Every action instituted by virtue of the provisions of this and the preceding section [41-2-1 NMSA 1978] must be brought within three years after the cause of action accrues. The cause of action accrues as of the date of death.

History: Laws 1882, ch. 61, § 9; C.L. 1884, § 2316; Code 1915, § 1822; C.S. 1929, § 36-103; 1941 Comp., § 24-102; Laws 1953, ch. 30, § 1; 1953 Comp., § 22-20-2; Laws 1961, ch. 202, § 1.

Compiler's notes. — Laws 1887, ch. 2, § 7, repealed §§ 2315, 2316, 1884 Comp. Both the 1887 act and § 2315 related to injuries to livestock by railroads. Laws 1889, ch. 75, repealed the act of 1887 in its entirety including its repealing clause. In Gallegos v. Atchison, T. & S.F. Ry., 1923-NMSC-032, 28 N.M. 472, 214 P. 579, the latter repeal was held to have revived this section, and the court incidentally also held that this section applies to 41-2-4 NMSA 1978.

The 1915 Code compilers substituted "this and the preceding section" for "this act." Laws 1882, ch. 61, is presently compiled as 41-2-1 to 41-2-4 and 30-32-4 NMSA 1978.

1953 amendment prospective only. — If decedent dies in 1952 while one year period for bringing suit is in effect, that one year limitation governs, and not the 1953 amendment of three years, which is prospective only. Wall v. Gillett, 1956-NMSC-060, 61 N.M. 256, 298 P.2d 939.

Scope of 1961 amendment. — The 1961 amendment simply provides that the limitation period begins running, as to the personal representative's cause of action, upon the death of the injured person. Stang v. Hertz Corp., 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Effect of 1961 amendment. — The 1961 amendment did not change the character of this section as a survival statute. Stang v. Hertz Corp., 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45, aff'd, 81 N.M. 348, 467 P.2d 14.

Effect of reviving repealed section. — This section, although specifically repealed by Laws 1887, ch. 2, § 7, was revived by Laws 1889, ch. 75, which repealed the latter act. The fact that § 5426, 1915 Code, prohibits such revivor unless so provided did not affect the instant action for damages, which was brought before the latter law went into effect. Gallegos v. Atchinson, T. & S.F. Ry. Co., 1923-NMSC-032, 28 N.M. 472, 214 P. 579.

Nature of wrongful death provisions. — New Mexico Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978] creates a cause of action which did not exist at common law and the limitation provisions thereof are not only a limitation on the remedy, but also on the right to institute such an action. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Limitation. — The limitation provision applicable to actions for wrongful death is not only a limitation on the remedy but also on the right to institute such action. Wall v. Gillett, 1956-NMSC-060, 61 N.M. 256, 298 P.2d 939.

When cause of action arises. — Section 41-2-1 NMSA 1978 is a survival statute under which the cause of action arises at time of death. State ex rel. De Moss v. Dist. Court, 1951-NMSC-010, 55 N.M. 135, 227 P.2d 937.

The second sentence of this section provides for a specific date on which a cause of action accrues. Clark v. Lovelace Health Sys., Inc., 2004-NMCA-119, 136 N.M. 411, 99 P.3d 232.

Effect of statute of limitations. — Not only the remedy but the right to maintain suit was barred where damages were sought for wrongful death on account of alleged negligence of relator in performing surgery on decedent and complaint was filed more than one year (now three years) after death occurred. State ex rel. De Moss v. Dist. Court, 1951-NMSC-010, 55 N.M. 135, 227 P.2d 937.

Effective date of statute. — The statute of limitations in effect at the time of death governed the right to prosecute a wrongful death action and the defendant was exempt from all claims after the expiration of the time fixed. Wall v. Gillett, 1956-NMSC-060, 61 N.M. 256, 298 P.2d 939.

Limitation period for claim of malpractice resulting in wrongful death. — The specific inclusion of a wrongful death claim within the definition of a malpractice claim makes the limitation period of 41-5-13 NMSA 1978 applicable to a claim of malpractice resulting in wrongful death. Armijo v. Tandysh, 1981-NMCA-098, 98 N.M. 181, 646 P.2d 1245, cert. quashed, 98 N.M. 336, 648 P.2d 794 (1982), and cert. denied, 459 U.S. 1016, 103 S. Ct. 377, 74 L. Ed. 2d 510 (1982), overruled on other grounds by Roberts v. SW Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442; Mackey v. Burke, 1984-NMCA-028, 102 N.M. 294, 694 P.2d 1359, overruled by Chavez v. Regents of Univ. of N.M., 1985-NMSC-114, 103 N.M. 606, 711 P.2d 883.

Different periods are not equal protection violation. — There is no equal protection violation because a wrongful death claim based on malpractice has a limitation period different from a wrongful death claim which does not involve malpractice. Armijo v. Tandysh, 1981-NMCA-098, 98 N.M. 181, 646 P.2d 1245, cert. quashed, 98 N.M. 336, 648 P.2d 794 (1982), and cert. denied, 459 U.S. 1016, 103 S. Ct. 377, 74 L. Ed. 2d 510 (1982), overruled on other grounds by Roberts v. SW Cmty. Health Servs., 1992-NMSC-042, 114 N.M. 248, 837 P.2d 442.

The doctrine of fraudulent concealment applies to toll the limitations period. — It is consistent with the purpose of the Wrongful Death Act (WDA) to toll the statutory limitations period where a defendant has fraudulently concealed the cause of action, and therefore when the appropriate showing is made, the common law doctrine of fraudulent concealment applies to an action under the WDA. To toll a statutory limitations period under the doctrine of fraudulent concealment, the plaintiff must prove that the defendant knew of the alleged wrongful act and concealed it from the plaintiff or had material information pertinent to its discovery which he failed to disclose, and the plaintiff did not know, or could not have known through the exercise of reasonable diligence, of the cause of action within the statutory period. If the plaintiff meets the burden of proof and the doctrine tolls the statutory limitations period, the statute commences to run again when the plaintiff discovers, or through the exercise of reasonable diligence should have discovered, the cause of action. Estate of Brice v. Toyota Motor Corp., 2016-NMSC-018, overruling Perry v. Staver, 1970-NMCA-096, 473 P.2d 380 and Clark v. Lovelace Health Systems, Inc., 2004-NMCA-119, 99 P.3d 232.

Where defendants were aware of a sudden acceleration problem in their vehicles for many years preceding the accident which killed decedent, and where defendants prevented plaintiff from obtaining knowledge about the cause of action and fraudulently concealed the sudden acceleration problems until the problems drew public attention several years after the accident, the doctrine of fraudulent concealment served to toll the statutory limitations period for plaintiffs' cause of action under the Wrongful Death Act. Estate of Brice v. Toyota Motor Corp., 2016-NMSC-018, overruling Perry v. Staver, 1970-NMCA-096, 473 P.2d 380 and Clark v. Lovelace Health Systems, Inc., 2004-NMCA-119, 99 P.3d 232.

Tolling provisions in Medical Malpractice Act inapplicable. — The tolling provisions applicable to minors under the age of nine years contained in 41-5-13 NMSA 1978 (the Medical Malpractice Act) apply only to minors who suffer an alleged act of malpractice and not to minors who are beneficiaries under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978]. Moncor Trust Co. ex rel. Flynn v. Feil, 1987-NMCA-015, 105 N.M. 444, 733 P.2d 1327, cert. denied, 105 N.M. 421, 733 P.2d 869.

Choice of law. — Where torts are committed beyond the territorial jurisdiction of the sovereignty in which the action is brought, the lex fori governs, no matter whether the right of action depends upon the common law or a local statute, unless the statute creating or conferring the right limits the duration of such right to a prescribed time. Munos v. Southern Pac. Co., 51 F. 188 (5th Cir. 1892).

Effect on amount of damages. — The 1961 amendment made no change in the damages the personal representative might recover, since it did no more than change the time when the limitation period begins to run against the personal representative's cause of action. Stang v. Hertz Corp., 1969-NMCA-118, 81 N.M. 69, 463 P.2d 45, aff'd, 1970-NMSC-048, 81 N.M. 348, 467 P.2d 14.

Discovery. — The legislature has not felt it necessary to amend the language of the Wrongful Death Statute to allow for application of a discovery rule. Clark v. Lovelace Health Systems, Inc., 2004-NMCA-119, 136 N.M. 411, 99 P.3d 232.

This section and Section 37-1-11 NMSA 1978 contrasted. — Section 37-1-11 NMSA 1978 would allow the bringing of suit within one year from the date of death of an incompetent, provided the injury sued upon did not result in death, but if suit is brought under the Wrongful Death Act, the action must be commenced within three years of the accrual of the cause of the action. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149 (decided prior to 1961 amendment).

This section and Section 37-1-11 NMSA 1978 contrasted. — Section 37-1-11 NMSA 1978 would allow the bringing of suit within one year from the date of death of an incompetent, provided the injury sued upon did not result in death, but if suit is brought under the Wrongful Death Act [41-2-1 to 41-2-4 NMSA 1978], the action must be commenced within three years of the accrual of the cause of the action. Kilkenny v. Kenney, 1961-NMSC-019, 68 N.M. 266, 361 P.2d 149 (decided prior to 1961 amendment).

Inapplicability of statute permitting continuation. — Provision of 37-1-14 NMSA 1978 permitting continuation after failure of first action is inapplicable to this section. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Estoppel. — Estoppel cannot successfully be asserted to lengthen the period for recovery under this section, since this cause of action is created by statute. Perry v. Staver, 1970-NMCA-096, 81 N.M. 766, 473 P.2d 380.

Where appeal does not lie. — In a wrongful death action, appeal does not lie from an order of the court which does not dispose of the merits of the case, but merely overrules a motion to strike out part of defendant's answer setting up certain defenses, such as statute of limitations, fellow servant rule and joint venture. Burns v. Fleming, 1944-NMSC-006, 48 N.M. 40, 145 P.2d 861.

Law reviews. — For survey, "The Statute of Limitations in Medical Malpractice Actions," see 6 N.M.L. Rev. 271 (1976).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 22A Am. Jur. 2d Death § 56 et seq.

Time of bringing action, provision of death statute as to, as condition of right of action or mere statute of limitations, 67 A.L.R. 1070.

Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048.

Exceptions attaching to limitation prescribed by death statutes or survival statues allowing recovery of damages for death, 132 A.L.R. 292.

Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779.

Limitation applicable to action for personal injury as affecting action for death resulting from injury, 167 A.L.R. 894.

Application and limits of rule that death of person liable does not interrupt running of statute of limitations, 174 A.L.R. 1423.

Estoppel to rely on statute of limitations, 24 A.L.R.2d 1413.

Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933.

Validity of release of prospective right to wrongful death action, 92 A.L.R.3d 1232.

Time of discovery as affecting running of statute of limitations in wrongful death action, 49 A.L.R.4th 972.

Wrongful death: surviving parent's minority as tolling limitation period on suit for child's wrongful death, 54 A.L.R.4th 362.

Medical malpractice: statute of limitations in wrongful death action based on medical malpractice, 70 A.L.R.4th 535.

Fraudulent concealment of cause of action for wrongful death as affecting period of limitations, 88 A.L.R.4th 851.

25 C.J.S. Death § 53; 54 C.J.S. Limitation of Actions § 73.