Trane US, Inc. et al. v. Pittman
| Docket Number: | 2008-IA-01584-SCT Linked Case(s): 2008-M-01584-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-14-2010 Opinion Author: Waller, C.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Wrongful death - Nullity of complaint - Substitution of party - M.R.C.P. 17(a) - Amended complaint - Survival claims - Statute of limitations - Waiver of defense Judge(s) Concurring: Carlson, P.J., Dickinson, Lamar and Pierce, JJ. Non Participating Judge(s): Randolph, J. Dissenting Author : Graves, P.J., Dissents With Separate Written Opinion Dissent Joined By : Kitchens and Chandler, JJ. Procedural History: Bench Trial Nature of the Case: CIVIL - OTHER |
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| Trial Court: |
Date of Trial Judgment: 08-29-2008 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: The trial court denied Garlock's motion for summary judgment and the Gardner-Trane Appellants' motion fo dismiss and motion for protective order. The trial court also denied Garlock's motion for reconsideration. Case Number: 251-03-26CIV |
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| Consolidated: 2008-IA-01572-SCT Garlock Sealing Technologies, LLC, Successor by Merger to Garlock, Inc., Trane US Inc., Formerly Known as American Standard, Inc., Rapid-American Corporation v. Mary Pittman, Executrix of the Estate of Lonnie Pittman, Deceased; Hinds Circuit Court 1st District; LC Case #: 251-03-26CIV; Ruling Date: 08/29/2008; Ruling Judge: Winston Kidd 2008-IA-01599-SCT Gardner Denver, Inc., General Electric Company, The Gorman-Rupp Company, Erroneously Named and Served as The Gorman-Rupp Company, Individually and as Successor in Interest to C. H. Wheeler Mfg. Co., Patterson Pump Company, IPT Pumps, and Economy Pumps, Dorr-Oliver, Inc., Keeler/Dorr-Oliver, Erroneously Sued as Dorr-Oliver, Inc., Sulzer Pumps (US), Inc., Warren Pumps, Inc., Warren-Rupp, Inc., and Yuba Heat Transfer LLC., Rapid- American Corporation v. Mary Pittman, Executrix of the Estate of Lonnie Pittman, Deceased; Hinds Circuit Court 1st District; LC Case #: 251-03-26CIV; Ruling Date: 08/29/2008; Ruling Judge: Winston Kidd | ||
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Trane US, Inc. Formerly Known as American Standard, Inc., Flowserve US, Inc., as Successor to Rockwell Manufacturing Co., Emerson Electric Co., Garlock Sealing Technologies, LLC, Successor by Merger to Garlock, Inc., Sepco Corporation and Furon Company |
T. HUNT COLE, JR.
JAMES GORDON HOUSE, III
LAURIN DAVIS McGUFFEE
MARY WINTER VAN SLYKE
RONALD G. PERESICH
MICHAEL E. WHITEHEAD
TIMOTHY HUDSON JONES
CLAIRE W. KETNER
JOHN ERNEST WADE, JR.
SHARON F. BRIDGES
WILLIAM BUCKLEY STEWART, SR.
ROBERT P. THOMPSON
DAWN E. FULCE
THOMAS W. TYNER
WALTER W. DUKES |
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| Appellee: | Mary Pittman as the Executrix of the Estate of Lonnie Pittman | JOHN TIMOTHY GIVENS TIMOTHY W. PORTER PATRICK C. MALOUF | ||
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| Topic: | Wrongful death - Nullity of complaint - Substitution of party - M.R.C.P. 17(a) - Amended complaint - Survival claims - Statute of limitations - Waiver of defense |
| Summary of the Facts: | In December 2002, Lonnie Pittman filed an asbestos suit against a number of entities. It was later discovered that Lonnie had died long before the suit was ever filed. Mary Pittman, Lonnie’s widow, attempted to substitute herself as the proper plaintiff. Later, in August 2005, Mary filed an amended complaint as executrix of Lonnie’s estate. Gardner Denver, Inc., General Electric Company, Gorman-Rupp Co., Dorr-Oliver, Inc., Keeler/Dorr-Oliver, erroneously sued as Dorr-Oliver, Inc., Sulzer Pumps (US), Inc., Warren Pumps, Inc., Warren-Rupp, Inc., and Yuba Heat Transfer, Inc., filed a motion to dismiss and motion for protective order. Trane US, Inc., formerly known as American Standard, Inc., and Emerson Electric Co., later joined this motion, as well. The Gardner-Trane Appellants asserted that the substitution of Mary was improper under M.R.C.P. 25, and that the entire matter should be dismissed because the statute of limitations had expired. Very little action took place for more than twenty months until May 31, 2007, when Mary noticed a deposition. On June 6, 2007, some twenty and a half months after filing its answer to Mary’s amended complaint, Garlock Sealing Technologies, LLC, filed a motion for summary judgment. A hearing was held in August 2007 on Garlock’s Motion for Summary Judgment and on the Gardner-Trane Appellants’ Motion to Dismiss and Motion for Protective Order. The circuit court denied both parties’ motions. It denied Garlock’s Motion for Reconsideration, as well. After a motion for trial setting was filed, Trane filed a motion to dismiss on grounds that the circuit court lacked subject matter jurisdiction and that the statute of limitations had expired. Trane alleged that, at the time Mary filed the 2005 amended complaint, she had not taken the oath of office required by law, that letters testamentary had not been issued, that she had in fact abandoned the probate of Lonnie’s will, and that the chancery clerk had dismissed Lonnie’s estate matter due to Mary’s failure to prosecute. All Appellants joined Trane’s motion to dismiss. A few months later, Garlock filed its second motion for summary judgment. Mary responded by filing a motion in limine and motion to strike. She argued that Garlock’s second motion for summary judgment was a mere repetition of issues previously considered and disposed of by the circuit court. The circuit court denied Trane’s and Garlock’s motions. It also denied Mary’s motion to strike. The Supreme Court granted an interlocutory appeal. |
| Summary of Opinion Analysis: | Issue 1: Nullity of complaint Four months or so after the suggestion of death was filed, several Appellants sought dismissal on the basis that Lonnie had predeceased the filing of the suit. Appellants continue to argue vehemently that the initial, December 2002, complaint was a nullity because Lonnie predeceased its filing. In every action there must be a real plaintiff who is a person in law and is possessed of a legal entity or existence as a natural, artificial, or quasi-artificial person, and a suit brought in the name of that which is not a legal entity is a mere nullity. Thus, the December 2002 complaint was null and void. Issue 2: Substitution of party Mary argues that M.R.C.P. 17(a) allows her to be substituted as a party. Nothing in Rule 17(a) requires that the original plaintiff have the capacity to sue. Yet capacity is not really the issue in a case like the present one. “Capacity to sue” relates to a party’s right to litigate. It has reference to legal disability, such as infancy or mental incompetency. The concern in this case is a distinct but closely related concept: legal existence. Legal existence means, at a minimum, that the individual suing is alive. Even conceding that Rule 17(a) does not speak to whether the original plaintiff must have capacity to sue, it necessarily presupposes that the plaintiff filing suit legally exists. The rule provides that “[e]very action shall be prosecuted in name of the real party in interest,” and that “[n]o action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection . . . For substitution[] of the real party in interest . . . .” The rule thus takes for granted or presumes that a valid “action” exists. But, no “action” exists where the original complaint is filed by a dead person. Such complaints are null and void from the outset. In short, without a live person initiating suit, there can be no action; and without an action, substitution cannot be had under Rule 17(a). Rule 17(a) does not allow Mary to be substituted as a party. Because the December 2002 complaint was a nullity, a valid action was never commenced. And where a valid action does not exist, Rule 17(a) does not apply. Issue 3: Amended complaint Appellants argue that Mary lacked standing to file the August 2005 amended complaint because she was not the duly-qualified executrix of Lonnie’s estate at the time she filed the complaint. They contend, primarily, that Mary never took the oath of office that is required before letters testamentary can be issued. There is no need to discuss the series of mishaps surrounding Lonnie’s estate matter, or whether Mary was duly qualified as executrix when she filed suit. Under Mississippi law, Mary had standing to file suit regardless. In her 2005 amended complaint, Mary sought damages for injuries that Lonnie had suffered as a result of his exposure to asbestos. Her claims, therefore, are best characterized as survival claims rather than true wrongful-death claims. Survival claims are those that seek to recover damages that the decedent could have recovered had death not ensued. Where the same wrongful conduct causes both personal injury and death—as is alleged here—once death occurs, the personal-injury claims are embraced in the “one suit” for wrongful death. In such cases, once the person dies, the survival claims are not actionable by the estate under the survival statute. Once Lonnie died, any survival claims were subsumed within the “one suit” for wrongful death. Thus, Mary’s 2005 amended complaint is construed as having been brought under the wrongful-death statute. Section 11-7-13 allows a suit to be brought by the personal representative, certain listed relatives, and “interested parties.” There is no dispute in this case that Mary is Lonnie’s widow. A decedent’s widow is one of the “listed relatives” enumerated in section 11-7-13. Consequently, the wrongful-death statue conferred on Mary standing to bring the 2005 amended complaint regardless of whether she had been formally appointed as executrix of Lonnie’s estate when the 2005 amended complaint was filed. Issue 4: Waiver Mary argues that the Appellants have waived their statute-of-limitations defense. The parties here do not dispute that the three-year statute of limitations applies, nor do they argue about when the statute of limitations began to run. The statute of limitations began to run on the date of Lonnie’s death, March 11, 2001. Based on that date, the statute of limitations expired on March 11, 2004. This would put Mary’s 2005 amended complaint well outside the statute of limitations, unless the Appellants have waived this as a defense. Mary argues that Appellants have done so by waiting too long to assert and pursue the defense, while simultaneously actively participating in the litigation. A defendant’s failure to timely and reasonably raise and pursue the enforcement of any affirmative defense or other affirmative matter or right which would serve to terminate or stay the litigation, coupled with active participation in the litigation process, will ordinarily serve as a waiver. “Pursuit” means more than simply asserting the affirmative defense in a pleading. A defendant must bring the affirmative defense to the court’s attention by motion and request a hearing. Each of the Appellants in this case raised the statute of limitations as a defense in its answer to Mary’s 2005 amended complaint. But their actions, or lack thereof, following their answers create an issue of whether they waived the defense. Each of the Appellants waited almost two years or longer to pursue the statute-of-limitations defense. But a lengthy delay typically is not enough to constitute waiver of an affirmative defense. Ordinarily, there must be a substantial and unreasonable delay in pursuing the right plus active participation in the litigation before waiver will be found. Garlock’s actions following the 2005 amended complaint show that it did in fact participate in the litigation, but its participation falls short of what previously has been held to constitute waiver of an affirmative defense. Garlock’s attorneys entered into an agreed order allowing Mary to file the 2005 amended complaint. Then, on October 21, 2005, Garlock filed designations of experts, fact witnesses, and exhibits. And on June 15, 2006, Garlock filed a motion to compel and notice of hearing. One month later, Garlock cancelled this hearing by filing a notice of cancellation. Further, Garlock’s actions must be considered in context. This was a mass-tort case involving hundreds of defendants that was still in its early stages. No trial date had been set and no witnesses were deposed during the lengthy delay. The bulk of activity between the 2005 amended complaint and Garlock’s first motion for summary judgment involved the dismissal of several defendants. Thus the statute-of-limitations defense has not been waived. |
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