In a case of apparent first impression, the Ninth Circuit Court of Appeals has decided when a cause of action in admiralty for wrongful death accrues. In Deem v. William Powell Co., 33 F.4th 554 (9th Cir. 2022), a shipyard machinist contracted mesothelioma while employed in repairing naval vessels. His illness was diagnosed on February 20, 2015, and he died on July 3, 2015. His wife filed suit within three years of his death but more than three years after the illness was diagnosed. The federal district court ruled that the claim was time-barred because the three-year statute of limitations began to run at the time of the diagnosis.
The issue on appeal was succinctly stated: "When does a wrongful death claim accrue in a maritime case?" Id. at 559. To decide the question, the appellate court recognized that there is a fundamental distinction between survival actions and wrongful death actions under admiralty law. A survival action is for the benefit of the directly injured victim, while a wrongful death action benefits the decedent’s family members who are deprived of his presence when he dies.
Thus, the survival cause of action accrues at the time an injury occurs or is discovered. On the other hand, a wrongful death claim cannot arise before death occurs because one of the elements of the cause of action is death itself. Therefore, the court reasoned that the statute of limitations begins to run at death. The court posited an example to support its conclusion:
Consider a hypothetical case like this one, but where an illness from mesothelioma lingered on for more than three years after diagnosis but before death. In that hypothetical case, if one credited defendants' argument that there was discovery of injury from mesothelioma when illness was discovered, then any recovery for wrongful death would have been extinguished before the death even occurred. That result could not be reconciled with the Supreme Court's holding and reasoning in Moragne [v. States Marine Lines, Inc., 398 U.S. 375 (1970)], that the maritime law permits a claim for wrongful death for benefit of surviving family, distinct from the claim of the seaman for personal injury. Thus, we hold that the text of 46 U.S.C. § 30106 requires two separate accrual dates for the two separate claims. We hold that the uniform maritime three-year statute of limitations on a wrongful death claim begins to accrue on the date of the fulfillment of the condition precedent to bringing the wrongful death claim, i.e., a decedent's death. Where the cause of death is known at time of death, suit for wrongful death can be brought for three years thereafter.
Id. at 565.