FSM 3 Intrm. 463-464

FSM SUPREME COURT

TRIAL DIVISION (Pon.)

Cite as Sarapio v. Maeda Road Construction co., Ltd. ,

3 FSM Intrm. 463 (Pon.1988)

[3 FSM Intrm. 463]

IUHLANA SARAPIO, as Personal

Representative of the ESTATE

of Alberto Sarapio, Deceased

Plaintiff,

MAEDA ROAD CONSTR. CO., LTD.

Defendant.

FSM CIV. NO. 1987-014

OPINION

Before Edward C. King

Chief Justice

October 12, 1988

APPEARANCES:

For the Plaintiff: Paul A. Lawlor

Attorney at Law

MOORE, CHING, BOERTZEL & LAWLOR

Suite 400 FGIC Building

414 West Soledad Avenue

Agana, Guam 96910

For the Defendants: R. Barrie Michelsen

Attorney at Law

Ramp & Michelsen

P.O. Box 1480

Kolonia, Pohnpei 96941

* * * *

HEADNOTES

Civil Procedure

Conflicting affidavits show that the circumstances surrounding the execution of a document allegedly reflecting plaintiffs acceptance of a settlement and her release of, defendant and others from liability for the death of her late husband are not sufficiently clear to permit summary judgment either as to the efficacy of that document or as to the application to the plaintiff's claims of the statute of limitations found at 6 F.S.M.C. 503(2). Citing Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107

[3 FSM Intrm. 464]

(Pon. 1985). Sarapio v. Maeda Road Constr. Co., 3 FSM Intrm. 463, 464 (Pon. 1988).

Limitations of Actions

The two-year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. Accordingly, the statute of limitations has not run against the minor children in this case. Citing Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107 (Pon. 1935). Sarapio v. Maeda Road Constr. Co., 3 FSM Intrm. 463, 464 (Pon. 1988 ).

COURT'S OPINION

EDWARD C. KING, Chief Justice:

The wrongful death complaint here alleges that Alberto Sarapio, a former employee of Maeda Road Construction Company, Ltd., died on August 30, 1980 of injuries sustained at Maeda's construction site at the Pohnpei international airport when a piece of heavy earthmoving equipment, a road grader, was negligently driven over him as he leaned against its left front wheel, asleep during his mid-day lunch break.

The lawsuit was filed against Maeda on March 18, 1987, by Iuhlana Sarapio as administratrix of her deceased husband's estate, and on behalf of herself and their minor children. Maeda has moved to dismiss the complaint on grounds that 6 F.S.M.C. 503(2) requires any wrongful death action to be instituted within two years of the death.

This Court has held that "the two-year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806." Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 115 (Pon. 1985). Accordingly,as in Luda, the statute of limitations has not run against the minor children of Alberto Sarapio

This case also is similar to Luda in that the record is not sufficient to determine whether the claims of Iuhlana Sarapio on her own behalf are time-barred. This record too contains "reference to facts which might cast doubt on the otherwise obvious conclusion" that the statute has expired.

2 FSM Intrm. at 115.

In addition to seeking dismissal of Mrs. Sarapio's individual claims based on the statute of limitations, Maeda also seeks summary judgment against Mrs. Sarapio individually based upon a document, dated January 8, 1981, allegedly reflecting Mrs. Sarapio's acceptance of a settlement payment of $5,635.22, and her release of Maeda and others from liability for her late husband's death. The circumstances surrounding execution of that document, as shown in the conflicting affidavits filed by the parties, are not sufficiently clear to permit judgment either as to the efficacy of the purported release or as to application of the statute of limitations to Mrs. Sarapio's claims. Genuine issues of material fact remain.

The defendant's motions to dismiss and for summary judgment all are denied.


	FSM SUPREME COURT TRIAL DIVISION (Pon.) Cite as Sarapio v. Maeda Road Construction co., Ltd. , 3 FSM Intrm. 463 (Pon.1988) [3 FSM Intrm. 463] IUHLANA SARAPIO, as Personal Representative of the ESTATE of Alberto Sarapio, Deceased Plaintiff, v. MAEDA ROAD CONSTR. CO., LTD. Defendant. FSM CIV. NO. 1987-014 OPINION Before Edward C. King Chief Justice October 12, 1988 APPEARANCES: For the Plaintiff: Paul A. Lawlor Attorney at Law MOORE, CHING, BOERTZEL & LAWLOR Suite 400 FGIC Building 414 West Soledad Avenue Agana, Guam 96910 For the Defendants: R. Barrie Michelsen Attorney at Law Ramp & Michelsen P.O. Box 1480 Kolonia, Pohnpei 96941 * * * * HEADNOTES Civil Procedure Conflicting affidavits show that the circumstances surrounding the execution of a document allegedly reflecting plaintiffs acceptance of a settlement and her release of, defendant and others from liability for the death of her late husband are not sufficiently clear to permit summary judgment either as to the efficacy of that document or as to the application to the plaintiff's claims of the statute of limitations found at 6 F.S.M.C. 503(2). Citing Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107 [3 FSM Intrm. 464] (Pon. 1985). Sarapio v. Maeda Road Constr. Co., 3 FSM Intrm. 463, 464 (Pon. 1988). Limitations of Actions The two-year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806. Accordingly, the statute of limitations has not run against the minor children in this case. Citing Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107 (Pon. 1935). Sarapio v. Maeda Road Constr. Co., 3 FSM Intrm. 463, 464 (Pon. 1988 ). COURT'S OPINION EDWARD C. KING, Chief Justice: The wrongful death complaint here alleges that Alberto Sarapio, a former employee of Maeda Road Construction Company, Ltd., died on August 30, 1980 of injuries sustained at Maeda's construction site at the Pohnpei international airport when a piece of heavy earthmoving equipment, a road grader, was negligently driven over him as he leaned against its left front wheel, asleep during his mid-day lunch break. The lawsuit was filed against Maeda on March 18, 1987, by Iuhlana Sarapio as administratrix of her deceased husband's estate, and on behalf of herself and their minor children. Maeda has moved to dismiss the complaint on grounds that 6 F.S.M.C. 503(2) requires any wrongful death action to be instituted within two years of the death. This Court has held that "the two-year period proclaimed in 6 F.S.M.C. 503(2) is subject to the tolling provisions of 6 F.S.M.C. 806." Luda v. Maeda Road Constr. Co., 2 FSM Intrm. 107, 115 (Pon. 1985). Accordingly,as in Luda, the statute of limitations has not run against the minor children of Alberto Sarapio This case also is similar to Luda in that the record is not sufficient to determine whether the claims of Iuhlana Sarapio on her own behalf are time-barred. This record too contains "reference to facts which might cast doubt on the otherwise obvious conclusion" that the statute has expired. 2 FSM Intrm. at 115. In addition to seeking dismissal of Mrs. Sarapio's individual claims based on the statute of limitations, Maeda also seeks summary judgment against Mrs. Sarapio individually based upon a document, dated January 8, 1981, allegedly reflecting Mrs. Sarapio's acceptance of a settlement payment of $5,635.22, and her release of Maeda and others from liability for her late husband's death. The circumstances surrounding execution of that document, as shown in the conflicting affidavits filed by the parties, are not sufficiently clear to permit judgment either as to the efficacy of the purported release or as to application of the statute of limitations to Mrs. Sarapio's claims. Genuine issues of material fact remain. The defendant's motions to dismiss and for summary judgment all are denied.