Mertz v. 999 Quebec, Inc.

Summary

The Supreme Court of North Dakota considered an appeal from summary judgment dismissing Shirley Mertz’s survival action alleging asbestos-related injuries and death. The court held that the discovery rule does not toll accrual of a survival action beyond the decedent’s date of death, and treated the attempted appeal from the summary judgment order as an appeal from the subsequently entered judgment. The action was therefore barred by the applicable six-year statute of limitations.

Holdings

1. An order granting summary judgment is not independently appealable, but an attempted appeal may be treated as an appeal from a subsequently entered consistent judgment when such a judgment exists.
2. Summary judgment was improper because the record contained a genuine issue of material fact concerning when Allen Mertz or his survivors received information sufficient to place them on notice that asbestos exposure might have caused his cancer.
3. The court did not adopt a binding majority rule on whether the discovery rule may extend accrual of a survival action beyond the decedent's death because no three justices agreed on that issue.

Questions Presented

1. Whether the appeal from an order granting summary judgment could be treated as an appeal from a subsequently entered consistent judgment.
2. Whether summary judgment was proper where the evidence created a genuine issue of material fact concerning when Allen Mertz or his family received notice that his cancer might have been caused by asbestos exposure.
3. Whether the discovery rule may extend accrual of a survival action beyond the decedent's death.

Disposition

reversed_and_remanded