Brewer v. Poole
| Decision Date | 21 April 2005 |
| Docket Number | No. 04-671.,04-671. |
| Citation | 207 S.W.3d 458 |
| Parties | Jeffrey Dean BREWER, Justin Ray Kelley, James Dwight Kelley, Daniel Joseph Brewer, Kaleigh Madison Brewer, Tommy Wayne Harberson, Treva J. Harberson, Becky Cecil, Karen Dugan, Appellants, v. Marvin L. POOLE, M.D., Earnest E. Serrano, M.D., Joseph P. McCarty, M.D., Holt Krock Clinic, Sparks Regional Medical Center, John Does 1-5, Appellees. |
| Court | Arkansas Supreme Court |
John M. Burnett, Albuquerque, NM; and Eubanks, Baker & Schulze, by: J.G. "Jerry" Schulze, Little Rock, for appellants.
Cox Law Firm, by: Walter B. Cox and James R. Estes, Fayetteville, for appellee Dr. Joseph McCarty.
Ledbetter, Cogbill, Arnold & Harrison, L.L.P., by: Charles R. Ledbetter, Fort Smith, for appellee Dr. Marvin L. Poole.
Appellants Jeffrey Dean Brewer, Justin Ryan Kelley, James Dwight Kelley, Daniel Joseph Brewer, Kaleigh Madison Brewer, Tommy Wayne Harberson, Treva J. Harberson, Becky Cecil, and Karen Dugan appeal from an order that dismissed their claims for the wrongful death of the deceased, Diann Brewer, against appellees Marvin Poole, M.D., and Joseph P. McCarty, M.D.1 On appeal, the appellants argue that the circuit court erred in finding that where no personal representative has been appointed, a wrongful-death suit must be filed with all the statutory beneficiaries joined as parties to the suit. They further argue that the circuit court deprived them of a substantial property right by retroactively applying this court's holding in Ramirez v. White County Circuit Court, 343 Ark. 372, 38 S.W.3d 298 (2001), to a cause of action that arose in 1997. Additionally, the appellants contend that the circuit court erred in refusing to allow their third-amended complaint to relate back to the date of the filing of the original complaint. Finally, the appellants argue that the rule requiring all heirs to file suit is not based on sound policy, and they urge this court to reconsider the Ramirez decision.
The court of appeals certified this case to this court. Our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(b)(1), (4), and (5). We find no error and, accordingly, we affirm.
Diann Brewer died on January 7, 1996, survived by her husband, three sons, a daughter, her parents, and two sisters. No estate was opened and no personal representative was named. In December 1997, Ms. Brewer's husband, children, and parents filed suit against the appellees, alleging wrongful-death due to medical malpractice. Ms. Brewer's two sisters, Becky Cecil and Karen Dugan, were not named as plaintiffs to the suit.
On February 15, 2002, defense counsel sent a Request for Admission of Fact to the plaintiff's attorney, asking for the plaintiffs to admit that the decedent was survived and remained survived by two sisters. The plaintiffs did not respond to the request. However, on March 25, 2002, the plaintiffs filed a third-amended complaint,2 adding Ms. Cecil and Ms. Dugan as plaintiffs.
On March 27, 2002, separate defendants Dr. Poole and Dr. McCarty filed a joint motion to dismiss the plaintiff's complaint, contending that neither of the decedent's surviving sisters were parties to the original and amended complaints filed prior to March 25, 2002; that Arkansas Code Annotated 16-62-102(b) requires a wrongful-death action to be brought by all of the heirs at law of the deceased person; and that by the time the third-amended complaint was filed naming the two sisters, the statute of limitations barred any action by the plaintiffs. The circuit court granted the motion to dismiss, and this appeal followed.
When reviewing a circuit court's order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. See id. Further, if there is any reasonable doubt as to the application of the statute of limitations, this court will resolve the question in favor of the complaint standing and against the challenge. State v. Diamond Lakes Oil Co., 347 Ark. 618, 66 S.W.3d 613 (2002).
Section 16-62-102 provides in part:
(a)(1) Whenever the death of a person or a viable fetus shall be caused by a wrongful act, neglect, or default and the act, neglect, or default is such as would have entitled the party injured to maintain an action and recover damages in respect thereof if death had not ensued, then and in every such case, the person or company or corporation that would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person or the viable fetus injured, and although the death may have been caused under such circumstances as amount in law to a felony.
(2) The cause of action created in this subsection shall survive the death of a person wrongfully causing the death of another and may be brought, maintained, or revived against the personal representatives of the person wrongfully causing the death of another.
(3) ...
(b) Every action shall be brought by and in the name of the personal representative of the deceased person. If there is no personal representative, then the action shall be brought by the heirs at law of the deceased person.
(c)(1) Every action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed. (2) If a nonsuit is suffered, the action shall be brought within one (1) year from the date of the nonsuit without regard to the date of the death of the person alleged to have been wrongfully killed.
(d) The beneficiaries of the action created in this section are:
(1) The surviving spouse, children, father, mother, brothers, and sisters of the deceased person;
(2) Persons, regardless of age, standing in loco parentis to the deceased person; and
(3) Persons, regardless of age, to whom the deceased stood in loco parentis at any time during the life of the deceased.
(e) ...
Ark.Code Ann. § 16-62-102 (emphasis added).
The appellants first argue that the circuit court erroneously determined that in wrongful-death actions, where there is no personal representative, plaintiffs must join all statutory beneficiaries. The appellants contend that, pursuant to the plain language of the statute, plaintiffs are required only to join all heirs at law and, when Ms. Brewer died leaving descendants, her sisters were not her heirs at law. Further, the appellants contend:
The Act clearly defines two different categories of survivors involved in a wrongful death action, "heirs at law" Ark.Code Ann. § 16-62-102(b) and "beneficiaries." Ark.Code Ann. § 16-62-102(d). They are not the same. Heirs are the persons who inherit under the table of descent, Ark.Code Ann. § 28-9-203(b). See also Black's Law Dictionary, 727 (s.v. heir). Under the table of descent, "the children of the intestate and the descendants of each child of the intestate who may have predeceased the intestate" are heirs. Ark. Code Ann. § 28-9-214(1). Only "if the intestate is survived by no descendant or parent" can a sibling be an heir. Ark. Code Ann. § 28-9-214(5). In creative writing it may be advisable to avoid repetition by using different words to mean the same thing. In statutory drafting, however, the use of different words to describe the identical concept would lead to confusion and uncertainty. When Diann Brewer died leaving descendants, her sisters were not heirs at law. * * *
On the other hand, the appellees contend that the court has construed the term "heirs at law" as used in § 16-62-102(b) to mean all of the beneficiaries of the wrongful-death suit as set out in § 16-62-102(d). The appellees' contention is well taken. In Davenport v. Lee, 348 Ark. 148, 159-60, 72 S.W.3d 85, 91 (2002), this court stated:
Pursuant to Ark.Code Ann. § 16-62-102(b) (1987), every wrongful-death action must be brought by and in the name of the personal representative. See also Brewer [v. Lacefield], 301 Ark. 358, 784 S.W.2d 156. The wrongful death code does not create an individual right in any beneficiary to bring suit. Id. (citing Cude v. Cude, 286 Ark. 383, 691 S.W.2d 866 (1985)). Moreover, where no personal representative has been appointed, a wrongful-death suit must be filed with all of the statutory beneficiaries joined as parties to the suit. Ramirez v. White Cty. Cir. Ct., 343 Ark. 372, 38 S.W.3d 298 (2001); Thompson v. Southern Lbr. Co., 113 Ark. 380, 168 S.W. 1068 (1914). This rule dates back to this court's decision in McBride v. Berman, 79 Ark. 62, 94 S.W. 913 (1906).
Davenport, supra; see also Andrews v. Air Evac EMS, Inc., 86 Ark.App. 161, 170 S.W.3d 303 (2004).
The appellants contend that a careful reading of Ramirez and Davenport shows that this court has not used the terms "heirs at law" and "beneficiaries" interchangeably. In support of this proposition, the appellants cite to Ramirez where we stated: Ramirez, 343 Ark. at 378, 38 S.W.3d at 301-02. The appellants assert that this statement in Ramirez does not mean that all heirs at law are always wrongful-death beneficiaries, or vice versa; rather, it just means that in the Ramirez case, as in many cases, the heirs at law will also be wrongful-death beneficiaries.
The appellants further assert that Davenport is not instructive on the issue of whether "beneficiaries" means "heirs at law" under the wrongful-death statute...
To continue reading
Request your trial
-
In re IFC Credit Corp.
...2, 949 N.E.2d 1097 (2011); Torrey v. Leesburg Regional Medical Center, 769 So.2d 1040, 1044–45 (Fla.2000); cf. Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458, 466 (2005). If so, the absence of jurisdiction could not be cured by amending the petition, as IFC had done the day after filing it. Ba......
-
Posey v. St. Bernard's Healthcare, Inc., 05-383.
...arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. See Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005). In Lane v. Lane, 295 Ark. 671, 752 S.W.2d 25 (1988), this court recognized the continuous-treatment doctrine, which tolls t......
-
Davis v. Parham
...injury arising after April 2, 1979, including wrongful-death and survival actions arising from the death of a patient. Brewer v. Poole, 362 Ark. 1, 207 S.W.3d 458 (2005) (citing Pastchol v. St. Paul Fire & Marine Ins. Co., 326 Ark. 140, 929 S.W.2d 713 Under the Medical Malpractice Act, a pl......
-
Quarles v. Courtyard Gardens Health & Rehab., LLC
...special administrator was of no consequence because Rule 17 does not apply to complaints that are ities, citing Brewer v. Poole, 362 Ark. 1, 15, 207 S.W.3d 458, 466 (2005) (“Where the original complaint is a ity, Rules 15 and 17 are inapplicable because the original complaint never existed.......