Clark Sand Company, Inc. v. Kelly, No. 2008-IA-01437-SCT (Miss. 2/25/2010)
| Decision Date | 25 February 2010 |
| 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 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. |
| Court | Mississippi Supreme Court |
ATTORNEYS FOR APPELLANTS: FRED KRUTZ, III, EDWIN S. GAULT, JR., JENNIFER J. SKIPPER, CLYDE L. NICHOLS, III, BLAYNE T. INGRAM.
ATTORNEYS FOR APPELLEE: R. ALLEN SMITH, JR., DAVID NEIL McCARTY.
EN BANC.
¶ 1. Defendant Clark Sand Company brings this interlocutory appeal from the Warren County Circuit Court's denial of its motion for summary judgment. The circuit court found 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. Finding that Kelley lacked standing to commence this action at the time she did, we reverse the circuit court's decision.
¶ 2. David T. Bozeman1 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 alleged generally that "[s]ome of the Plaintiffs to this action have suffered injury and premature death[, and] the Defendants referenced herein have therefore injured those decedents' wrongful death beneficiaries." Thus, the McBride complaint included claims for the decedents' wrongful deaths in favor of their purported beneficiaries. McBride was filed in the Circuit Court of Holmes County, Mississippi.
¶ 3. Bozeman died on March 11, 2005, while McBride was pending. Ruby C. Kelley, Bozeman's live-in girlfriend, 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 except his pick-up truck to her. 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.
¶ 4. On March 10, 2006, McBride was dismissed without prejudice pursuant to this Court's decision in Canadian National v. Smith, et al., 926 So. 2d 839 (Miss. 2006).3
¶ 5. 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 savings statute allowed her to bring within one year after the dismissal of McBride pursuant to Canadian National. 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.4
¶ 6. 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 savings 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. Clark Sand pointed out that, in his sworn deposition, taken in 2004, Bozeman specifically stated that "I don't have a wife," and Bozeman and his attorney both referred to Kelley as Bozeman's girlfriend.
¶ 7. 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 statue of limitations had not run because the limitation period was tolled either by the savings statute or 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.
¶ 8. Clark Sand moved for summary judgment again on June 18, 2008, arguing that Kelley's action was untimely filed. Specifically, Clark Sand argued that the parties and claims asserted in Kelley's complaint were different from those in McBride, and because of this, Kelley had failed to meet the requirements of the savings statute. Both of Clark Sand's motions for summary judgment were taken under advisement by the circuit court.
¶ 9. By order dated August 11, 2008, the circuit court denied both of Clark Sand's motions. The circuit court held that Kelley had standing to file the wrongful-death action, 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 savings statute's one-year tolling effect after the dismissal of McBride.
¶ 10. Clark Sand petitioned this Court for interlocutory appeal, asserting two issues:
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 savings 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?
We granted Clark Sand's petition for interlocutory appeal on September 18, 2008.5 We find the first issue, Kelley's standing to commence this suit, dispositive.
¶ 11. This Court reviews a trial court's grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. Monsanto v. Hall, 912 So. 2d 134, 136 (Miss. 2005).
Whether Kelley had standing to commence the instant action.
¶ 12. Our analysis of this issue implicates the savings statute and the wrongful-death statute. Miss. Code Ann. § 15-1-69 (Rev. 2003); Miss. Code Ann. § 11-7-13 (Rev. 2004).6 Clark Sand argues that this suit is different from Bozeman's claim in McBride because the parties and claims are different, and thus the savings statute does not apply. However, Kelley specifically averred in her complaint that this suit is a continuation of Bozeman's previous McBride claim, which the savings statute allowed her to bring within one year of McBride's dismissal pursuant to Canadian National.
¶ 13. The savings statute requires the "new action" to be "for the same cause." Miss. Code Ann. § 15-1-69 (Rev. 2003). However, whether the instant action is the same as or different from Bozeman's McBride claim need not be addressed. We need only decide whether Kelley had standing to bring it. Both the savings statute and the wrongful-death statute permit the action to be brought by the decedent's personal representative. Miss. Code Ann. § 15-1-69 (); Miss. Code Ann. § 11-7-13 (). Hence, if we determine Kelley's standing to bring this action under the wrongful-death statute, we simultaneously determine her standing, or lack thereof, under the savings statute.
¶ 14. The United States Supreme Court has stated 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 not before the court." Third, it must be" likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351, 357 (1992) (internal citations omitted) (emphasis added). And standing "is to be determined as of the commencement of suit." Delta Health Group, Inc. v. Estate of Pope, 995 So. 2d 123, 126 (Miss. 2008) (quoting Lujan, 504 U.S. at 571, 112 S. Ct. at 2142, 119 L....
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