Wisconsin Court Allows Wrongful Death Claims by Third Parties After Statute of Limitations Posted on July 31, 2015 by Larry Bodine The Wisconsin Supreme Court affirmed a lower court decision permitting third parties to file wrongful death and survival claims past the three-year statute of limitation applying the judicially created discovery rule. The discovery rule provides that the statute of limitations begin when the plaintiff discovers or should have discovered the injury, and that the defendant may have caused the injury. The rule permits wrongful death and survival claims after the date of the decedent’s death if the third-party discovers, or in the exercising reasonable diligence should have discovered the injury and the identity of the responsible defendant. The three-year statute of limitations then begins to run upon discovery or when the parties should have reasonably discovered the injury. Benzene exposure caused injury and death Former employees, estates and beneficiaries of former employees of the Eau Claire Tire Manufacturing plant (Eau Claire) sued Eau Clair and Exxon Mobil Corp (Exxon) for injuries and deaths from their exposure to benzene in the work place. Exxon attempted to dismiss the lawsuit asserting that the plaintiffs filed claims after the three-year statute of limitations expired because their claims could not have accrued after the deaths of the decedents, some of whom died more than three years before the filing of the lawsuit. Exxon contended that the discovery rule in wrongful death and survival claims did not extend to parties other than the decedents. The court sided with the plaintiffs who reasoned that their claims did not accrue until they had reason to believe that Eau Clair and Exxon were responsible for the injuries, even if after the dates of the decedent’s death. The court explained that following the discovery rule, a cause of action accrues when there is a claim capable of enforcement, a party responsible, and a party with the right to enforce the claim. A tort claim may accrue when negligence occur causing an injury, or when the injury is discovered. The court stated that they adopted the discovery rule for public policy purposes to protect plaintiffs who are unaware of injuries when they happen and discover them after the statute of limitations has run out. Exxon relied on overruled case law Exxon and Eau Clair attempted to use a case from 1935 to support their claim that a wrongful death claim accrues at death. The court found the defendants reliance on the law “unavailing” and found that “for all practical purposes” the case was overruled by other case law and “expressly overruled here.” The court considered the potential effects of their ruling on other defendants. It reassured that plaintiffs will not receive an advantage in trot cases because they must still make a showing that the delay in their discovery of the claim was reasonable, and they continue to have the burden of proving its case, stating the “burden is not relaxed in older cases kept alive by the discovery rule.” Defendant’s Constitutional claim The court outright dismissed Exxon’s claim that the appeals court decision violated their constitutional rights upon their belief that the court of appeals was incorrect in its decision against them. The court stated that Exxon’s “argument on this point does not seem to be fully developed” so it was only addressed briefly, ruling that Exxon’s constitutional rights were not violated. The court affirmed that the discovery rule permits plaintiffs to pursue survival claims and wrongful death claims, even after the decedent’s death so long as there is a “claim capable of present enforcement.” The court remanded the case to the circuit court to determine whether the plaintiffs have satisfied the statute of limitations under the discovery rule. The case is Christ v. Exxon Mobil, Case number 2012AP1493 in the Supreme Court of Wisconsin
