King v. National Spa and Pool Institute, Inc.

• Decision Date: 04 September 1992
• Citation: 607 So.2d 1241
• Parties: Barbara Bryant KING, as Administratrix of the Estate of Kenneth A. Halpern, Deceased v. NATIONAL SPA AND POOL INSTITUTE, INC., et al. 1910620.
• Court: Alabama Supreme Court

Page 1241

607 So.2d 1241

Barbara Bryant KING, as Administratrix of the Estate of Kenneth A. Halpern, Deceased v. NATIONAL SPA AND POOL INSTITUTE, INC., et al.

1910620.

Supreme Court of Alabama.

Sept. 4, 1992.

As Modified on Denial of Rehearing Oct. 16, 1992.

Jere L. Beasley and Kenneth J. Mendelsohn of Beasley, Wilson, Allen, Mendelsohn, Jemison & James, P.C., Montgomery, for appellant Barbara Bryant King.

Geary A. Gaston and William W. Watts III of Reams, Philips, Brooks, Schell, Gaston & Hudson, P.C., Mobile, for appellee National Spa and Pool Institute, Inc.

Douglas L. Brown and William Austin Mulherin III of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, Mobile, for appellee Spartan-Aqualon Corp.

Peter V. Sintz and William A. Mudd of Sintz, Campbell, Duke & Taylor, Mobile, for appellees S.R. Smith and S.R. Smith Co., Inc.

HORNSBY, Chief Justice.

This is the third appeal of this case. In each of the earlier appeals, this Court reversed a summary judgment for one of the defendants. King v. National Spa & Pool Institute, Inc., 570 So.2d 612 (Ala.1990); King v. S.R. Smith, Inc., 578 So.2d 1285 (Ala.1991). This appeal presents the issue whether King--the mother of the original plaintiff, Kenneth Halpern, and his properly substituted personal representative--could amend the original complaint alleging personal injury to add a wrongful death claim after Halpern died from injuries alleged in the complaint. This issue requires this Court to review the law of abatement most recently applied in Elam v. Illinois Central Gulf R.R., 496 So.2d 740 (Ala.1986). We reverse and remand the cause for further proceedings.

The underlying facts were set out in the first appeal of this case as follows:

"In the fall of 1987, Ms. King's intestate [Halpern] purchased a house and a lot in Mobile, Alabama. There was an in-ground, vinyl-lined swimming pool that had been constructed in 1981 by Southern Leisure Pool and Supply Corporation ('Southern Leisure'), a defendant not involved in this appeal. The evidence before the trial court showed that the swimming pool met the trade association's [NSPI's] 'Suggested Minimum Standards for Residential Swimming Pools' ('standards') and was of the size, shape, and dimensions that the trade association prescribed for allowing the type of diving board that had been installed with the pool. In May 1988, Ms. King's intestate dove into the pool from the diving board. He did not slip, trip, or otherwise go into the pool unintentionally. It can reasonably be inferred that Ms. King's intestate hit his head on the bottom or side of the pool and sustained a broken neck and permanent quadriplegia. Approximately eight and one-half months later, he died of pneumonia secondary to quadriplegia."

570 So.2d at 613.

After Halpern's death, King was substituted as his personal representative. King then amended the original complaint to add a wrongful death claim under Ala.Code 1975, § 6-5-410, against all defendants. The case continued in litigation for more than two years after this amendment, with discovery, settlement with other defendants, and the appeals noted above proceeding in the usual manner. The defendants now in the case are National Spa and Pool Institute, Inc. (NSPI), S.R. Smith, Inc., and Spartan-Aqualon Corporation. Of particular note in the litigation process were various admissions among the parties during November 1991, that established that the injuries Halpern sustained in the swimming pool accident proximately caused his death.

In January 1992, the defendants again moved for a summary judgment. For the first time, the defendants argued that the original personal injury action had abated upon Halpern's death. In its order of January 22, 1992, the trial court held that Halpern's death extinguished his original complaint so that the action did not survive in favor of King. The trial court held that King's sole remedy was by the wrongful death statute. Further, the trial court ruled that under Elam, supra, King was required to file a new and separate complaint alleging wrongful death. Accordingly, the trial court entered a summary judgment for the defendants.

In this case, given the rule in Elam, King has no recourse to the wrongful death statute, Ala.Code 1975, § 6-5-410. Halpern died on February 10, 1989. The two-year limitations period for a wrongful death claim had expired nearly one year before the trial court entered the summary judgment. The effect of the rule in Elam is to prevent King from making any further claim on behalf of her son.

We recognize that the trial court properly applied the rule in Elam stemming from the old common law rules of pleading and abatement. We must determine, however, whether those rules should continue to be the law in this state.

The Elam Case and Its Predecessors

In Elam, the original plaintiff sued the defendant railroad based on personal injuries; the plaintiff later died as a result of those injuries. The plaintiff's daughter, Elam, as personal representative, was substituted as plaintiff; she amended the complaint to add a wrongful death claim. The trial court ruled that Elam was prosecuting two separate wrongful death actions at the same time and dismissed Elam's second action. On appeal the Court answered "yes" to the following question:

"Does the death of a sole plaintiff in a tort action for personal injury extinguish that action, so that any further prosecution must be by a new and separate action for wrongful death filed by the representative of the deceased plaintiff's estate?"

496 So.2d at 741-42.

The holding in Elam relies on the older case of Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942). ¹ Parker supports the rule in Elam. In Parker, the administratrix sought, after the original plaintiff's death, to be substituted as plaintiff and to amend the original personal injury complaint to include a claim under the Homicide Act. The Homicide Act is the predecessor to Ala.Code 1975, § 6-5-410. The Court in Parker held specifically that the administratrix could not amend the original personal injury action to add a claim under the Homicide Act.

In reaching its holding, the Court in Parker relied on the analysis of the Homicide Act and the statute providing for survival of personal injury actions set out in two older cases, Bruce v. Collier, 221 Ala. 22, 127 So. 553 (1930), and Ex Parte Adams, 216 Ala. 241, 113 So. 235 (1927), overruled, see discussion infra. The survival statute referenced in Bruce and Adams was the predecessor to Ala.Code 1975, § 6-5-462. That statute provided, as does § 6-5-462, that personal claims on which an action had been filed would survive in favor or the personal representative, except for claims involving injuries to the reputation. These survival statutes do not reference the Homicide Act or the present Wrongful Death Act.

Parker, Bruce, and Adams all agreed as to the meaning and application of the Homicide Act:

"Our homicide act is a death statute, a punitive statute to prevent homicides. It creates a new and distinct cause of action, unknown at common law. The cause of action comes into being only upon death from wrongful act."

Parker, supra, 243 Ala. at 350, 10 So.2d at 15. This discussion applies equally well to the present Wrongful Death Act, Ala.Code 1975, § 6-5-410, and that Act remains the sole right of action for death under our law. Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986); Mattison v. Kirk, 497 So.2d 120 (Ala.1986).

In examining the basis of Parker and its application of the Homicide Act in the context of the survival statute, we turn first to the decision in Adams. The Court in Adams considered a plea in abatement under common law rules of pleading. The original complaint alleged unlawful arrest and imprisonment, and a later complaint by the administrator stated a claim under the Homicide Act based on the allegation that the injury inflicted by the unlawful arrest resulted in the original plaintiff's death. The Court in Adams began its consideration from the standpoint of strict construction of pleadings under common law and Ala.Code 1923, § 5657. That section disallowed the maintenance of two actions at the same time by the same party on the same cause of action.

The Adams Court reasoned that because the original plaintiff and her later administrator had a common interest and were asserting claims, first personal injury and then homicide, against the same party based on the same alleged wrongful acts, the two actions were identical for the purposes of the statute. The Court held, therefore, that the pendency of the first suit was a defense against the prosecution of the second suit based on the Homicide Act. Accordingly, the Court ruled that the plea in abatement supported the dismissal of the later suit. Essentially, the court in Adams held that an action based on personal injury that resulted in death was the same cause of action that underlay an action under the Homicide Act. The Court's rationale was that both the personal injury action and the Homicide Act action were based on the same tortious act.

The idea that the cause of action was the same, first expressed in Adams, was a key consideration in Bruce. In Bruce, the Court considered the crucial question:

"Does an action for personal injuries, begun by the decedent while in life, survive to his personal representative if death results from the same tort, giving rise to an action under the homicide act?"

221 Ala. at 23, 127 So. at 554. Given the analysis of the Homicide Act in Adams, the Court noted that (1) originally at common law, and even in early statutes providing for survival of some actions, actions for personal injury did not survive the death of the plaintiff; and (2) the legislature later amended the survival statute to allow for survival of personal injury actions.

The Court in Bruce noted that the Homicide Act was in effect before the survival statute was amended to permit...