Statutes of Limitation and Proper Plaintiffs In Kansas and Missouri Wrongful Death Laws

The difference between wrongful death law in Missouri and Kansas can be a source of difficulty. This article addresses two of the many substantive areas of difference, the proper party to bring the action, and the statute of limitations.

Proper Plaintiffs
in Kansas

Under the Kansas statutes, two separate and distinct causes of action arise when death results from negligence - a survival action, K.S.A. § 60-1801 (1994), and a wrongful death action, K.S.A. § 60-1901 (1994). Scheuler v. Aamco Transmissions, Inc., 1 Kan. App.2d 525 (Kan. Ct. App. 1977). A survival action is brought to recover damages on behalf of the decedent's estate for injuries suffered by the decedent prior to death. The survival action must be brought by the administrator of the decedent's estate. K.S.A.§ 60-1801.

A wrongful death action is brought to recover damages "for the exclusive benefit of all of the heirs who have sustained a loss regardless of whether they all join or intervene." K.S.A. § 60-1902. The term "heir" refers to "one who takes by intestate succession under the Kansas statutes." Baugh v. Baugh, 25 Kan. App. 2d 871 (1999). Under the Kansas intestate succession statutes, when a Kansas decedent leaves a surviving spouse and/or children, the decedent's parents or siblings are not heirs. Id. Monetary recovery under the wrongful death statute is apportioned by the court to the heirs according to the individual loss sustained. K.S.A. § 60-1905. Selection of

the heir to bring the wrongful death action can be important in determining jurisdiction. (See Practice Tips on page 6.)

Proper Plaintiffs
in Missouri

In Missouri all the elements of damages are brought in a single action by a member of one of the classes of individuals enumerated in Mo. Rev. Stat. § 537.080 (1999). The order of priority to determine who is a plaintiff under the Act is: (1) spouse, children (or surviving lineal descendants of any deceased children, natural or adopted, legitimate or illegitimate); mother or father; (2) brother or sister or their descendants; and (3) a plaintiff ad litem. If there is not a plaintiff in the first priority, then a plaintiff in the second or third priority may bring the case. The circuit court will apportion the recovery pursuant to Mo.Rev.Stat. § 537.095.

Kansas Statute
of Limitations

In Kansas, the limitation period for a wrongful death action is two years. K.S.A. § 60-513 (1994). The Kansas Supreme Court, however, has held that under K.S.A. § 60-1901, a wrongful death action is barred if the injured party could not have brought an action for his personal injuries at the time of his death. Mason v. Gerin Corp., 231 Kan. 718, 725 (1982). For example, if the statute of limitations expires on a personal injury claim before a person dies, a subsequent wrongful death action will not accrue. The statute of limitations for the survival action pursuant to K.S.A. § 60-1801 is two years

from the date of the negligence that produced the injury, not two years from the date of death. Therefore the statute of limitation on the survival action will often run before the statute of limitations of the wrongful death action.

Missouri Statute
of Limitations

In Missouri, a wrongful death action must be brought within three years from the date of the decedent's death. Mo. Rev. Stat. § 537.100 (1988). When the decedent's death is caused by medical negligence the three-year wrongful death statute applies rather than the two-year medical malpractice statute of limitations. Gramlich v. Travelers Ins. Co., 640 S.W.2d 180, 183 (Mo. Ct. App. 1982). A claim for loss of chance of survival must be brought within two years from the date of the negligent act. Caldwell v. Lester E. Cox Med. Cent.-South, 943 S.W.2d 5 (Mo. Ct. App. 1997).

Unlike Kansas, in Missouri an heir may bring the combined wrongful death and survival claim even if the statute of limitations on the decedent's personal injury claim expired before the decedent's death. Id. Regardless of when the malpractice occurred, the wrongful death statute of limitations runs for three years beginning from the date of decedent's death. The heir must prove, of course, that the malpractice caused or contributed to cause the decedent's death. Under the Missouri approach, the surviving family of the victim of medical negligence, whose death does not ensue until several years later, is not deprived of a remedy.