Hamilton By and Through Hamilton v. Vaden

• Decision Date: 24 June 1986
• Docket Number: No. 64002,64002
• Parties: Nekia HAMILTON, a minor, By and Through his father and next friend, Lewis C. HAMILTON, Plaintiff, v. Clayton L. VADEN; Custom Auto Accessories, Company, a Tennessee Corporation; Frigette Corporation, a Texas Corporation, Successor In Interest to Custom Auto Accessories Company: and Other Unknown Successors, Assigns and Trustees of Custom Auto Accessories Company, Defendants.
• Court: Oklahoma Supreme Court

Page 412

721 P.2d 412

1986 OK 36

Nekia HAMILTON, a minor, By and Through his father and next friend, Lewis C. HAMILTON, Plaintiff, v. Clayton L. VADEN; Custom Auto Accessories, Company, a Tennessee Corporation; Frigette Corporation, a Texas Corporation, Successor In Interest to Custom Auto Accessories Company: and Other Unknown Successors, Assigns and Trustees of Custom Auto Accessories Company, Defendants.

No. 64002.

Supreme Court of Oklahoma.

June 24, 1986.

Steven L. Olson, Pierce Couch Hendrickson Johnston & Baysinger, Oklahoma City, for plaintiff.

Michael E. Smith, King, Roberts & Beeler, Oklahoma City, for defendant, Custom Auto Accessories.

Michael L. Darrah, Huckaby, Fleming, Frailey Chaffin & Darrah, Oklahoma City, for defendant, Clayton L. Vaden.

KAUGER, Justice.

On March 12, 1985, the United States District Court for the Western District of Oklahoma certified three questions of law to this Court. After the questions were certified, defendant Frigette Corp., individually and as successor in interest to Custom Auto Accessories Co., filed a Petition in Bankruptcy; thereafter, it sought and received a stay of these proceedings. On January 6, 1986, the stay was lifted by the United States Bankruptcy Court for the Northern District of Texas, Dallas Division, and on February 10, 1986, the Western District recertified the following questions:

I. Does the minority of a surviving child toll the limitation period provided for by 12 O.S. 1971 § 1053, so as to allow the minor to bring a cause of action for the wrongful death of his mother more than two years after the accident occurred?

II. May a minor bring an action for the wrongful death of his mother when more than one year has passed since a previous wrongful death action brought by the administrator of the decedent's estate was dismissed without prejudice, and after more than two years has passed since the accident?

III. May a minor child who has filed an action to recover for personal injuries sustained by him refile an action for personal injuries sustained by him in a case where the accident occurred more than two years prior to the second filing, and the second filing was more than one year after the dismissal without prejudice of the first action?

While we approach these questions in the sequence in which they are posed, it is apparent that the questions are interrelated to an unusual degree. The common theme underlying all three questions is that the minor's rights belong to the minor and that barring a full determination on the merits approved by the court, the minor is entitled to bring his/her own cause of action upon reaching adulthood. In the interim, the guardian ad litem may not do anything to impair or to prejudice the minor's rights without court approval. Therefore, the Oklahoma Supreme Court has answered all the questions in the affirmative.

On February 24, 1978, a two car collision occurred in Payne County, Oklahoma, killing the driver of one car, Linda Sue Hamilton, and injuring her two passengers, her only son, three year-old, Nekia Hamilton, and Anabelle Terry, her mother. The other vehicle was driven by Clayton Vaden, an On March 30, 1984, this action was filed by Nekia Hamilton by and through his natural father and next friend, Lewis C. Hamilton. ² The complaint sought to recover for damages resulting from the death of the minor's mother, Linda Sue Hamilton, damages for the personal physical injuries and emotional trauma suffered by Nekia Hamilton, and for punitive damages.

                employee of the Custom Auto Accessories Co., who was allegedly acting within the course and scope of his employment at the time of the collision.  In 1979, suit was filed in the United States District Court for the Western District of Oklahoma. 1  The cause was set for jury trial on June 30, 1980, but was dismissed without prejudice by the plaintiff's attorney, who did not refile the case following its dismissal
                

I. THE MINORITY OF A SURVIVING CHILD TOLLS THE LIMITATION PERIOD PROVIDED BY 12 O.S.1971 § 1053, AND ALLOWS THE MINOR TO BRING A CAUSE OF ACTION FOR THE WRONGFUL DEATH OF HIS MOTHER MORE THAN TWO YEARS AFTER THE ACCIDENT OCCURRED

This Court decided in Brookshire v. Burkhart, 141 Okla. 1, 283 P. 571-72, 576-78 (1929), ³ that the minority status of a surviving child tolls the limitation period prescribed by the wrongful death act, 12 O.S. 1971 §§ 1053, 1054. ⁴ A review of the wrongful death statutes and the applicable tolling provisions, as well as decisions from other jurisdictions with similar statutes, persuaded the Brookshire court that the Legislature did not intend for the two year limitation period to be construed to condition the right to bring an action, but was merely a restriction upon the remedy available to a person seeking redress under the statute. In reaching its conclusion, the Court determined the effect that certain tolling provisions, i.e., Comp.Stat.1921 §§ 186, 190 (recodified as 12 O.S. 1971 §§ 96, 100), would have upon § 1053, and held that because the statutes were in pari materia, the decedent's spouse could maintain an action on behalf of his minor son, more than three (3) years after the mother's death.

Brookshire involved precisely the same statutory provisions under consideration here, and it has never been overruled or modified by this Court. We find its reasoning to be sound and its holding to be controlling in answering the first certified question. Oklahoma law allows an action for wrongful death to be brought on behalf

of a minor for the death of his mother more than two (2) years after the date of her death contingent upon suit being brought by either the decedent's personal representative, spouse, or next of kin in accordance with 12 O.S. 1971 §§ 1053, 1054.

II A MINOR MAY BRING AN ACTION FOR THE WRONGFUL DEATH OF HIS MOTHER MORE THAN ONE YEAR AFTER A PREVIOUS WRONGFUL DEATH ACTION BROUGHT BY THE ADMINISTRATOR OF THE DECEDENT'S ESTATE

HAS BEEN DISMISSED WITHOUT PREJUDICE, AND AFTER MORE THAN

TWO YEARS HAS PASSED SINCE THE ACCIDENT

While our decision in Brookshire dictates the answer to Question I, we must refocus our analysis in assessing whether a minor may pursue a wrongful death action more than a year after the dismissal without prejudice of a prior action, and more than two years after the accident. Because the cause of action for wrongful death is purely statutory, suit may be brought only by a person expressly authorized by statute to do so. ⁵ A minor's ability to bring an action for the wrongful death of his mother is entirely contingent upon whether the minor can qualify as a person entitled to sue under the strictures of 12 O.S. 1971 §§ 1053, 1054.

The wrongful death statute, 12 O.S. 1971 § 1053, provides that when the death of one is caused by the wrongful act or omission of another, the decedent's representative may maintain an action against the tortfeasor. However, if no personal representative has been appointed, the action may be brought by the widow, or in her absence by the next of kin. A minor may not serve as an executor and therefore, cannot qualify as the decedent's personal representative. ⁶ Before a minor may sue for wrongful death, he/she must show that an administrator has not been appointed, that the minor is the decedent's surviving spouse, or that there is no surviving spouse and that he/she is the next of kin. ⁷ In all other circumstances, as in this case, the action for wrongful death could only be brought by an authorized representative acting on the minor's behalf. ⁸

The defendants relying upon St. Louis-San Francisco Ry. Co. v. Thompson, 139 Okla. 142, 281 P. 565, 567 (1929), contend that the wrongful death act contemplates a single, indivisible, action thus precluding separate, successive actions by individual damage claimants. They argue that disposition of the 1979 lawsuit filed by the administrator binds all the potential beneficiaries, regardless of the result. This argument is flawed, not in its recitation of the rule of law but in the application of the rule urged by the defendants. The beneficiaries were bound only to the result reached by the trial court--in this instance to whatever results from a dismissal without prejudice. The point is that dismissals without prejudice leave the parties as if no action had ever been commenced. ⁹

Minority is a sufficient disability to justify the tolling of the § 1053 two year statute The defendants also suggest that because Nekia Hamilton was represented by his father and next friend in the original action, he was no longer disabled by his minority, and that, 12 O.S. 1981 § 96 would therefore, not toll the statute of limitations. However, the defendants do not cite any cases which would support this position, nor does our research reveal any; indeed what we have found contradicts this contention. The general rule is that after a guardian ad litem has been appointed for a minor, the guardian has the right, but not the obligation, to sue within the prescribed period of limitation. The guardian's failure to bring suit, or the discontinuation of a suit within the statutory period does not prejudice the minor's rights. The action is not barred by the two-year limitation until one year after the disability of infancy has been removed. ¹²

                of limitations.  The defendants are wrong in asserting that the son's right to recover damages for Linda Sue Hamilton's death, is somehow limited to the one year period granted by our saving statute. 10  Pursuant to 12 O.S. 1981 § 700, 11 had a lawsuit never been commenced, a wrongful death action might have been brought on Nekia Hamilton's behalf at any time prior to his nineteenth birthday
                

Title 12 O.S. 1971 § 226, (now 12 O.S.Supp.1984 § 2017) provides that an infant may only sue through his/her guardian or next friend. This same statute provides that the court has the power to dismiss an action if it is determined that an action is not being conducted in the child's best interest....