, Jr. 

BAIZ LAW OFFICE 

P.O. Box 1828 

Great Falls, MT 59403 

Tom L. Lewis 

REGNIER, LEWIS & BOLAND 

P.O. Box 2325 

Great Falls, MT 59403 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA 

BY 

Deputy