Buck v. City of Rainsville

• Decision Date: 09 November 1990
• Citation: 572 So.2d 419
• Parties: Paul Edward BUCK, as administrator of the estate of Marvin Edward Buck, deceased v. CITY OF RAINSVILLE. 89-739.
• Court: Alabama Supreme Court

Page 419

572 So.2d 419

Paul Edward BUCK, as administrator of the estate of Marvin Edward Buck, deceased v. CITY OF RAINSVILLE.

89-739.

Supreme Court of Alabama.

Nov. 9, 1990.

Steven G. Noles, Fort Payne, for appellant.

Terry Gillis of Kellett, Gillis & Kellett, Fort Payne, for appellee.

KENNEDY, Justice.

On September 1, 1987, Marvin Edward Buck was a passenger in a vehicle driven by Michael Steven Buck. The vehicle overturned on Church Street in Rainsville, Alabama, and Marvin was killed.

On June 14, 1988, Paul Buck, Marvin's father, was granted letters of administration for Marvin's estate. On August 30, 1988, Paul, as administrator of Marvin's estate, filed a wrongful death action against the City of Rainsville (the "City"), Michael Steven Buck, and fictitiously named parties.

The City filed a motion for summary judgment, arguing that Paul had not complied with the time requirement for presenting claims against the City pursuant to Ala.Code 1975, § 11-47-23. The trial court entered a summary judgment for the City and made that judgment final pursuant to Rule 54(b), A.R.Civ.P.

Section 11-47-23 provides:

"All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred."

(Emphasis added.) Paul did not provide notice to the City of his claim within six months of Marvin's death. Section 11-47-23 requires that notice be filed within six months of the accrual of the cause of action. In Diemert v. City of Mobile, 474 So.2d 663, 666 (Ala.1985), the Court held that if an action on a claim against a city is filed within the six-month period prescribed in § 11-47-23 then "it is sufficient presentation of the claim under the statute." Accordingly, if Paul's cause of action "accrued" at a point within the six months preceding the date on which he filed his action, then he complied with § 11-47-23, and that provision does not bar his action. ¹ To determine whether Paul timely presented his claim, we must determine when Paul's cause of action "accrued" for the purposes of § 11-47-23.

In Hunnicutt v. City of Tuscaloosa, 337 So.2d 346 (Ala.1976), the Court addressed that same issue. In that case, Linda Hunnicutt, as administratrix of the estate of Doris Burkhalter, filed a wrongful death action against the City of Tuscaloosa. Doris Burkhalter disappeared on October 2, 1973. On June 23, 1974, her body was found in an automobile in Lake Tuscaloosa. Linda Hunnicutt, Doris's daughter, was appointed administratrix of Doris's estate on August 16, 1974. Hunnicutt filed a claim with the city on December 9, 1974, and also filed a wrongful death action on the same date. Tuscaloosa moved for a summary judgment, alleging that Hunnicutt did not provide notice of a claim against the city within six months of the accrual of the cause of action, as required by § 476, Title 37, Alabama Code of 1940 (Recompiled 1958) (the predecessor of Ala.Code 1975, § 11-47-23). The trial court entered a summary judgment for Tuscaloosa, and Hunnicutt appealed.

This Court wrote:

"The resolution of this appeal will be bottomed on answering the question of whether the plaintiff sufficiently complied with the requirements of [§ 476], Title 37, Alabama Code of 1940 (Recompiled 1958) in providing the city with notice of her claim in order to allow her to maintain the suit. [That section] provide[s] as follows:

" § 476: 'All claims against the municipality (except bonds and interest coupons and claims for damages) shall be presented to the clerk for payment within two years from the accrual of said claim, or shall be barred; claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.'

"....

"This court will first address the question of whether the claim filed by the plaintiff complied with the requirements found in section 476, that it be filed 'within six months from the accrual thereof.' The defendant city argues that the claim accrued on the day of the death of Doris Burkhalter, which according to the toxicologist's affidavit was probably in October 1973 and thus section 476 barred the claim because it was filed some 14 months later, in December 1974. The plaintiff on the other hand contends that the claim did not accrue until there was someone capable of bringing the action, in this case not until she was appointed administratrix of the estate of her mother.

"....

"This action was brought under the Alabama Wrongful Death Act, Title 7, § 123, Alabama Code of 1940 (Recompiled 1958). The only person who may maintain an action under this section is a personal representative. Ivey v. Wiggins, 276 Ala. 106, 159 So.2d 618 (1964); Holt v. Stollenwerck, 174 Ala. 213, 56 So. 912 (1911).... In Alabama, a personal representative cannot be appointed for the estate of a deceased, until at least five days have passed from the time the death is 'known.' Title 61, § 86, Alabama Code of 1940 (Recompiled 1958) [§ 43-2-45, Ala.Code 1975]. Under the unusual circumstances of this case a personal representative could not have been appointed until after June 28, 1974.

"The question of when an action accrues within the meaning of section 476 is one of first impression for this court and in order to address this question this opinion will consider the interpretation given the term 'accrue' in cases involving the statute of limitations.

"It is a general rule in Alabama that the statute of limitations begins to run from the time the plaintiff's cause of action accrues. It has been determined that the accrual of a cause of action occurs as soon as the party aggrieved is entitled to begin the prosecution of his cause of action. Esslinger v. Spragins, 236 Ala. 508, 183 So. 401 (1938); Provident Life & Accident Ins. Co. v. Heidelberg, 228 Ala. 682, 154 So. 809 (1934); Larue v. Kershaw Contracting Co., 177 Ala. 441, 59 So. 155 (1912).

"In Home Ins. Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 285 So.2d 468 (1973), this court stated: 'It is clear from our cases that the statute of limitations begins to run when the cause of action accrues, and that the cause accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon.' 291 Ala. at 608, 285 So.2d at 473.

"Under the facts of this case, the party who was entitled to initiate this action was the personal representative of the deceased, who could not have been appointed prior to June 28 [sic, 29] 1974 (5 days after the date that death became 'known' ). Therefore, the date that the claim was filed by the personal representative, December 9, 1974, was within six months from the date of accrual of the claim, June 29, 1974."

337 So.2d at 348-50. (Emphasis added.)

According to Hunnicutt, for the purposes of § 11-47-23, a wrongful death cause of action accrues on the first day following the passage of five days after the discovery of the death of the individual whose death is the basis of the action. ² Paul argues that Hunnicutt improperly--and unnecessarily--referred to June 29 as the date of "accrual" of the cause of action; he contends that the cause of action does not accrue for the purposes of § 11-47-23 until the appointment of a personal representative who is the plaintiff in a wrongful death action. Hunnicutt's reference to June 29 as the date of the accrual was unnecessary, because, measuring even from the date the death became known, the action was filed within six months.

Alabama's wrongful death statute, Ala.Code 1975, § 6-5-410, provides that "a personal representative may commence an action [for wrongful death]." A wrongful death action is statutory and did not exist at common law. Brown v. Mounger, 541 So.2d 463 (Ala.1989); Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), cert. denied, 445 U.S. 930, 100 S.Ct. 1318, 63 L.Ed.2d 763 (1980); Kennedy v. Davis, 171 Ala. 609, 55 So. 104 (1911). Under the statute, the cause of action is vested in the personal representative. ³ Ex parte W.S. Newell, Inc., 569 So.2d 725 (Ala.1990); Brown, supra, at 463; Downtown Nursing Home, at 466; Hatas v. Partin, 278 Ala. 65, 67-68, 175 So.2d 759, 761-62 (1965); Bell v. Riley Bus Lines, 257 Ala. 120, 123, 57 So.2d 612, 615 (1952); Holt v. Stollenwerck, 174 Ala. 213, 216, 56 So. 912 (1911). "The words 'personal representative' are broader in some respects, but when used in this statute, they mean the executor or administrator of the testator or intestate." Hatas, 278 Ala. at 67, 175 So.2d at 760.

We have addressed on several occasions when a cause of action accrues. Hunnicutt cited Home Insurance Co. v. Stuart-McCorkle, Inc., 291 Ala. 601, 608, 285 So.2d 468, 473, (1973), for this succinct and long-settled definition of when a cause of action accrues: "the cause accrues as soon as the party in whose favor it arises is entitled to maintain an action thereon." (Emphasis added.) Using that definition, Hunnicutt suggested that the wrongful death cause of action accrued on the day following the passage of five days after the discovery of the death of the person whose death was the basis of the action. That suggestion assumed that Linda Hunnicutt, as personal representative, was entitled to maintain the wrongful death action on the first day following the passage of five days after the discovery of her mother's death, even though at that time she had not been appointed personal representative of her mother's estate.

Even if that assumption was legally correct at the time of the holding in Hunnicutt, the assumption is not legally correct now. In a series of cases beginning in 1974, the Court has consistently held that except in certain cases involving the death of a minor (see § 6-5-391), an individual cannot maintain a wrongful death action unless he has been...