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Robinson v. Pacificorp9/15/2000
statute to apply if there was no death caused by the other. The court did there, by judicial fiat, what the Wyoming legislature has done by statute. The Kansas court later, on rehearing, though, in Prowant v. Kings-X, Inc., 1959, 185 Kan. 602, 347 P.2d 254, reversed itself and concluded that the survival statute means what it says and allows a recovery on behalf of the estate for its losses, separate and apart from the wrongful death act. DeHerrera, 565 P.2d at 483.
We remain convinced that this is the correct interpretation of Wyoming's unique survival statute. Accordingly, because Robinson alleges that her husband's death resulted from injuries inflicted by the appellees, her claim is limited to a wrongful death cause of action.
Given this result, we turn our attention to the question of whether Robinson's claim was filed within the required time limitation set forth in the wrongful death statutes. This Court addressed this issue in Corkill, wherein we held that the two-year limitation contained within ยง 1-38-102(d) creates a condition precedent rather than a statute of limitation and that the statute's language does not lend itself to the application of the discovery rule. 955 P.2d at 442. In the case at bar, Robinson's husband's death occurred in November of 1987, and the two-year condition precedent began to run on that date. Robinson did not bring a claim against the appellees until ten years later; consequently, her claim is untimely. The district court, therefore, properly granted the appellees' motions to dismiss.
Affirmed.
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