Clark Sand Co., Inc. v. Kelly
| Docket Number: | 2008-IA-01437-SCT Linked Case(s): 2008-IA-01437-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 02-25-2010 Opinion Author: Waller, C.J. Holding: Reversed and rendered. |
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| Additional Case Information: |
Topic: Wrongful death - Standing - Section 15-1-69 - Section 11-7-13 - Interested party Judge(s) Concurring: Carlson, P.J., Randolph, Lamar and Pierce, JJ. Dissenting Author : Dickinson, J., with separate written opinion. Dissent Joined By : Kitchens and Chandler, JJ. Dissenting Author : Kitchens, J. Dissents With Separate Written Opinion Joined by Graves, P.J.; Dickinson and Chandler, JJ., Join In Part. Procedural History: Summary Judgment; Interlocutory Appeal Nature of the Case: CIVIL - WRONGFUL DEATH; Interlocutory Appeal |
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| Trial Court: |
Date of Trial Judgment: 08-11-2008 Appealed from: WARREN COUNTY CIRCUIT COURT Judge: Isadore Patrick Disposition: The trial court denied Clark Sand Company's motion for summary judgment and found that Ruby Kelly had standing to bring a wrongful death action. Case Number: 07,0076-CI |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Clark Sand Company, Inc., Clemco Industries Corporation, Pangborn Corporation, P. K. Lindsay Company, Southern Silica of Louisiana, Inc., Mississippi Valley Silica Company, Inc., and Pulmosan Safety Equipment Corporation |
FRED KRUTZ, III, EDWIN S. GAULT, JR., JENNIFER J. SKIPPER, CLYDE L. NICHOLS, III, BLAYNE T. INGRAM |
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| Appellee: | Ruby C. Kelly a/k/a Ruby Kelley, Executrix of the Estate of David C. Bozeman, Deceased and on Behalf of all Wrongful Death Beneficiaries of David C. Bozeman, Deceased | R. ALLEN SMITH, JR., DAVID NEIL McCARTY | ||
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| Topic: | Wrongful death - Standing - Section 15-1-69 - Section 11-7-13 - Interested party |
| Summary of the Facts: | David Bozeman was diagnosed with lung cancer caused by silicosis. He joined with fifty-four other plaintiffs in a mass-tort, personal-injury suit against various silica manufacturers and distributors, including Clark Sand Company. The complaint included claims for the decedents’ wrongful deaths in favor of their purported beneficiaries. The suit was filed in the Circuit Court of Holmes County. Bozeman died while the suit was pending. Ruby Kelley, Bozeman’s live-in girlfriend, was listed as the “informant” on Bozeman’s death certificate. The certificate gave Bozeman’s marital status as “widowed,” and the space for “surviving spouse” was left blank. Kelley was named executrix in Bozeman’s will, which bequeathed all of Bozeman’s property except his pick-up truck to her. Bozeman also was survived by two sons, one of whom was mentioned in his will. After Bozeman’s death, Kelley did not amend the complaint or move the trial court to substitute her as the real party in interest. After the case was dismissed without prejudice, Kelley filed an action in the Circuit Court of Warren County, stating that the suit was merely a continuation of Bozeman’s previous claim. The complaint included claims for Bozeman’s personal injuries caused by exposure to silica and for his wrongful death, and Kelley specifically sought “All Wrongful Death Damages and Survival Damages” in connection with Bozeman’s death. Clark Sand filed two motions for summary judgment. The court denied both motions. The Supreme Court granted Clark Sand’s petition for interlocutory appeal. |
| Summary of Opinion Analysis: | Both the savings statute, section 15-1-69, and the wrongful-death statute, section 11-7-13, permit the action to be brought by the decedent’s personal representative. For a plaintiff to have standing, the plaintiff must have suffered an injury in fact – an invasion of a legally protected interest which is concrete and particularized and actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of – the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Pursuant to section 11-7-13, a wrongful-death action may be brought by the personal representative on behalf of the estate and all other persons entitled to recover; by one of the wrongful death beneficiaries on behalf of all persons entitled to recover; or by all interested parties. To have standing as a personal representative to bring a wrongful-death action, the plaintiff must be formally appointed as such prior to filing the complaint for wrongful death. In this case, it is undisputed that, at the time she filed the suit, Kelley had not yet been formally appointed executrix of Bozeman’s estate. Therefore, she did not have standing as Bozeman’s personal representative to bring this action at that time. Standing is to be determined as of the commencement of suit. Kelley refers to herself as Bozeman’s widow and thus argues that she had standing as such to bring this suit as a listed relative in the statute. Listed relatives include the decedent’s widow or children or husband or father or mother, or sister, or brother. Bozeman and Kelley never underwent a formal marriage ceremony. Also, Bozeman disclaimed any marriage in his sworn deposition, taken in 2004. Further, both Bozeman and his attorney referred to Kelley as Bozeman’s girlfriend at the deposition. Finally, Bozeman’s death certificate, to which Kelley was the “informant,” listed his marital status as “widowed,” not “married,” and the space for “surviving spouse” was left blank. While Kelley did procure an order from an Alabama circuit court finding that she and Bozeman had maintained a common-law marriage, she did so only after Bozeman’s death and after Clark Sand had petitioned for interlocutory appeal. Standing is to be determined as of the commencement of suit. With regard to the third category in the statute, parties who have a pecuniary interest in the subject of the contest, and under all of the authorities the heirs at law who would take the property of the deceased in the absence of a valid will are interested parties. An interested party is a person who has a relationship to the decedent that is recognized by law, and who therefore has suffered legally recognized injury from the wrongful deprivation of the decedent’s life at the defendant’s hands. Such a person thus may claim a genuine right of recovery from the decedent’s wrongful-death action by seeking damages for his or her injuries, and that right makes the claimant’s interest in the action legally sufficient to make him or her an “interested party” under the wrongful-death statute Kelley does not qualify as an interested party under the wrongful-death statute. She would not be entitled to inherit from Bozeman under our laws of intestate descent and distribution, so she is not a statutory heir of Bozeman and could never be formally adjudicated as an heir-at-law by the chancery court. Notwithstanding the fact that Kelley may have been Bozeman’s live-in girlfriend, she was not his wife. And she had no other relationship to Bozeman, legally speaking, to justify conferring upon her a right of recovery from the wrongful-death action or to give her a legally sufficient interest in the suit. Thus, at the time she brought suit, Kelley did not qualify as an interested party for the purpose of standing to commence an action for Bozeman’s death under the wrongful-death statute. |
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