Bazzano v. Rockwell Intern. Corp.

• Decision Date: 25 July 1978
• Docket Number: No. 77-1907,77-1907
• Citation: 579 F.2d 465
• Parties: Gail L. BAZZANO, Individually and as surviving spouse of Gaetano Bazzano, Deceased, Plaintiff, Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 465

579 F.2d 465

Gail L. BAZZANO, Individually and as surviving spouse of Gaetano Bazzano, Deceased, Plaintiff, Appellant, v. ROCKWELL INTERNATIONAL CORPORATION, Defendant, Appellee.

No. 77-1907.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1978.

Decided June 28, 1978.

Rehearing and Rehearing En Banc Denied July 25, 1978.

Jerry Murphy, Clayton, Mo., for plaintiff, appellant.

John C. Shepherd (on brief) of Coburn, Croft, Shepherd, Herzog & Putzell, St. Louis, Mo., argued, for defendant, appellee; Joseph A. Kral, III, St. Louis, Mo., on brief.

Before GIBSON, Chief Judge, HEANEY, Circuit Judge, and MacLAUGHLIN, District Judge. ^*

MacLAUGHLIN, District Judge.

Gaetano Bazzano died in the crash of a private aircraft in Missouri on December 29, 1975. His wife, Gail, and his children and parents survived him. Gail Bazzano brought this action to recover as surviving spouse for her husband's wrongful death and for his pain and suffering, and for property damage for the loss of the airplane. Recovery is premised on strict liability and negligence; plaintiff attributes the cause of the crash to an allegedly defective flight director system manufactured by Collins Radio Company in 1961. Jurisdiction is founded on diversity of citizenship. The United States District Court for the Eastern District of Missouri granted summary judgment for defendant, and plaintiff appeals. After careful consideration of the applicable law, we reverse.

On November 14, 1973, Collins Radio Co., the manufacturer of the flight director system in question, merged into Rockwell International Corporation (Rockwell). Rockwell assumed all the debts and liabilities of Collins Radio Co. Meanwhile, Collins International, Inc. had been incorporated in Iowa by one J. P. Riley on May 23, 1973. Two weeks after the merger of Collins Radio Co. and Rockwell, Collins International, Inc. changed its name to Collins Radio Co. Besides its name, the company shared with the defunct manufacturing concern the same state of incorporation and the same address.

On November 29, 1976, Daniel Donnelly, an attorney for plaintiff, received a copy of the merger agreement between Collins Radio Co. and Rockwell through discovery in another action. Thereafter, he drafted a complaint naming Rockwell as the defendant. On December 23, 1976, Donnelly telephoned James FitzSimons, a partner in the New York law firm of Mendes & Mount, which had frequently represented Rockwell in litigation involving aircraft. His purpose was to discuss the lawsuit about to be filed. Donnelly affied:

In my telephone conversation with Mr. FitzSimons, I advised him that I represented the estate of Dr. Bazzano who had been killed in the crash of an Aero Commander in the vicinity of St. Louis, Missouri on December 29, 1975, and that the aircraft had been equipped with a Collins FD-107 flight director system which I characterized as one of the old flight director systems. I advised Mr. FitzSimons that suit was being instituted against Rockwell International Corporation arising out of this crash and that it was my preference to commence the suit in the Southern District of New York. Mr. FitzSimons replied that Rockwell International would have had nothing to do with this matter, and he then admonished me to proceed in a proper manner.

FitzSimons confirmed Donnelly's recollection in large part, with the following exception:

I advised Mr. Donnelly that neither I, nor my firm, nor Rockwell, would have anything to do with his proposal to keep the litigation in New York; and that he should proceed in accordance with the established Federal Rules of Civil Procedure.

At no time did I say to Mr. Donnelly that Rockwell, or for that matter, Collins, would have had nothing to do with the manufacture of a Collins FD-107 flight director system.

Donnelly took FitzSimons' remark, however, to indicate that the Collins Radio Co. which had merged into Rockwell was not the manufacturer of the flight director system. He redrafted the complaint, substituting Collins Radio Co. (originally incorporated as Collins International, Inc.) as the defendant. On December 27, 1976, Donnelly's secretary confirmed the existence of Collins Radio Co. with the Secretary of State of Iowa, and arranged for service on its designated agent, J. P. Riley. The complaint was filed and the action commenced that day. Process was served on Riley on January 6, 1977. At that time, Riley, besides being designated agent for Collins Radio Co., was Assistant General Counsel for Rockwell.

On February 28, 1977, Collins Radio Co. moved for summary judgment. Plaintiff then realized her error, and moved for and was granted leave to amend her complaint. Substituting Rockwell as the sole defendant, she filed the amended complaint on May 25, 1977, and achieved service on June 1, 1977. Rockwell then moved to dismiss. Because it considered matter beyond the pleadings, the district court treated the motion as a motion for summary judgment and dismissed the action. The court held that plaintiff's capacity to maintain an action for wrongful death under Missouri law expired before Rockwell was served with the amended complaint. It further held that the amended complaint substituting Rockwell as the defendant did not relate back to the date of filing of the original complaint under Fed.R.Civ.P. 15(c). Bazzano v. Rockwell Int'l Corp., 439 F.Supp. 1167 (E.D.Mo.1977). Since we find that plaintiff had standing under Missouri law to prosecute suit against Rockwell and timely did so, we reverse, and do not reach the issue whether the amended complaint related back.

Mo.Rev.Stat. 537.080 prescribes who is a proper plaintiff to prosecute an action for wrongful death:

Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, which damages may be sued for and recovered

(1) By the spouse or minor children, natural or adopted, of the deceased, either jointly or severally; provided, that in any such action the petitioner shall satisfy the court that he has diligently attempted to notify all parties having a cause of action under this subdivision; and provided, further, that only one action may be brought under this subdivision against any one defendant; or

(2) If there be no spouse or minor children or if the spouse or minor children fail to sue within one year after such death, or if the deceased be a minor and unmarried, then by the father and mother, natural or adoptive, who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor; or if the surviving parents are unable or decline or refuse to join in the suit, then either parent may bring and maintain the action in his or her name alone, for the use and benefit of both such parents; or

The statute confers standing first upon the surviving spouse and minor children. If they fail to sue within one year after the death, then the parents of the decedent may bring suit. Appropriation of the cause of action by the spouse and children may occur by means other than initiation of suit. E. g., Spencer v. Bradley, 351 S.W.2d 202 (Mo.1961) (holding husband appropriated action by releasing several potential defendants within statutory period). But if the spouse and children fail to appropriate the action within one year after it accrues, they are no longer proper plaintiffs. Edmonsond v. Lakeside Hospital Ass'n, 562 S.W.2d 361 (Mo.1978) (en banc). Section 537.080 does not serve as a statute of limitations, as the district court recognized (439 F.Supp. at 1171), but instead serves to denominate those who have standing to sue for wrongful death. Mo.Rev.Stat. 537.100 provides a two-year period of limitations for such actions.

A wrongful death action is indivisible. Once it is appropriated by an individual with standing, the order of suit prescribed by section 537.080 is no longer material, unless the individual appropriating the action dies before the two-year period of limitations runs and has not completed enforcement. Cummins v. Kansas City Public Service Co., 334 Mo. 672, 66 S.W.2d 920 (1933) (en banc). ¹ The district court held that plaintiff failed to appropriate the action when she sued Collins Radio Co., because suit was brought against the wrong defendant: "Plaintiff's original complaint was timely filed on December 27, 1976, but plaintiff's action was against the wrong party. Thereafter, plaintiff amended her complaint, naming the proper defendant. However, in the meantime plaintiff's capacity to bring this action was extinguished by the terms of Mo.Rev.Stat. 537.080." 439 F.Supp. at 1171. Because suit was not instituted against the proper defendant within the one-year period during which plaintiff had standing, the district court reasoned, standing to sue passed to the parents of the decedent.

Venerable Missouri case law holds to the contrary. In Packard v. Hannibal & St. J. R. Co., 181 Mo. 421, 80 S.W. 951 (1904), the surviving minor children of a decedent brought an action for his wrongful death. Already pending was a suit their mother had initiated against a different railroad company for her husband's wrongful death. The suit by the widow ended in a directed verdict for the defendant. The children...