This matter comes before the court on a motion for summary judgment to dismiss plaintiff's claims for wrongful death. The claim was asserted in an amended complaint filed more than two years after decedent's death.
Plaintiff's decedent, John Phillips, (hereinafter Phillips), filed a complaint on 12/3/87. Phillips alleged that he had not yet
been diagnosed with asbestos disease; however, an examination had indicated lung changes consistent with asbestos exposure. Phillips was, therefore, filing to preserve his right. Phillips died of lung cancer on December 16, 1987.
In early 1991, plaintiff's present counsel was substituted for her prior attorney.
In February of 1991, plaintiff provided answers to interrogatories which included expert reports linking said decedent's death to his asbestos exposure. However, it was not until September 27, 1991, that plaintiff filed her motion to amend for wrongful death. The amended complaint was ultimately filed on December 26, 1991. Defendant asserts that plaintiff's claims for wrongful death should be dismissed for failure to comply with the statute of limitations. Two issues are raised which this court must resolve. The first is whether the statute of limitations is tolled for a wrongful death claim made by an infant plaintiff. The next issue is whether plaintiff's wrongful death complaint relates back to the filing of the original complaint.
The right to sue for wrongful death is purely statutory, since no such right existed at common law. Alfone v. Sarno 87 N.J. 99, 104, 432 A.2d 857 (1981). The Wrongful Death Act, N.J.S.A. 2A:31-1, et seq., creates a separate cause of action whereby the beneficiaries of the deceased may recover pecuniary losses which arose as a result of that individual's early demise. Id. at 107, 432 A.2d 857.
N.J.S.A. 2A:31-3, concerns the statute of limitations for such actions and provides:
Every action brought under this chapter shall be commenced within two years after the death of the decedent and not thereafter.
The aforementioned statute differs from N.J.S.A. 2A:14-2, in that the wrongful death statute focuses on the date of death as opposed to the accrual of the action, Presslaff v. Robins 168 N.J. Super. 543, 546, 403 A.2d 939 (App.Div.1979). The two-year limitation is therefore a condition which must be
met before one secures the right to file such an action. Marshall v. Geo. M. Brewster & Son, Inc. 37 N.J. ...