Miller v. Centerpoint Energy, CA 06-668.

• Decision Date: 28 February 2007
• Docket Number: No. CA 06-668.,CA 06-668.
• Citation: 98 Ark. App. 102,250 S.W.3d 574
• Parties: Mary E. MILLER, Special Administrator of the Estate of Vincent Guy Miller, Deceased, Appellant, v. CENTERPOINT ENERGY RESOURCE CORPORATION, a/k/a Arkla; Wesley Pierce, Individually; Megan Roberts, Individually; Andy West, Individually; & Dana West, Individually, Appellees.
• Court: Arkansas Court of Appeals

250 S.W.3d 574

98 Ark. App. 102

Mary E. MILLER, Special Administrator of the Estate of Vincent Guy Miller, Deceased, Appellant, v. CENTERPOINT ENERGY RESOURCE CORPORATION, a/k/a Arkla; Wesley Pierce, Individually; Megan Roberts, Individually; Andy West, Individually; & Dana West, Individually, Appellees.

No. CA 06-668.

Court of Appeals of Arkansas.

February 28, 2007.

Niblock & Associates, by: Jeremy Bueker, Stuttgart, for appellant.

Friday, Eldredge & Clark, LLP, by: James M. Simpson and Martin A. Kasten, Little Rock, for appellee Centerpoint Energy Resource Corporation.

Matthews, Sanders & Sayes, by: Doralee Chandler and Mel Sayes, Little Rock, for appellees Andy and Dana West.

SAM BIRD, Judge.

This appeal is from a wrongful-death action filed by appellant, Mary Miller, to recover from appellees, Centerpoint Energy Resources Corporation (Centerpoint) and Dana and Andy West, for injuries that Mrs. Miller's husband sustained in a gas explosion in a home owned by the Wests on July 9, 2001. The Pulaski County Circuit Court granted Centerpoint's motion to dismiss and the Wests' motion for summary judgment, and Mrs. Miller has appealed.¹ We reverse and remand the circuit court's order granting Centerpoint's motion to dismiss, and we affirm the circuit court's order granting the Wests' motion for summary judgment.

In early July 2001 Mary and Vincent Miller moved into an apartment being leased by Wesley Pierce and Megan Roberts from the owners, Dana and Andy West. The Millers intended to stay only a few weeks and agreed to pay one hundred dollars a week to Pierce and Roberts. The lease agreement between the Wests and Pierce and Roberts specifically forbade Pierce and Roberts from subletting the premises or any part thereof without the written consent of management. The Wests were never advised that the Millers were moving in, and the Millers never met the Wests. Mrs. Miller discovered a space heater in the bedroom closet when she moved in with Pierce and Roberts. She said that Pierce and Roberts told her that the space heater was disconnected when they moved in, so they put it in a closet. She learned after the accident that they had placed an entertainment center in front of the uncapped gas line. On July 9, 2001, a week after the Millers moved in, an explosion occurred, allegedly due to a gas leak from the uncapped gas line, severely burning both of the Millers. Mr. Miller died from his injuries on July 22, 2001.

On July 21, 2004, Mrs. Miller, individually and as special administrator of the estate of Vincent Miller, filed a survival claim and a wrongful-death claim against Centerpoint, the Wests, and additional defendants who are no longer in the case. See Miller I, supra. Centerpoint filed a motion to dismiss, alleging that both the survival and wrongful-death claims were barred by the statute of limitations. The circuit court granted Centerpoint's motion on January 18, 2005. Mrs. Miller appeals the court's order.

On January 27, 2005, the Wests filed a motion for summary judgment, alleging that Mrs. Miller's claims were barred by the statute of limitations and that she could not establish breach of any duty owed by the Wests to Mr. Miller. The Wests attached a copy of the lease and a portion of Mrs. Miller's deposition in support of their motion. Mrs. Miller filed a response and brief, arguing that there were sufficient facts alleged in the complaint to take the matter to a jury. She did not attach any exhibits to her response. The circuit court held a hearing on March 31, 2005. On April 8, 2005, the circuit court entered an order granting the Wests' motion for summary judgment and dismissing Mrs. Miller's complaint against the Wests, holding that Mrs. Miller's claims were barred by the statute of limitations, that Mr. Miller was a licensee on the Wests' premises, that the Wests did not breach any duty allegedly owed to Mr. Miller, and that there was no genuine issue of fact remaining to be decided. Mrs. Miller appeals from this order.

Centerpoint's Motion to Dismiss

For her first point on appeal, Mrs. Miller argues that the trial court erred in dismissing her wrongful-death claim against Centerpoint.² When reviewing a circuit court's decision on a motion to dismiss, the facts alleged in the complaint are treated as true and are reviewed in the light most favorable to the plaintiff. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). In order to prevail on a motion to dismiss on the basis of limitations, the complaint must be barred on its face. Filyaw v. Bouton, 87 Ark. App. 320, 323-24, 191 S.W.3d 540, 542 (2004). The parties agree that this point on appeal presents purely a question of law and that the appropriate standard of review is therefore de novo. See Sanford v. Sanford, 355 Ark. 274, 137 S.W.3d 391 (2003) (finding that a trial court's conclusion on a question of law is given no deference on appeal).

We turn first to the statute governing wrongful-death claims. It states that "[e]very action authorized by this section shall be commenced within three (3) years after the death of the person alleged to have been wrongfully killed." Ark.Code Ann. § 16-62-102(c)(1) (Repl.2005) (emphasis added). Vincent Miller died on July 22, 2001. Mrs. Miller filed a complaint for wrongful death on July 21, 2004, within three years after the death of Mr. Miller. Centerpoint argued in its motion to dismiss, and the circuit court held, that Mrs. Miller's wrongful-death claim was derivative of the survival claim, which expired on July 9, 2004, three years from the date of the accident. See O'Mara v. Dykema, 328 Ark. 310, 942 S.W.2d 854 (1997); Smith v. Missouri Pac. R.R. Co., 175 Ark. 626, 1 S.W.2d 48 (1927). Mrs. Miller claims that the circuit court misapplied the Arkansas case law on this issue and that we should reverse its decision. We agree and reverse.

A brief overview of the difference between a wrongful-death claim and a survival claim is helpful in this case. There are two causes of action that arise when a person's death is caused by the negligence of another: (1) a cause of action for the estate under the survival statute, Ark.Code Ann. § 16-62-101, and (2) a cause of action for the statutory beneficiaries under the wrongful-death statute, Ark. Code Ann. § 16-62-102. Meredith v. Buchman, 101 F.Supp.2d 764 (E.D.Ark.2000)(citing Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968)). "An action for wrongful death brought by a plaintiff in his capacity as an administrator pursuant to Ark.Code Ann. § 16-62-102 involves neither the same action, nor the same plaintiff as in a survival action brought by the same person in his individual capacity pursuant to Ark.Code Ann. § 16-62-101." St. Paul Mercury Ins. Co. v. Cir. Ct. of Craighead County, 348 Ark. 197, 205, 73 S.W.3d 584, 589 (2002). A survival claim is simply a claim by the injured party that would have ended upon his death at common law. The legislature enacted a survival statute allowing those claims to survive the injured party's death. See Myers v. McAdams, 366 Ark. 435, 236 S.W.3d 504 (2006).

In Matthews v. Travelers Indemnity Insurance Co., 245 Ark. 247, 250, 432 S.W.2d 485, 488 (1968), the supreme court indicated that a claim for wrongful death is to some extent derivative of a survival action in that "it [a wrongful-death claim] may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime" or "by the running of the applicable statute of limitations during the injured person's lifetime." In Matthews, the decedent's husband brought two separate causes of action for medical malpractice against the defendant: a survival action on behalf of his wife for the physical and mental anguish suffered by her before her death and a wrongful-death action for his own loss of consortium and mental anguish. The supreme court held that, while the survival claim was barred by the two-year malpractice statute of limitations, the wrongful-death claim was not barred as it was brought within three years of the death of the injured party.³

In Estate of Hull v. Union Pacific Railroad Co., 355 Ark. 547, 141 S.W.3d 356 (2004), the supreme court dismissed a wrongful-death suit, holding that settlement with the defendant of the decedent's lawsuit extinguished the wrongful-death claim against the same defendant. In Estate of Hull, Sharon Hull was a passenger in a car that was involved in an accident in 1996 with a train operated by Union Pacific. Ms. Hull's guardian settled with Union Pacific and released all liability and claims related to the accident. After Ms. Hull's death in 1999, the trial court dismissed a wrongful-death suit filed by her estate, holding that the 1996 settlement and release barred any future suit. The supreme court stated that a "suit by an injured party, reduced to a final judgment, extinguishes any wrongful death claim against identical defendants based on identical allegations of fault." Id. at 551, 141 S.W.3d at 358 (emphasis added). The court said that because "the wrongful-death statute is derivative in nature from the original tort, and since the original right of the decedent was settled and thus, no longer preserved, the defense of a prior settlement with the decedent can be imposed by Union Pacific in the wrongful-death action." Id. at 553, 141 S.W.3d at 360.

Finally, in Brown v. Pine Bluff Nursing Home, 359 Ark. 471, 199 S.W.3d 45 (2004), the most recent case in which the supreme court has addressed the derivative nature of a wrongful-death claim, the court upheld the trial court's dismissal of a wrongful-death claim because it was derivative of the decedent's negligence action. In Brown, a seventy-two-year-old man, Ed Thomas, wandered away from his nursing home on January 24, 1998, and was never found. On September 14, 2000, Thomas's daughter and guardian, Edna Thomas Brown, filed a negligence suit against the nursing home,...