Reading the provisions of N.C.G.S. §§ 1-15(c), 90-21.11 and 1-53(4) together and considering the function of a statute of repose, the legislature did not intend for actions premised on medical malpractice to be instituted more than four years after the last allegedly negligent act, even when the damages sought are for wrongful death. Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of the Court of Appeals, 159 N.C. App. 272, 583 S.E.2d 648 (2003), affirming a judgment entered 29 January 2002 by Judge Mark E. Klass in Superior Court, Iredell County. Heard in the Supreme Court 15 March 2004. Comerford Britt, L.L.P., by Clifford Britt and Terre T. Yde, for plaintiff-appellant.Carruthers Roth, P.A., by Richard L. Vanore and Norman F. Klick, Jr., for defendants-appellees.Womble Carlyle Sandridge Rice, PLLC, by Sara R. Lincoln, on behalf of the North Carolina Association of Defense Attorneys, amicus curiae.
But where the relevant facts are not in dispute, all that remains is the question of [the statute of] limitations which is a matter of law." Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003) (citing Poultry Co. v. Oil Co., 272 N.C. 16, 21, 157 S.E.2d 693, 697 (1967); Yancey v. Watkins, 17 N.C. App. 515, 519, 195 S.E.2d 89, 92, cert. denied, 283 N.C. 394, 196 S.E.2d 277 (1973)), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004). Once the statue of limitations has been pled, the burden is on the plaintiff to show that his cause of action accrued within the limitations period.
The necessary elements of wrongful death under North Carolina law are "negligence and a death as a direct and proximate result." Udzinski v. Lovin, 159 N.C.App. 272, 275 (2003). North Carolina negligence, in turn, requires the plaintiff to show "(1) the defendant owed the plaintiff a duty of care; (2) the defendant's conduct breached that duty; (3) the breach was the actual and proximate cause of the plaintiff's injury; and (4) damages resulted from the injury."
North Carolina law would appear to indicate that it does-accruing on the date of death. N.C. Gen. Stat. § 1-53(4); Udzinski v. Lovin, 159 N.C,App. 272, 278, 583 S.E.2d 648, 652 (2003). When a claim pursuant to the FTCA accrues, however, is a question of federal law. Gould, 905 F.2d at 742.
For support he relies on a non-precedential opinion from the North Carolina Court of Appeals, which explained that an “action for wrongful death is an action created by statute, and distinct from any underlying claims, even the claim upon which the wrongfulness of the death depends.” Udzinski v. Lovin, 159 N.C.App. 272, 583 S.E.2d 648, 652 (2003) (Elmore, J., writing only for himself), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004). He argues further that the rights remedied by the Wrongful Death Act belong to the decedent's heirs and not to the decedent.
See King v. Cape Fear Mem'l Hosp., Inc. , 96 N.C. App. 338, 341, 385 S.E.2d 812, 814 (1989) (holding discovery exception for latent injuries contained in N.C. Gen. Stat. § 1-15(c) did not apply to a wrongful death action based upon medical malpractice), disc. review denied , 326 N.C. 265, 389 S.E.2d 114 (1990). Regardless of whether defendant pleaded a wrongful death claim in addition to a medical malpractice claim in this case, see Udzinski v. Lovin , 159 N.C. App. 272, 275, 583 S.E.2d 648, 650-51 (2003) (explaining that although not perfectly worded, the plaintiff had sufficiently alleged a wrongful death claim in addition to and based on the underlying medical malpractice claim), both limitations periods expired prior to plaintiff's filing of the 2016 Complaint on 1 February 2016, almost four years after decedent's death on 30 April 2012. That, however, does not end our inquiry.
The decision of a trial court to dismiss an action based on the statute of limitations is reviewed by this Court de novo. Udzinski v. Lovin, 159 N.C.App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd per curiam, 358 N.C. 534, 597 S.E.2d 703 (2004). Ordinarily, a dismissal predicated upon the statute of limitations is a mixed question of law and fact.
Leary v. N.C. Forest Prods., Inc., 157 N.C.App. 396, 400, 580 S.E.2d 1, 4,aff'd per curiam,357 N.C. 567, 597 S.E.2d 673 (2003). Further, when there are no disputed factual issues, issues regarding the application of a statute of limitations or statute of repose are questions of law reviewable de novo. Udzinski v. Lovin, 159 N.C.App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd,358 N.C. 534, 597 S.E.2d 703 (2004). According to N.C. Gen.Stat. § 90–21.
“ McGuire v. Riedle, 190 N.C.App. 785, 787, 661 S.E.2d 754, 757 (2008) (quoting Phillips, 155 N.C.App. at 376, 573 S.E.2d at 603) (first alteration in original). Finally, when no disputed factual issues need to be resolved, issues regarding the application of a statute of limitations or statute of repose are questions of law, which this Court reviews de novo. Udzinski v. Lovin, 159 N.C.App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd,358 N.C. 534, 597 S.E.2d 703 (2004). B. Nature of Plaintiff's Claim
But where the relevant facts are not in dispute, all that remains is the question of limitations which is a matter of law." Taylor v. Hospice of Henderson County, Inc., ___ N.C. App. ___, ___, 668 S.E.2d 923, 926 (2008) (quoting Udzinski v. Lovin, 159 N.C. App. 272, 273, 583 S.E.2d 648, 649 (2003), aff'd, 358 N.C. 534, 597 S.E.2d 703 (2004)) (citations omitted). As a result, where a dismissal predicated on statute of limitations grounds is granted based on N.C. Gen. Stat. § 1A-1, Rule 12(b)(6), the relevant standard is whether, construing the complaint liberally in favor of the plaintiff, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted. Country Club of Johnston County, Inc. v. United States Fid. Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002).