Clark Sand Co. Inc. v. Kelley

• Decision Date: 28 April 2011
• Docket Number: No. 2008–IA–01437–SCT.,2008–IA–01437–SCT.
• Parties: 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 Corporationv.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.
• Court: Mississippi Supreme Court

60 So.3d 149

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

v.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.

No. 2008–IA–01437–SCT.

Supreme Court of Mississippi.

April 28, 2011.

Fred Krutz, III, Edwin S. Gault, Jr., Jackson, Jennifer J. Skipper, Clyde L. Nichols, III, Blayne T. Ingram, attorneys for appellants.R. Allen Smith, Jr., Ridgeland, David Neil McCarty, attorneys for appellees.EN BANC.

ON MOTION FOR REHEARING

WALLER, Chief Justice, for the Court:

¶ 1. The motion for rehearing filed by the appellee is granted. The previous opinions are withdrawn, and these opinions are substituted therefor.

¶ 2. The Warren County Circuit Court denied defendant Clark Sand's motion for summary judgment, finding that the plaintiff, Ruby C. Kelley, had standing to bring this wrongful-death action, either as the decedent's personal representative or as an interested party, and that the suit was brought within the applicable statute of limitations. With this Court's permission, see Mississippi Rule of Appellate Procedure 5, Clark Sand brought this interlocutory appeal to review that decision. We reverse the trial court's denial of summary judgment with respect to the “survival-type” claims included in Kelley's wrongful-death action, as those claims are time-barred. We also reverse the trial court's factual findings on the issue of Kelley's standing. But we affirm the trial court's denial of summary judgment insofar as Kelley has presented a genuine issue of material fact regarding whether she was the decedent's common-law wife at the time of his death, and we remand for trial, during which the fact-finder must decide this question.

FACTS AND PROCEDURAL HISTORY

¶ 3. David T. Bozeman ¹ worked with silica and silica products throughout his entire working life, but his last exposure to silica was sometime in 1994. On June 2, 2002, Bozeman was diagnosed with lung cancer caused by silicosis. On September 23, 2002, Bozeman joined with fifty-four other plaintiffs in a mass-tort, personal-injury suit against various silica manufacturers and distributors, including Clark Sand Company, styled Danny McBride, et al. v. Pulmosan Safety Equipment Corporation, et al. The McBride complaint included claims for all the plaintiffs' personal injuries, but it also included wrongful-death claims for those plaintiffs who had died from silicosis in favor of their purported beneficiaries. McBride was filed in the Circuit Court of Holmes County, Mississippi.

¶ 4. Bozeman, an Alabama resident, died on March 11, 2005, while McBride was pending. Ruby C. Kelley, Bozeman's live-in girlfriend and fellow Alabamian, 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 to her except his pick-up truck. Bozeman also was survived by two sons, one of whom was mentioned in his will.² After Bozeman's death, Kelley did not amend the complaint regarding Bozeman's McBride claim or move the trial court to substitute her as the real party in interest.

¶ 5. On March 10, 2006, McBride was dismissed without prejudice pursuant to this Court's decision in Canadian National v. Smith, 926 So.2d 839 (Miss.2006). Smith held that all claims previously filed en masse for silicosis damages that were not filed in the proper venue should be severed as misjoined pursuant to Janssen Pharmaceutica v. Armond, 866 So.2d 1092 (Miss.2004), which requires each claim joined in a single lawsuit to arise from a “distinct, litigable event.” Smith, 926 So.2d at 845 (citing Armond, 866 So.2d at 1099). The Smith Court stated that such a dismissal would be “as to a matter of form,” for purposes of the saving statute, Mississippi Code Section 15–1–69. Smith, 926 So.2d at 845.³

¶ 6. Kelley filed the instant action on March 5, 2007, in the Circuit Court of Warren County, Mississippi. Her complaint was styled “ Ruby C. Kelley, Executrix of the Estate of David C. Bozeman, Deceased and on behalf of all Wrongful Death Beneficiaries of David C. Bozeman, Deceased v. Clark Sand Co., Inc., et al.” Kelley specifically averred in her complaint that this suit is merely a continuation of Bozeman's previous McBride claim, which the saving statute allowed her to bring within one year after the dismissal of McBride pursuant to Smith. 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.

¶ 7. Clark Sand answered the complaint, asserting various affirmative defenses. Specifically, Clark Sand argued that the court lacked subject-matter jurisdiction over the cause and that the applicable statute of limitations barred Kelley's suit. Clark Sand moved for summary judgment on July 2, 2007, arguing that Kelley's suit was time-barred because she had missed the deadline under the survival saving statute found in Mississippi Code Section 15–1–55. Clark Sand also argued that, at the time she filed suit, Kelley lacked standing to bring the suit because she had not yet been formally appointed executrix of Bozeman's estate and she was not Bozeman's wife.

¶ 8. On July 20, 2007, Kelley responded to Clark Sand's summary-judgment motion. She argued first that she had standing as Bozeman's personal representative to initiate the wrongful-death action because she was named executrix in Bozeman's will. Kelley also contended that she and Bozeman had maintained a common-law marriage because they had held themselves out as husband and wife and had cohabitated for six years. Finally, Kelley argued that the statute of limitations had not run because the limitation period was tolled either by the saving statute or by the pendency of McBride. Kelley was formally appointed executrix of Bozeman's estate on August 7, 2007, when she was issued letters testamentary by the Probate Court of Choctaw County, Alabama.

¶ 9. Clark Sand moved again for summary judgment on June 18, 2008, arguing that Kelley's action was untimely filed. Specifically, Clark Sand argued that Kelly was not entitled to the benefits of the saving statute because the parties and claims asserted in her complaint were different from those in McBride, and Kelley had thus failed to meet the requirements of the statute.

¶ 10. By order dated August 11, 2008, the circuit court denied both of Clark Sand's motions. The circuit court found that, by virtue of Bozeman's will, Kelley “could be considered [his] personal representative ... but if not, she certainly would be an interested party....” So the circuit court held that Kelley had standing either as Bozeman's personal representative or as an interested party, and that Kelley's suit was filed within the applicable statute of limitations because of the saving statute's one-year tolling effect following the dismissal of McBride.

¶ 11. On August 22, 2008, Clark Sand petitioned this Court for interlocutory appeal, asserting two issues. They are:

I. Does a decedent's girlfriend—without court approval or authorization—have standing to file an action under the survival statute and/or the wrongful-death statute?

II. Does the provision in Mississippi's saving statute allowing one year to refile apply to a second suit which differs from the original in both the identity of parties and the identity of claims?

On August 28, 2008, Kelley sought a declaration from an Alabama circuit court that she was Bozeman's common-law wife. On September 18, 2008, we granted Clark Sand's petition for interlocutory appeal. On October 23, 2008, the Alabama court found that Kelley and Bozeman had maintained a common-law marriage at the time of his death. But on February 10, 2009, the Alabama court vacated and set aside the common-law-marriage decree.

STANDARD OF REVIEW

¶ 12. Standing is a question of law reviewed under a de novo standard. Kirk v. Pope, 973 So.2d 981, 986 (Miss.2007) (citing City of Picayune v. S. Reg'l Corp., 916 So.2d 510, 519 (Miss.2005); Brown v. Miss. Dep't of Human Servs., 806 So.2d 1004, 1005–06 (Miss.2000)). This Court also reviews a trial court's grant or denial of a motion for summary judgment under a de novo standard. Monsanto v. Hall, 912 So.2d 134, 136 (Miss.2005).

DISCUSSION

¶ 13. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Miss. R. Civ. P. 56(c). In this case, the legal question of Kelley's standing to file suit under the wrongful-death statute is contingent upon several factual questions. We analyze Clark Sand's motion for summary judgment with respect to these factual questions.

I. Kelley presented a genuine issue of material fact to overcome summary judgment.

¶ 14. The United States Supreme Court has stated that standing is “an indispensable part of the plaintiff's case,” and that “the irreducible constitutional minimum of standing contains three elements.”

First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized [and] (b) 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 ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party...