Kirkley v. Tyson Foods, Inc. (Ex parte Tyson Foods, Inc.), 1110931.

• Decision Date: 24 May 2013
• Docket Number: 1110931.
• Citation: 146 So.3d 1041
• Parties: Ex parte TYSON FOODS, INC., et al. (In re Reba Kirkley, as administratrix of the estate of Allen Hayes, deceased v. Tyson Foods, Inc., et al.).
• Court: Alabama Supreme Court

146 So.3d 1041

Ex parte TYSON FOODS, INC., et al.(In re Reba Kirkley, as administratrix of the estate of Allen Hayes, deceased

v.Tyson Foods, Inc., et al.).

1110931.

Supreme Court of Alabama.

May 24, 2013.

Special Concurrance Issued on Denial of Rehearing Oct. 4, 2013.

Carol Ann Smith and David R. Pace of Smith & Pace, P.C., Birmingham; and Alexander M. Smith of Smith & NeSmith, P.C., Oneonta, for petitioners.

R. Matt Glover of Prince Glover & Hayes, Tuscaloosa; J. Stanton Glasscox of Hayes, Jackson, Weaver & McKinney, LLC, Birmingham; and Brett A. King, Locust Fork, for respondent.

Opinion

MOORE, Chief Justice.

Tyson Foods, Inc., Ricky Walker, and Mike Graffino (hereinafter referred to collectively as “the Tyson petitioners”) petition this Court for a writ of mandamus directing the Blount Circuit Court to dismiss Reba Kirkley's action against them, brought in her capacity as administratrix, i.e., personal representative, of her father's estate, on the ground that Kirkley lacks standing. Because the Tyson petitioners have not demonstrated a clear legal right to the remedy they seek, we deny the petition.

I. Factual and Procedural History

On April 15, 2008, Allen Hayes died in a workplace accident at the Tyson Foods plant in Blount County. Hayes, who was working as a security guard, was hit by a tractor being operated by an employee of Tyson Foods. His widow Mildred Hayes collected $40,964.19 in workers' compensation death benefits against the account of DSI Security Services, Allen's employer at the time of the accident. On June 26, 2008, Kirkley, the personal representative of Allen's estate and Allen and Mildred's daughter, filed a wrongful-death action against the Tyson petitioners, who answered and removed the case to federal court. In early March 2011, the federal court remanded the case to state court. Six months later, the Tyson petitioners filed amended answers and a motion to dismiss on the basis that Kirkley lacked standing to bring the wrongful-death action. The trial judge, on Kirkley's motion, struck the amended answers and denied the motion to dismiss. The Tyson petitioners then sought a writ of mandamus from this Court.

Neither a wrongful-death action nor an action for workers' compensation death benefits existed at common law. Both are purely statutory causes of action.¹ The statute providing for a wrongful-death action, § 6–5–410(a), Ala.Code 1975, allows only a personal representative of the deceased's estate to bring such an action. The workers' compensation statute, by contrast, allows the deceased employee's personal representative to bring a third-party action only when the covered employee dies without dependents. If dependents survive, the right to sue third parties alleging the wrongful death of the employee lies solely with them. § 25–5–11, Ala.Code 1975; Tucker v. Molden, 761 So.2d 996, 998 (Ala.2000) ; and Johnson v. Huxford Pole & Timber Co., 983 So.2d 1133, 1138–39 (Ala.Civ.App.2007). Under the workers' compensation statute, Allen had only one dependent at the time of his death—his wife Mildred. Kirkley, being over the age of 19 and not incapacitated at the time of Allen's death, did not qualify as a dependent. §§ 25–5–61 and –65, Ala.Code 1975. This “quirk,” as the Tyson petitioners describe it, meant that Kirkley did not qualify to prosecute the wrongful-death action.

In November 2011, the Tyson petitioners for the first time brought this fact to the attention of Kirkley and the trial court in their first amended answers and a companion motion to dismiss. Emphasizing that the wrongful-death statute had a specific two-year statute of limitations, § 6–5–410(d), Ala.Code 1975, the Tyson petitioners argued that the time in which Mildred could be substituted as the plaintiff in the wrongful-death action had expired. Thus, they contended, the trial court had no choice but to dismiss the action for lack of a proper plaintiff.

Kirkley responded that the Tyson petitioners' request for a dismissal was barred by the doctrine of laches because they did not assert their rights until after the two-year statute of limitations for a wrongful-death action had expired. She also asked the trial court to add Mildred as a plaintiff under Rule 17(a), Ala. R. Civ. P., and to exercise its discretion under Rule 15(a), Ala. R. Civ. P., to strike the amended answers.

On March 7, 2012, the trial court struck the Tyson petitioners' amended answers, denied their motion to dismiss, and granted Kirkley's motion to add Mildred as a plaintiff. On April 18, 2012, the Tyson petitioners filed a petition for a writ of mandamus in this Court, seeking an order directing the trial court to dismiss the case. The Tyson petitioners argued that Kirkley lacked standing to prosecute the wrongful-death action and that the motion to add Mildred as a plaintiff came too late.

II. Standard of Review

This Court has previously allowed mandamus review to hear a challenge to standing. See, e.g., Ex parte HealthSouth Corp., 974 So.2d 288 (Ala.2007) ; Ex parte Chemical Waste Mgmt., Inc., 929 So.2d 1007, 1010 (Ala.2005). The threshold for granting the petition, however, is high:

“Mandamus is a drastic and extraordinary writ, to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court.”

Ex parte Integon, 672 So.2d 497, 499 (Ala.1995).

III. Analysis

A. Clear Legal Right to Order Sought: Standing v. Capacity

The Tyson petitioners' request for relief implicates a legal question this Court has referred to as “the standing/capacity dichotomy.” Daniel v. O.F. Richter & Sons, Inc.,

385 So.2d 1308, 1309 (Ala.1980). If the issue of Kirkley's right to file a wrongful-death action is one of capacity under Rule 17, Ala. R. Civ. P., as she argues, rather than a question of standing, as the Tyson petitioners insist, then Kirkley may well prevail. Lack of capacity is an affirmative defense that is waived if not raised² and is often curable.³ Lack of standing, however, cannot be waived and can be raised at any time. Sexton v. Bass Comfort Control, Inc., 63 So.3d 656, 664 (Ala.Civ.App.2010).⁴

This Court has previously stated that “the Workers' Compensation Chapter limits standing to sue to the injured employee himself or herself or his or her dependents....” Tucker v. Molden, 761 So.2d at 998 (emphasis added). That statement, however, was dictum, unnecessary to the issue decided in Tucker. No party disputed that the plaintiff in Tucker had standing; nor did Tucker discuss capacity. By contrast, in Alabama Power Co. v. White, 377 So.2d 930 (Ala.1979), this Court expressly held that surviving dependents of a deceased employee have the capacity to bring an action and that a defendant waives the challenge to capacity by not raising it.

“[W]e hold that § 25–5–11(a) [, Ala.Code 1975,] by the phrase ‘the employee, or his dependents in case of his death, may proceed against the employer’ gives to the dependents CAPACITY to bring suit against the employer under certain circumstances. We hold that dependency is capacity under § 25–5–11(a) which must be denied by the defendant by specific negative averment....”

377 So.2d at 936. As discussed below, other cases are consistent with this holding.

In Board of Water & Sewer Commissioners of the City of Mobile v. McDonald, 56 Ala.App. 426, 322 So.2d 717 (Civ.App.1975), the plaintiff, facing a motion to dismiss for lack of standing, sought to amend the complaint to join his wife, the actual owner of the property at issue, as a plaintiff. Rule 17(a), Ala. R. Civ. P., states:

“No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.”

Rule 17 allows the substitution or joinder of plaintiffs in the same way that Rule 15, Ala. R. Civ. P., permits the substitution of defendants to relate back to the date of the filing of the original pleading. See Rule 17, Ala. R. Civ. P. (Committee Comments on 1973 Adoption). Noting the admonition in Rule 15 that “amendments are to be allowed ‘freely ... when justice so requires,’ ” McDonald, 56 Ala.App. at 429, 322 So.2d at 720, the Court of Civil Appeals held that “the amendment was properly allowed even if it worked to avoid the statute of limitations.” 56 Ala.App. at 430, 322 So.2d at 720. The court applied the conditions on the relation back of amendments to defendants under Rule 15(c) to the addition of a real party in interest as a plaintiff under Rule 17(a) :

“An amendment changing parties plaintiff relates back if the claim of the new party arose out of the same transaction, conduct or occurrence as that set forth in the original pleading, and if the defendant, within the period provided by law for commencing the action against him (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the substituted or joined party would have brought the action against him.”

McDonald, 56 Ala.App. at 430, 322 So.2d at 721. The court then quoted “the sense of the rule” from a leading treatise:

“ ‘As long as defendant is fully apprised of the claim arising from specified conduct and has fully prepared to defend the action against him, his ability to protect himself will not be prejudicially affected if a new plaintiff is added, and he should not be permitted to invoke a limitations defense.’ ”

Id. (quoting 6 Charles A. Wright & Arthur R. Miller, Federal Practice...