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Judicial Legislation & the Survivor Act

On behalf of Cohn Lifland Pearlman Herrmann & Knopf LLP | Dec 28, 2016 |


In Warren v. Muenzen, – A.3d — (2016), the Appellate Division clarified the statute of limitations (“SOL”) applicable to claims brought under the Survivor Act (“Act”). The claims arose out of a misdiagnosis of prostate cancer in 2009, which lead to the death of Mr. Robert Warren in 2011. Mr. Warren’s widow filed suit in 2013, seeking damages for personal injury claims pursuant to the Act, which allows the estate to recover for “any personal cause of action that the decedent would have had if she or he had survived.” Defendant moved for summary judgment, arguing that they were barred by the SOL which requires all personal injury claims to be brought within two years of accrual. The trial court interpreted the Act, which stated that “every action brought under this chapter shall be commenced within two years after the death of the decedent,” to say that if the decedent had a timely cause of action at the time of death, then the estate has an extended two years to file a survival action. Thus, Mr. Warren had a valid cause of action at the time of his death based on the cancer misdiagnosis, and the court denied summary judgment.

The Appellate Division reversed the decision of the trial court, and sent it back for an order dismissing the plaintiff’s claims as time barred. Looking at the legislative history of the Act, the panel reasoned that a literal reading of the statute as amended would produce the absurd result of “extend[ing] the SOL applicable to numerous causes of action, not themselves dependent on death, based solely on the happenstance of death within the limitations period.” The panel found that the intended purpose of the Amendment was to eliminate the SOL for actions such as murder or manslaughter, and for all other actions the statute incorporates the SOL for the underlying cause of action. In this case, the two-year SOL applicable to personal injury claims had expired in 2011, and the Plaintiff’s claims were time barred.