Bradshaw v. Soulsby, 210 W. Va. 682

Summary

The Supreme Court of Appeals of West Virginia held that the discovery rule may toll the two-year statute of limitations for wrongful death actions under West Virginia Code § 55-7-6(d). The court overruled Miller v. Romero to the extent it conflicted with that holding and concluded that the plaintiff's action, filed two years and three days after the decedent's death but within two years of discovering the alleged wrongful cause of death, was timely. The court reversed and remanded the dismissal of the action.

Holdings

1. The discovery rule applies to actions arising under West Virginia's wrongful-death act because the statutes contain no clear prohibition against its application.
2. Under the discovery rule, the two-year limitations period begins when the decedent's representative knows or, through reasonable diligence, should know that the decedent died, that the death resulted from wrongful act, neglect, or default, the identity of the person or entity who owed a duty and may have breached it, and that the wrongful conduct caused the death.
3. The complaint was timely because the record suggested that Bradshaw first discovered the potentially wrongful cause of her husband's death on October 20, 1997, and filed suit on October 20, 1999.
4. Miller v. Romero is overruled to the extent that it conflicts with the application of the discovery rule to wrongful-death actions.

Questions Presented

1. Whether the discovery rule may toll the two-year statute of limitations for a wrongful-death action under West Virginia Code § 55-7-6(d).
2. Whether the circuit court properly dismissed the complaint as untimely when it was filed two years and three days after the decedent's death but within two years after the plaintiff allegedly discovered the wrongful cause of death.
3. Whether Miller v. Romero should be overruled to the extent it conflicts with application of the discovery rule to wrongful-death actions.

Disposition

reversed_and_remanded