Cofer v. Ensor

• Citation: 473 So.2d 984
• Parties: Robin M. COFER, as mother of Baby Cofer, deceased v. Herman C. ENSOR; Ensor, Baccus, Williamson, P.A.; Cullman Medical Center. 83-898.
• Decision Date: 12 April 1985
• Court: Supreme Court of Alabama

Page 984

473 So.2d 984

54 A.L.R.4th 325

Robin M. COFER, as mother of Baby Cofer, deceased v. Herman C. ENSOR; Ensor, Baccus, Williamson, P.A.; Cullman Medical Center.

83-898.

Supreme Court of Alabama.

April 12, 1985.

Rehearing Denied July 3, 1985

Carl E. Chamblee, Sr. and Gould H.K. Blair, Birmingham, for appellant.

Robert E. Parsons and Marda W. Sydnor of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee Cullman Medical Center.

PER CURIAM.

This case presents an issue of first impression:

Does the minority of a parent of a deceased minor child toll the running of the two-year period for bringing an action under Code of 1975, § 6-5-391, for the wrongful death of the minor child?

Stated differently, and perhaps more precisely as to the dispositive questions involved, is the two-year limitations period found in § 6-2-38(a), applicable to § 6-5-391, a technical statute of limitations, and thus subject to the tolling provisions of § 6-2-8(a); or is it a statute of creation, not subject to any tolling provisions, as is § 6-5-410 (wrongful death statute), in which a two-year limitations period is expressly stated (§ 6-5-410(d)), and which has been deemed "not [to be] a statute of limitations, but of the essence of the cause of action"? Parker v. Fies & Sons, 243 Ala. 348, 350, 10 So.2d 13, 15 (1942). We hold that the two-year limitations period found in § 6-2-38(a), as applied to § 6-5-391, is a "statute of creation" and the action is barred.

Plaintiff, Robin Cofer, gave birth to a baby boy on February 10, 1980, at the Cullman Medical Center. The child died the same day. Robin Cofer's attending physician was Dr. Herman C. Ensor. At the time she gave birth, Cofer was 16 years old and married. Later that year, however, on November 14, 1980, Cofer obtained a divorce, and, therefore, she never reached the age of 18 while she was married, nor was she ever otherwise freed of the disabilities of non-age.

On December 22, 1982, the day before her nineteenth birthday, Cofer brought an action against her doctor, Herman Ensor, and the Cullman Medical Center, alleging medical malpractice in their treatment of her, which she alleges resulted in her inability to bear children. She also added a claim for the wrongful death of her minor son.

The Cullman Circuit Court granted the defendants' motion to dismiss the wrongful death count of the complaint on the ground that it was time barred. The action was filed two years and ten and a half months after the alleged wrongful death of the child. The trial court granted Cofer's Rule 54(b), Ala.R.Civ.P., motion, certifying as final its dismissal of the wrongful death claim.

The pertinent provisions of those code sections relevant to the issue involved in this case are as follows:

§ 30-4-15:

"The marriage of any woman in this state who is under 19 and over 18 years of age, ... or the arrival at the age of 18 years of any married woman or widow in this state, has the effect immediately to remove her or their disabilities of minority; and thereafter she has the same legal rights and abilities as married women or widows over 19 years of age."

§ 6-2-8:

"(a) If anyone entitled to commence any of the actions enumerated in this chapter, ... is, at the time such right accrues, below the age of 19 years, ... he shall have three years, or the period allowed by law for the commencement of such action if it be less than three years, after the termination of such disability to commence an action, ... provided, however, that no disability shall extend the period of limitations so as to allow such action to be commenced, entry made or defense made after the lapse of 20 years from the time the claim or right accrued."

§ 6-5-391:

"When the death of a minor child is caused by the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, the father, or the mother in cases mentioned in section 6-5-390, or, if the father and mother are both dead, if they decline to commence the action, or fail to do so, within six months from the death of the minor, the personal representative of such minor may commence an action, and in any case shall recover such damages as the jury may assess; provided, that an action by any one of them for the wrongful death of the minor shall be a bar to another action either under this section or under section 6-5-410." (Code 1876, § 2899; Code 1886, § 2588; Code 1896, § 27; Code 1907, § 2485; Code 1923, § 5695; Code 1940, T. 7, § 119.)

§ 6-5-390:

"A father or a mother, provided they are lawfully living together as husband and wife, shall have an equal right to commence an action for an injury to their minor child, a member of the family; provided, however, that in the event such mother and father are not lawfully living together as husband and wife, or in the event legal custody of such minor child has been lawfully vested in either of the parties or some third party, then and in either event the party having legal custody of such minor child shall have the exclusive right to commence such action."

§ 6-2-38:

"(a) An action by a representative to recover damages for wrongful act, omission or negligence causing the death of the decedent under sections 6-5-391 and 6-5-410 must be commenced within two years from the death." (Code 1896, § 2800; Code 1907, § 4839; Code 1923, § 8948; Code 1940, T. 7, § 25; Acts 1953, No. 760, p. 1022, §§ 1-4.)

§ 6-5-410:

"(a) A personal representative may commence an action and recover such damages as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere, for the wrongful act, omission or negligence of any person, persons or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, provided the testator or intestate could have commenced an action for such wrongful act, omission or negligence if it had not caused death.

" * * *

"(d) Such action must be commenced within two years from and after the death of the testator or intestate." (Code 1852, §§ 1940, 1941; Code 1867, §§ 2299, 2300; Code 1876, §§ 2641-2643; Code 1886, § 2589; Code 1896, § 27; Code 1907, § 2486; Acts 1911, No. 455, p 484; Code 1923, § 5696; Code 1940, T. 7, § 123.)

This Court has recognized the general rule that a distinction exists between a true statute of limitations and a statute which creates a new right of action with an express restriction on the time within which an action may be brought to enforce the right. In her brief, Cofer designates the former a "statute of limitations," and the latter a "statute of creation." We adopt these designations for our use herein.

The Court of Civil Appeals in State, Department of Revenue v. Lindsey, 343 So.2d 535, 537 (Ala.Civ.App.1977), explained the effect of the distinction between the two types of statutes:

"In one [a statute of creation], the limitation [period] is so inextricably bound up in the statute creating the right that it is deemed a portion of the substantive right itself. In the other [a statute of limitation], the limitation is deemed to affect only the remedy and does not constitute part of the substantive right. By affecting the remedy, it is meant that the statute establishes the time frame in which a party may seek to enforce his claim. The running of the latter type of statute of limitation does not extinguish a party's right, but merely precludes his judicial assertion of that right. 51 Am.Jur.2d Limitation of Actions §§ 8, 15, 22.

"Alabama decisions state that a statute of limitations, unless the act specifically declares otherwise, is construed as affecting the remedy only. [Citations omitted.]"

Consequently, where a prescriptive period is contained within the statutory grant of a cause of action, it is a statute of creation, and the period is deemed a portion of the substantive right itself, not subject to tolling provisions. See Nicholson v. Lockwood Greene Engineers, Inc., 278 Ala. 497, 179 So.2d 76 (1965). On the other hand, where the prescriptive period comes from without the statute, it is a statute of limitations, to which the tolling provisions apply.

"Whether an enactment is in the nature of a conditional statute, or whether it is a statute of limitations, should be determined from a proper construction of its terms. The fact that the limitation is in the same statute as the one creating the new liability is persuasive of the fact that it is intended as a condition of the right created...." (Footnotes omitted.) (Emphasis added.) 51 Am.Jur.2d Limitation of Actions, § 15, p. 600 (1970).

Cofer maintains that the two-year prescriptive period in Code of 1975, § 6-2-38(a), is a statute of limitations, and thus is subject to being tolled by the parent's minority under § 6-2-8(a). In support of the contention, Cofer relies on the statutory history of § 6-5-391, set forth below.

The original act (Session of 1871-72), allowing the parents a right of action for the wrongful death of a minor, contained a one-year limitations period.

"No. 61. AN ACT

"For the better protection of human life.

"Section 1. Be it enacted by the General Assembly of Alabama, That when the death of any minor child is caused by the wrongful act, or omission of any officer or agent of an incorporated company, or private association of persons, the father of said child, or if the father be not living, the mother, may maintain an action against said corporation or private association of persons for said wrongful act or omission, and may recover such damages as the jury may assess; Provided, that suit must be brought under the provisions of this act within twelve months after the decease of said child, and not after.

"Approved, February 24, 1872."

For reasons not material here, the first act was found to be unconstitutional in Smith v. Louisville & Nashville R.R. Co., 75 Ala. 449 (1883).

When the legislature adopted an act allowing parents to sue for the...