Mary R. Russell, Judge.
The issue on appeal here is whether the trial courts erred in entering judgments on the pleadings in five wrongful death lawsuits on the basis that the causes of action were time-barred by the three-year limitation
The circumstances of these cases are tragic and deeply concerning. This appeal arises from five separate but essentially identical wrongful death claims brought by Sally Boland, Sherri Lynn Harper, David C. Gann, Jennirae Littrell, and Helen Pittman (the plaintiffs) against Community Health Group, Saint Luke's Health Systems, Inc., and Saint Luke's Hospital of Chillicothe (collectively, "the hospital"). The cases are now consolidated before this Court. Because the trial courts entered judgment on the pleadings in favor of the hospital, the following allegations of the plaintiffs are treated as admitted for purposes of this appeal. See Emerson Elec. Co. v. Marsh & McLennan Cos., 362 S.W.3d 7, 12 (Mo. banc 2012).
The plaintiffs all had family members die while being treated at Hedrick Medical Center in Chillicothe in 2002. Sally Boland's father died February 3, 2002. Sherri Lynn Harper's husband died March 22, 2002. David C. Gann's father died March 30, 2002. Jennirae Littrell's father died April 15, 2002. Helen Pittman's sister died March 9, 2002.
The petitions allege that Jennifer Hall, a former employee of the hospital, was responsible for the deaths. Specifically, the allegations are that over a period of time, Hall, a respiratory specialist, intentionally administered a lethal dose of succinylcholine, insulin, and/or other medication that resulted in the death of each of the decedents.
Further, the petitions allege that the hospital was aware of Hall's actions and acted affirmatively to conceal the suspicious nature of the deaths by: (1) threatening and coercing its employees to conceal information concerning Hall's actions; (2) failing to request autopsies so as to conceal the causes of death when there were several suspicious deaths; (3) informing or instructing its employees to notify patients' families that the causes of death were "natural" rather than due to Hall's actions; (4) disbanding committees put into place to evaluate codes and determine preventative measures; (5) failing to inform appropriate individuals and medical committees that had authority to act about Hall's behavior so that future harm by Hall could be prevented; (6) failing to
Dr. Cal Greenlaw was a physician working at the hospital during the relevant period. In February 2002, Dr. Greenlaw treated a patient in the emergency room who suddenly "coded" due to a cardiovascular collapse. He could not account for the patient's unusual blood sugar/insulin events. He had previously become aware of two suspicious codes and resulting deaths prior to this incident and subsequently came to suspect that someone had been attempting to kill patients by injecting them with insulin or some other drug.
Dr. Greenlaw voiced these concerns to the hospital administration but was told by the hospital's director of nurses that there was no problem and not to discuss his suspicions further. Later, he told the hospital's administrator that he suspected Hall was intentionally killing patients at the hospital but was again told to abandon the matter for fear that the hospital's admissions would be jeopardized. However, he continued to gather evidence and, ultimately, became aware of 18 "code blues" and nine suspicious deaths at the hospital from February to May 2002 that occurred while Hall was on duty.
Aleta Boyd was a registered nurse and longtime employee of the hospital during the relevant period. She worked as the hospital's risk manager for internal events. In March 2002, she became aware of a dramatic increase in code blue events and deaths. She ultimately came to suspect that patients were intentionally being injected with insulin and/or other drugs and began an internal investigation. She concluded that Hall was the cause of the events and communicated the findings to the director of nursing and to the hospital's administrator. Boyd, however, was instructed to keep the matter confidential and not to involve anyone else. She continued to receive reports of code blue events and deaths, ultimately becoming aware of approximately 15 patients who either coded or died under suspicious circumstances in which Hall was listed in the patient's record. Boyd and other nurses finally met with the hospital administration and communicated a desire to alert the media if the hospital failed to stop Hall.
Hall was suspended and later fired in May 2002 after another patient died under suspicious circumstances. After Hall's suspension, a bottle of insulin was found in her locker, despite there being no reason for her to have insulin or to administer medication to patients. The suspicious codes and deaths apparently ceased once Hall was fired.
The Joint Commission on Accreditation of Healthcare Organizations ultimately investigated the events at the hospital and identified a number of "sentinel" events occurring during 2002. A sentinel event is defined as "an unexpected occurrence involving death or serious physical or psychological injury, or the risk thereof." A health care provider is required to report such events to patients and their families. The plaintiffs, however, allege they were not notified of the circumstances surrounding the deaths of their family members
The plaintiffs filed petitions against the hospital arguing they were entitled to damages under Missouri's wrongful death statute, section 537.080. The hospital filed motions for judgments on the pleadings, arguing that the claims were time-barred by section 537.100, the three-year wrongful death statute of limitation. The trial courts granted the hospital's motions. The plaintiffs appeal.
When reviewing the trial court's grant of a motion for judgment on the pleadings, this Court must determine "whether the moving party is entitled to judgment as a matter of law on the face of the pleadings." Emerson Elec. Co., 362 S.W.3d at 12. The judgments will be affirmed if the facts pleaded by the plaintiffs, considered by the court as admitted, demonstrate that they could not prevail under any legal theory. Id.
Wrongful death in Missouri is statutory and has no common law antecedent. Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012). Section 537.080 provides, in relevant part:
A limitation period within which all wrongful death claims must be brought is found in section 537.100. It provides that "[e]very action instituted under section 537.080 shall be commenced within three years after the cause of action shall accrue." Section 537.100 contains two exceptions to the statute of limitation: a tolling provision for defendants who abscond from the state to avoid personal service and a one-year savings provision if This Court granted transfer after opinion by the court of appeals. Mo. Const. art. V, sec. 10. the plaintiff files a voluntary non-suit or the plaintiff's judgment is reversed and remanded on appeal. There are no other exceptions in the language of section 537.100.
By contrast, in chapter 516, the general statutes of limitation chapter, there is an exception for fraudulent concealment. Section 516.280 provides that, "[i]f any person, by absconding or concealing himself, or by any other improper act, prevent[s] the commencement of an action, such action may be commenced within the time herein limited, after the commencement of such action shall have ceased to be so prevented." Section 516.300, however, provides that: "[t]he provisions of sections 516.010 to 516.370 shall not extend to any action which is or shall be otherwise limited by any statute; but such action shall be brought within the time limited by such statute." In short, section 516.300 states that the general statutes of limitation and exceptions found in chapter 516 are not applicable to causes of action that contain their own special statutes of limitation. Section 537.100 is a special statute of limitation for wrongful death. As a result, the fraudulent concealment tolling exception in section 516.280 is not applicable to this case.
All parties agree that neither of section 537.100's two exceptions apply to this case. Instead, the plaintiffs argue that the trial courts erred in granting the hospital's motions for judgment on the pleadings because, due to the hospital's fraudulent concealment, their wrongful death claims did not accrue until they learned of the wrongfulness of the hospital's conduct and were not time-barred by section 537.100. Alternatively, they contend that the statute of limitation was equitably tolled by the hospital's concealment, that the statute of limitation did not run, or that equitable estoppel precludes the hospital from relying on the statute of limitation as a defense. In other words, the plaintiffs argue either for delayed accrual under section 537.100 or for a de facto exception to the limitation period for fraudulent concealment. The hospital counters that delayed accrual for wrongful death is not recognized in Missouri and that courts may not judicially graft a tolling mechanism onto a special statute of limitation that is not specifically provided for by the legislature.
At the center of both of the plaintiffs' arguments is this Court's decision in Frazee v. Partney, 314 S.W.2d 915 (Mo. 1958). In Frazee, a family was involved in a car accident caused by a driver who fell asleep at the wheel. Id. at 917. Two people were killed, but the driver was unaware an accident had occurred because he did not see where the family's car went off the road. Id. The driver considered whether to go back and investigate but elected to proceed ahead to his destination. Id. The accident occurred in 1954, but the plaintiffs did not learn the driver's identity until March 1956. Id. They filed a wrongful death suit against the driver in September of 1956. Id. at 916. The defendant pleaded section 537.100, which at that time provided a one-year limitation period for wrongful death claims. Id. This Court considered two questions: (1) when a wrongful death cause of action accrues, and (2) whether the defendant's allegedly fraudulent concealment of his identity tolled or extended the limitation period in section 537.100. Id. at 917.
With respect to delayed accrual, this Court addressed whether a wrongful death claim accrues at death or at the point when the suit "could be validly commenced and maintained against an `actual' defendant," i.e., when the identity of the defendant became known. Id. at 917. Frazee distinguished between the existence of a defendant and the identity of the defendant and noted that the language of section 537.100 specifically provided that the limitation period began at the accrual of the cause of action — when the plaintiff's injury was complete and not at the point when a lawsuit could be effectively commenced. Id. at 920-21. Frazee held that, despite the harshness of the outcome, the wrongful death claim accrued at the moment of death, even though the plaintiff argued the identity of the defendant had been fraudulently concealed. Id. at 921.
In addressing the driver's identity, Frazee rejected the argument that such concealment, even if fraudulent, tolled or extended the limitation period and held that section 537.100 "must carry its own exceptions":
Id. at 919. In reaching this conclusion, the Court noted that it was bound to consider only the plain language of section 537.100 and the legislative intent that language evidenced. Id. at 921. Frazee further found it significant that the legislature had twice amended section 537.100 since its adoption and added two exceptions yet never saw fit to craft a fraudulent concealment exception like the one codified at section 516.280. Id. at 920. "We are forced to construe the cold, clear words of the statute, and if its scope is to be enlarged we feel that the remedy is legislative, not judicial." Id. at 921.
The plaintiffs question the validity of Frazee in light of two subsequent decisions. First, in O'Grady v. Brown, 654 S.W.2d 904, 906-07 (Mo. banc 1983), this Court considered whether a fetus qualified as a "person" under the wrongful death statute. O'Grady held that the wrongful death statute was not in derogation of the common law and should be construed "with a view to promoting the apparent object of the legislative enactment." Id. at 908. In holding that the fetus was a "person" for purposes of wrongful death, this Court noted three basic objectives underlying the wrongful death statute: (1) to compensate bereaved plaintiffs for their loss, (2) to ensure that tortfeasors pay for the consequences of their actions, and (3) to deter future harmful conduct that might lead to death. Id. at 909.
Second, the plaintiffs cite Howell v. Murphy, 844 S.W.2d 42 (Mo. App. 1992), which relied on O'Grady. The plaintiffs argue that Howell abrogated Frazee. In Howell, the plaintiffs filed wrongful death claims against a man who murdered their loved ones and concealed the evidence for more than five years. Id. at 45. The plaintiffs could not file their claims within three years because the victims had not been found and, by statute, were presumed missing and not dead until five years had passed. Id. at 47. The court favorably cited O'Grady as a "major shift" in the interpretation of wrongful death, holding that the statute of limitation "should not be so strictly construed as to avoid the wrongful death statute's purposes." Howell, 844 S.W.2d at 46. It held that, due to the defendant's concealment of the bodies and the statutory presumption of life, section 537.100 was tolled "until the plaintiffs could, by reasonable diligence, ascertain they had an action." Id. at 47. In its discussion, Howell also stated that "the reasoning of Frazee is superseded by O'Grady." Id. at 46.
Howell is in error. Frazee was never referenced or cited by this Court in O'Grady. Absent a contrary showing, an opinion of this Court is presumed not to be overruled sub silentio. State v. Wade, 421 S.W.3d 429, 433 (Mo. banc 2013). Additionally, Frazee and O'Grady are dissimilar because the statute of limitation was not at issue in O'Grady. As a result, Frazee remains good law. To the extent that Howell stated that Frazee is superseded by O'Grady, it should no longer be followed.
To determine whether a statute of limitation bars recovery, it is necessary to establish when the cause of action accrued. Jepson v. Stubbs, 555 S.W.2d 307, 311 (Mo. banc 1977). A cause of action accrues, and the limitation period begins to run, when the right to sue arises. Hunter v. Hunter, 361 Mo. 799, 237 S.W.2d 100, 103 (1951). Frazee held that a wrongful death claim accrues at death. This has long been the rule in Missouri. See Coover v. Moore, 31 Mo. 574, 576 (Mo.1862); Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 929 (1933); Nelms v. Bright, 299 S.W.2d 483, 487 (Mo. banc 1957). That rule is now reaffirmed. The language of section 537.100 is unambiguous, and this Court's precedent is clear: the plaintiffs' claims accrued at the decedents' deaths, and section 537.100 does not provide for delayed accrual under these circumstances.
As the plaintiffs' claims accrued at death, the claims are time-barred unless an exception or tolling mechanism applies. The plaintiffs argue that due to the hospital's fraudulent concealment, the statute of limitation was equitably tolled, did not run, or that equitable estoppel prevents the hospital from relying on the statute of limitation as a defense. Though these are distinct legal concepts, under these circumstances they amount to an argument for a de facto exception to section 537.100 for fraudulent concealment.
Faced with statutory language that does not provide the fraudulent concealment exception they seek, the plaintiffs contend that this Court should construe the limitation period for wrongful death found in section 537.100 to avoid frustrating the remedial purpose behind wrongful death. They argue that section 537.100 can be interpreted "with reference to its spirit and reason so that, even if a case falls within the letter of the statute, courts are not bound thereby if the case is not within the spirit and reason of the law and the plain intention of the legislature." Essentially, they argue that the wrongful death statutory scheme's purposes can be used to override or amend its statutory language. They believe Frazee was wrongly decided, particularly in light of law in other jurisdictions.
This Court is presented with an extremely difficult decision. What occurred here is undoubtedly a tragedy, and the plaintiffs put forth what amounts to a compelling policy argument for why their suits should be allowed to proceed. This proposed "freewheeling" approach to statutory interpretation, however, is also troubling, particularly when the precedent of this Court counsels a different result.
As noted above, Frazee remains good law and is directly on point in this case. It unambiguously held that "[a] special statute of limitation must carry its own exceptions and we may not engraft others upon it." 314 S.W.2d at 919. Despite the difficult result for the plaintiff, Frazee held that "[t]he legislature has not seen fit to enact for death actions either a tolling provision or a delayed accrual on account of fraud, concealment, or other improper act" and that it was "not the duty or the right" of the courts to add exceptions not provided for by statute. Id. at 919, 921. The principles of legislative deference as well as stare decisis must be respected.
Moreover, this is not the first time this Court has declined appealing policy arguments when applying statutes of limitation. In Laughlin v. Forgrave, 432 S.W.2d 308 (Mo. banc 1968), this Court, in construing section 516.140, RSMo 1959, held that a plaintiff's medical malpractice action was barred by the statute of limitation despite the claim that the injury — a foreign object left in the plaintiff's back following a surgery in 1951 — could not have been discovered within the limitation period. This is because the statute of limitation did not contain a discovery provision. Id. at 313. In rejecting the plaintiff's argument for the discovery rule, this Court stated that:
Laughlin, 432 S.W.2d at 314. Addressing the result of Laughlin, the General Assembly in 1976 repealed section 516.140 and enacted section 516.105, a new special statute of limitation for medical malpractice actions with a specific provision that, for foreign objects left inside the body, the limitation period began to run from the date of discovery. 1976 Mo. Laws 767 (codified as amended at section 516.105, RSMo 2000).
Similarly, in Weiss v. Rojanasathit, 975 S.W.2d 113 (Mo. banc 1998), this Court again addressed the statute of limitation for a medical malpractice action under section 516.105, RSMo 1994. In Weiss, the plaintiff received a routine gynecological examination and was told she would be notified of any abnormal results. Id. at 116. The plaintiff was not notified that the test indicated a cancerous or precancerous condition. Id. During another examination nearly four years later, she discovered she had Stage IIb endocervix cancer. Id. She brought a medical malpractice action based on failure to notify, arguing that because her injury was not capable of being discovered until the subsequent examination, her claim was not barred by the two-year limitation period of section 516.105, RSMo 1994. Id. at 117.
Weiss rejected the various proffered discovery theories and held that the discovery exception added after Laughlin was limited to cases concerning foreign objects. Id.
Frazee, Laughlin, and Weiss do not seek to incentivize fraudulent acts. Rather, they stand for the principle that it is this Court's role to interpret the law, not rewrite it. Accordingly, the plaintiffs' argument here is one better made to the General Assembly, which is in the best position to determine policy on exceptions to statutes of limitation. See Hunter, 237 S.W.2d at 104 (exceptions to statutes of limitation are matters of public policy for the General Assembly; exceptions are to be strictly construed and not enlarged by courts upon considerations of hardship).
It is further noted that, although the result the plaintiffs argue for is appealing, the method of using a common law equitable maxim to work around the dictates of section 537.100 is inherently problematic. Equity should not be deployed in a manner that countermands the clear intent and language of the legislature, particularly in regard to a statutorily created cause of action. This Court has previously held that:
Milgram v. Jiffy Equip. Co., 362 Mo. 1194, 247 S.W.2d 668, 676-77 (1952) (emphasis added) (internal citations omitted). Implicit in the plaintiffs' argument is that all equitable maxims become a part of all statutory schemes unless expressly written out of the law by the legislature. This merely invites the future reexamination by courts of otherwise settled areas of statutory interpretation, and this Court declines to so hold.
The plaintiffs argue that the legislature could not have intended for the wrongful death statutory scheme to operate in this manner and that the primary rule of interpretation is to give effect to the legislature's intent as reflected in the plain language of the statute. See Fred Weber, Inc. v. Dir. of Revenue, 452 S.W.3d 628, 630 (Mo. banc 2015). Though it is rendered somewhat tertiary in light of the
Prior to the result in Frazee, the General Assembly twice amended section 537.100 to add exceptions. In 1905, a one-year savings provision to allow a new suit following dismissal without prejudice was added. 1905 Mo. Laws 137 (codified at section 2868, RSMo 1906). In 1909, a tolling provision for defendants who abscond from the state to avoid personal service was added. 1909 Mo. Laws 463 (codified at section 5429, RSMo 1909). In enacting these two exceptions to the limitation period, the General Assembly declined to adopt an exception for fraudulent concealment. Yet it appears the legislature was well aware of how to provide for a fraudulent concealment exception to a statute of limitation as such an exception, currently codified at section 516.280, has existed in Missouri for over 150 years. See Limitation: art. 8, sec. 3, RSMo 1836. The legislature could have added a fraudulent concealment exception to section 537.100, but it did not.
Even after Frazee, the General Assembly twice more amended section 537.100 but has never seen fit to craft a fraudulent concealment exception. Instead, it chose to alleviate the result in Frazee by enlarging the limitation period — first from one year to two years in 1967, then to three years in 1979. 1967 Mo. Laws 665; 1979 Mo. Laws 631. The Court respects these legislative choices and "presume[s] that the legislature acted with a full awareness and complete knowledge of the present state of the law." State v. Rumble, 680 S.W.2d 939, 942 (Mo. banc 1984).
Without commenting on whether the plaintiffs have other viable remedies at law, the conclusion that the plaintiffs are without a remedy for wrongful death is a difficult one. But as it was written over a century ago, "[h]ard cases ... are apt to introduce bad law." Winterbottom v. Wright, (1842) 152 Eng. Rep. 402 (Exch.). In that regard, this Court echoes the sentiment of Laughlin in recognizing that, though the outcome is distasteful, "the legislative branch of the government has determined the policy of the state and clearly fixed the time when the limitation period begins to run.... Our function is to interpret the law; it is not to disregard the law as written by the General Assembly." 432 S.W.2d at 314. The judgments of the trial courts are affirmed.
Breckenridge C.J., Fischer, and Wilson, JJ., concur;
Draper, J., concurs in part and dissents in part in separate opinion filed;
Stith and Teitelman, JJ., concur in opinion of Draper, J.
GEORGE W. DRAPER III, JUDGE, concurring in part and dissenting in part
I concur with the principal opinion's holding that Frazee v. Partney, 314 S.W.2d 915 (Mo.1958), remains valid precedent despite the assertion to the contrary in Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992). I further agree that a wrongful death cause of action accrues at the decedent's death, and section 537.100, RSMo 2000,
However, I believe the holding in State ex rel. Bob T. Beisly III v. The Hon.
Because the hospital's fraudulent concealment is the linchpin of the plaintiffs' equitable estoppel claim, I believe additional facts omitted from the principal opinion are essential to illuminate exactly how tragic and deeply concerning the hospital's actions were in this case. Aleta Boyd (hereinafter, "Boyd") attempted to voice her suspicions about Jennifer Hall's (hereinafter, "Hall") involvement in the decedents' deaths to the hospital on numerous occasions. Boyd reported her findings to the director of nursing, who instructed Boyd not to speak to the other nurses or involve anyone else in the matter and to keep the issue confidential. The hospital's administrator told Boyd that her concerns were unfounded, which left Boyd with the "distinct impression ... that if [she] got very aggressive in [the] investigation of this matter that [she] would no longer be employed" by the hospital. Despite receiving additional troubling reports and there being additional suspicious codes, Boyd was instructed repeatedly to not inform anyone, including other nurses, staff or patients, about her suspicions regarding Hall.
After several months of suspicious codes and deaths, Boyd and other nurses met with the hospital's administration and presented the records of fifteen patients who coded or died suspiciously. Hall was listed in every patient's record. The nurses indicated they wanted to report the incidents to the local media if the hospital's administration took no action. The hospital's administration was concerned about negative media coverage and being sued by Hall if the allegations were baseless.
Dr. Cal Greenlaw (hereinafter, "Dr. Greenlaw") investigated the suspicious codes and deaths that he observed while working at the hospital. Dr. Greenlaw met with nurses, contacted the county coroner and prosecuting attorney, and spoke with the hospital's administration about his concerns. Dr. Greenlaw was told at a staff meeting that the hospital did not have a problem and "if anyone breathes a word of this, you'll be fired." Dr. Greenlaw was told his suspicions could not be revealed because it would impact the hospital's admissions.
Ultimately, Hall was terminated, and the suspicious codes and deaths ceased. The plaintiffs' medical expert opined the hospital
The principal opinion reaffirms the holding in Frazee, which construed the wrongful death statute of limitations. Yet the principal opinion disregards the importance of this Court's holding in O'Grady v. Brown, 654 S.W.2d 904 (Mo. banc 1983). In O'Grady, this Court explained that the wrongful death statute is not in derogation of the common law, and it does not take away any common law right. O'Grady, 654 S.W.2d at 908. Rather, the wrongful death act was "designed to mend the fabric of the common law, not to weaken it." Id. This Court rejected the argument that the wrongful death statute had to be construed strictly and, instead, applied the statute's language "with a view to promoting the apparent object of the legislative enactment." Id. at 907-08 (quoting United Air Lines, Inc. v. State Tax Comm'n, 377 S.W.2d 444, 451 (Mo. banc 1964)). This Court recognized its duty "to perceive the import of major legislative innovations and to interweave the new legislative policies with the inherited body of common law principles." Id. at 908 (quoting Moragne v. States Marine Lines, Inc., 398 U.S. 375, 392, 90 S.Ct. 1772, 1783, 26 L.Ed.2d 339 (1970)).
This Court set forth three basic objectives the wrongful death statute was enacted to achieve: (1) "to provide compensation to bereaved plaintiffs for their loss;" (2) "to ensure that tortfeasors pay for the consequences of their actions;" and (3) "to deter harmful conduct which might lead to death." Id. at 909. The Court stated, "[T]he wrongful death statute evidences a legislative intent to place the cost of `unsafe' activities upon the actors who engage in them, and thereby provide a deterrent to tortious conduct." Id. at 908. Applying these real, not purely speculative, objectives, this Court held section 537.080 provided a cause of action for the wrongful death of a viable fetus. Id. at 911.
On the one hand, the principal opinion acknowledges Howell's observation that this Court "announced a major shift in its interpretation of Missouri's wrongful death statute" in O'Grady. Howell, 844 S.W.2d at 46. Yet, despite paying lip service to stare decisis, the principal opinion dismisses this binding statutory interpretation by merely stating that because O'Grady did not address the wrongful death statute of limitations, this limited its applicability here. I strongly disagree.
The thrust of the principal opinion's holding is that this Court has a duty to conduct statutory interpretation, not statutory revision. The principal opinion then flies directly in the face of binding precedent. This precedent instructs how a court should construe the wrongful death act, specifically "to perceive the import of major legislative innovations and to interweave the new legislative policies with the
The plaintiffs make a compelling legal argument that the salutary purposes of the wrongful death statute enunciated in O'Grady will be frustrated and basic common law maxims will be offended by permitting the hospital to reap the benefits of its fraudulent concealment by using section 537.100 as a sword instead of a shield to protect itself from liability in the face of its fraudulent conduct. The principal opinion makes light work of the plaintiffs' equitable estoppel argument, finding in a footnote that, while the plaintiffs' jurisprudential authority was "impressive and span[ned] nearly 200 years," none of it was controlling in interpreting section 537.100. While this Court is not bound by the authority of its sister states, it is bound, however, to follow its own decisions. Both O'Grady and United States Supreme Court decisions provide guidance about the application of equitable estoppel to statutes of limitation, which this Court must follow. The principal opinion chooses to ignore the abundance of case law that supports the plaintiffs' argument by relegating its discussion to a footnote rather than actually addressing the issue at hand.
"Statutes of limitation are primarily designed to assure fairness to defendants." Burnett v. New York Cent. R. Co., 380 U.S. 424, 429, 85 S.Ct. 1050, 1054, 13 L.Ed.2d 941 (1965). Further, "[s]tatutes of limitation... are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared." Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348-49, 64 S.Ct. 582, 586, 88 L.Ed. 788 (1944). "The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Id. at 349, 64 S.Ct. 582, 586. The principal opinion notes an important policy rationale behind the statute of limitations is to prevent the assertion of stale claims. "This policy of repose, designed to protect defendants, is frequently outweighed, however, where the interests of justice require vindication of the plaintiff's rights" because, in those cases, "a plaintiff has not slept on his [or her] rights but, rather, has been prevented from asserting them." Burnett, 380 U.S. at 429, 85 S.Ct. 1050. Taking the plaintiffs' claims of the hospital's fraudulent concealment as true, this Court must accept
With respect to Missouri's wrongful death statute, this Court explained:
Cummins v. Kansas City Pub. Serv. Co., 334 Mo. 672, 66 S.W.2d 920, 933 (1933) (Frank, J., concurring) (emphasis added). This Court reaffirmed these notions in O'Grady:
O'Grady, 654 S.W.2d at 909 (quoting Van Beeck v. Sabine Towing Co., 300 U.S. 342, 350-51, 57 S.Ct. 452, 456, 81 L.Ed. 685 (1937)) (Emphasis added).
A basic common law maxim, deeply rooted in this country's jurisprudence and older than the country itself, is that no person shall take advantage of or benefit from his or her wrong. Glus v. Brooklyn Eastern Dist. Terminal, 359 U.S. 231, 232, 79 S.Ct. 760, 762, 3 L.Ed.2d 770 (1959). "[T]his principle has been applied in many diverse classes of cases by both the law and equity courts and
Glus, 359 U.S. at 234, 79 S.Ct. 760 (quoting Union Mut. Ins. Co. v. Wilkinson, 80 U.S. (13 Wall.) 222, 233, 20 L.Ed. 617 (1871)).
"The purpose of the doctrine of equitable estoppel is to prevent a party from taking inequitable advantage of a situation he or she has caused." Weiss v. Rojanasathit, 975 S.W.2d 113, 120 (Mo. banc 1998). "A party is estopped to plead the statute of limitations only if that party made positive efforts to avoid the bringing of the suit against her or misled the claimants." Id. To apply the doctrine of equitable estoppel to bar a defendant's statute of limitations defense, the defendant must have acted affirmatively to induce the plaintiff to delay bringing the action. Id.
The principal opinion cites Weiss as an example of this Court's judicial restraint in failing to adopt "an appealing policy argument" and strictly construing a statute of limitations by deferring to the legislature's pronouncement and rejecting an equitable
While this Court is not bound to follow its sister states on issues of statutory interpretation, the cases can be instructive, especially when addressing the same legal issue under similar statutory frameworks. Several states have cited Glus' equitable estoppel principles to prevent a defendant from asserting the statute of limitations as an affirmative defense in wrongful death actions when that defendant has committed fraud to conceal his or her actions. Further, other jurisdictions applied the common law maxim regarding fraud vitiating any assertion of the statute of limitations in wrongful death actions, although without citation to Glus. Moreover, there are cases that apply these common law maxims and equitable estoppel to prevent defendants who have committed murders from relying on the wrongful death statute of limitations as a defense when sued civilly. To avoid unduly lengthening this dissent, see Beisly, 469 S.W.3d at 441-43, for a full discussion of these cases. In summation, these states, under similar wrongful death statutory frameworks, have seen fit to apply the long-standing doctrine of equitable estoppel to prevent a wrongdoer from benefiting from his or her own fraud, even when their statutes do not contain an express exception.
Although characterized as a "compelling policy argument" and then disregarded as a "`freewheeling' approach to statutory interpretation" by the principal opinion, Missouri would not enter into unchartered territory in applying equitable estoppel to wrongful death statutes of limitation. Missouri's adoption of these common law maxims predates Glus. In Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641 (1908), although not a wrongful death action, this Court reiterated the basic principle that "[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime. These maxima are adopted by public policy, and have their foundation in universal law administered in all civilized countries." Id. at 642-43 (quoting Box v. Lanier, 112 Tenn. 393, 79 S.W. 1042, 1045 (1904)). This Court acknowledged these common law maxims were adopted expressly as Missouri law and later codified by section 1.010, the common law reception statute. Id. at 644. In Perry, this Court considered, and ultimately rejected, the notion that these common law maxims were "either expressly or impliedly changed or modified" by statute or that the common law either repealed, changed or modified them. Id.
The principal opinion also states the legislative history of section 537.100 indicates the General Assembly's intent to not include a fraudulent concealment exception. The principal opinion strongly adheres to the concept of legislative acquiescence or inaction to support its position. The principal opinion claims that, because the legislature has not amended section 537.100 to include any fraudulent concealment exception after this Court's decision in Frazee, the legislature's inaction is conclusive no matter what factual or legal scenario is presented later. This Court has held that, while legislative inaction is "not conclusive of legislative approval, such inaction can be considered." South Metro. Fire Prot. Dist. v. City of Lee's Summit, 278 S.W.3d 659, 669 n.11 (Mo. banc 2009). Further, this Court has cautioned, "[I]t is speculative to infer legislative approval from legislative inaction." Med. Shoppe Int'l, Inc. v. Dir. of Revenue, 156 S.W.3d 333, 334 (Mo. banc 2005). This Court's jurisprudence is clear that when common law maxims are not codified, they continue to exist and should be interwoven with the statute's interpretation, unless those maxims have been changed, modified, or eliminated. Perry, 108 S.W. at 644.
The principal opinion's reading of the statute leads to an illogical and absurd result. One cannot fathom that the legislature's intent when enacting the wrongful death statute of limitations was to permit tortfeasors to evade liability for causing wrongful deaths so long as the tortfeasors could conceal their wrongdoing until the statute of limitations expired, while other torfeasors, guilty of the same conduct, except for the fortuity that it merely caused injury instead of death, or merely were not as good at concealing their actions, would be held liable for damages.
Finally, I believe applying equitable estoppel to foreclose the hospital from asserting the statute of limitations does nothing to engraft a "de facto exception" onto section 537.100. Equitable estoppel prevents a wrongdoer from pleading the statute of limitations as a defense for purposes of a motion to dismiss. It does not contradict the notion that a wrongful death claim accrues at death nor does it toll the running of the statutory period. It simply prevents the hospital from asserting this defense if the plaintiffs prove the hospital fraudulently concealed its actions such that it prevented the plaintiffs from filing their claims. It is important to note that applying equitable estoppel does not mean the plaintiffs are entitled to relief on their claims against the hospital. The plaintiffs must still prove fraud, along with the elements of wrongful death, to prevail.
The principal opinion's inordinate adherence to a purely speculative interpretation of inaction results in what O'Grady explicitly cautioned against: "It would be a misfortune if a narrow or grudging process of construction were to exemplify and perpetuate the very evils to be remedied." O'Grady, 654 S.W.2d at 909. The principal opinion's decidedly narrow and grudging construction of section 537.100 does everything to perpetuate the evils committed by the hospital and does nothing to promote the legislative purpose and provide the
Based on the reasoning set forth in Beisly and the arguments here, I would hold equitable estoppel forecloses the hospital from relying on the statute of limitations as an affirmative defense due to its fraudulent concealment. To hold otherwise would permit the hospital to benefit from its own fraud in contravention of deeply rooted common law maxims and would offend the three objectives advanced by our legislature that the wrongful death act was enacted to achieve as discussed in O'Grady.
THEODORE SEDGWICK, A TREATISE ON THE RULES WHICH GOVERN THE INTERPRETATION AND CONSTRUCTION OF STATUTORY AND CONSTITUTIONAL LAW, 277 (Pomeroy, ed., 2d ed. 1874, reprint 2012).
