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, 1992Justice 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 certificationpursuant to Rule 44 of the M.R.App.P. Appellant (anddefendant),W.R. Grace and Company,claimsthat 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 itsvermiculite 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 seekmedical 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 2his 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 claimwas 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 claimsare creatures of statute inMontana. As such, the question of when awrongful 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 accxueswhen 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 damagesagainst the person causing the death or, if such person be employedby another person who 

### is responsible forhis conduct, then also against such other person. Section 27

-1

-513, MCA. General rules of statutory constructionrequire 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 languageofMontana'sgeneral accrual statute isplain 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 claimhave 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.
4Section 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 accordancewith 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:

6

### January 14,1992 CERTIFICATEOFSERVICE I herebycertifythatthefollowingorderwas sentby United Statesmail,prepaid,to

### the followingnamed: Gary

### L. GrahamandMaureen

### H.

### Lennon GARLINGTON,LOHN&

### ROBINSON P.O. Box7909 Missoula,MT 59807

-7909
ThomasA. Baiz,Jr. BAIZLAWOFFICE P.O. Box 1828 GreatFalls,MT 59403

Tom

### L.Lewis REGNIER,LEWIS&

### BOLAND P.O. Box 2325 GreatFalls,MT 59403

EDSMITH CLERKOFTHESUPREME COURT STATEOFMONTANA 

### BY Deputy