Pace v. Armstrong World Industries, Inc.

• Decision Date: 15 March 1991
• Citation: 578 So.2d 281
• Parties: Henry Leon PACE, individually and as personal representative of the heirs and estate of Joseph Pace, deceased v. ARMSTRONG WORLD INDUSTRIES, INC., et al. 89-391.
• Court: Alabama Supreme Court

Page 281

578 So.2d 281

Henry Leon PACE, individually and as personal representative of the heirs and estate of Joseph Pace, deceased v. ARMSTRONG WORLD INDUSTRIES, INC., et al.

89-391.

Supreme Court of Alabama.

March 15, 1991.

Brent M. Rosenthal and Russell W. Budd of Baron & Budd, Dallas, Tex., and S.C. Middlebrooks of Gardner, Middlebrooks & Fleming, Mobile, for appellant.

W. Michael Atchison, E. Martin Bloom and Allan R. Wheeler of Starnes & Atchison, Birmingham, for appellee The Celotex Corp.

Larry L. Simms and Gary M. Kramer of Gibson, Dunn & Crutcher, Washington, D.C., and C. Paul Cavender of Crosby Saad & Beebe, Mobile, for appellees Fibreboard Corp., Owens-Illinois, Inc. and Pittsburgh Corning Corp.

Jerome A. Cooper, Thomas N. Crawford, Jr., Frederick T. Kuykendall III, Joe R. Whatley and Jay Smith of Cooper, Mitch, Crawford, Kuykendall & Whatley, Birmingham, for amici curiae AFL-CIO of Alabama, Alabama Democratic Conference, Central Alabama Bldg. and Const. Trades Council, Dist. 20, United Mine Workers of America, Dist. 36, United Steelworkers of America, Fifth Dist. Intern. Broth. of Electrical Workers, AFL-CIO, Greater Birmingham Ministries, Jefferson County Citizens Coalition, Intern. Union of Brick Layers and Allied Craftsmen No. 1 of Alabama, Laborers' Local 559, Laborers' Intern. Union of North America, Local Union No. 48, Sheet Metal Workers Intern. Ass'n, Local Union No. 91, United Ass'n of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the U.S. and Canada, Local Union No. 127, United Broth. of Carpenters and Joiners of America, AFL-CIO.

KENNEDY, Justice.

Pursuant to Rule 18, A.R.App.P., the United States District Court for the Southern District of Alabama certified a question to this Court. We consented to answer the question and ordered the parties to submit briefs containing their arguments. The parties having done so, and the matter having been orally argued to this Court, we will set out the pertinent facts and answer the question.

The certificate issued by the United States District Court contained the following statement of facts:

"Joseph Pace was a boilermaker at Alabama Dry Dock and Shipbuilding Co. from 1938 to 1966, and was allegedly exposed to asbestos-containing products during that time. His last alleged exposure to asbestos occurred in 1966. In June of 1985 he was diagnosed with chronic obstructive lung disease and probable asbestosis.

"On May 29, 1986, he filed suit in the United States District Court for the Northern District of Texas, seeking damages for asbestosis allegedly caused by exposure to asbestos-containing products, manufactured by the defendants in this action. On motion of the defendants, pursuant to 28 U.S.C. 1404(a), this action was transferred to the United States District Court for the Southern District of Alabama. Under Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964), a transferee federal district court must apply the substantive law that the transferor court would have applied had the action not been transferred. Under Klaxon Co. v. Stentor Manufacturing Co., 313 U.S. 487 [61 S.Ct. 1020, 85 L.Ed. 1477] (1941), the District Court for the Northern District of Texas would have been obligated to apply Texas conflict of laws principles if this action had remained in that district. Applying those principles, this court held that the Texas court would have applied Alabama substantive law and Texas procedural law in this action. Also, over defendants' objections, this court held that the Texas statute of limitations governed Pace's personal injury claim, as a matter of procedural law, and that the claim was timely filed.

"Plaintiff died on December 25, 1988, during the pendency of his personal injury action. His personal representative filed an amended complaint on May 30, 1989, alleging that Mr. Pace's death was a proximate result of his exposure to asbestos and seeking recovery under negligence and extended liability theories. Defendant moved to dismiss the complaint, noting that Alabama's wrongful death statute of limitations is contained in the statute itself, and is therefore substantive, that the wrongful death action is time barred because plaintiff's decedent could not have commenced a personal injury action in Alabama at the time of his death, and that the Alabama wrongful death statute requires that any such action be prosecuted solely in Alabama. Plaintiff argues that this action is not time barred because the Alabama wrongful death statute does not require the underlying personal injury action to be available in Alabama. Plaintiff argues that since the Alabama statute says 'provided the testator ... could have commenced an action ...,' it does not require that plaintiff must have been able to commence such action in Alabama. Plaintiff further argues that since plaintiff's decedent did, in fact, successfully commence a personal injury action and was prosecuting such action in this court at the time of his death, the personal representative may convert such action to a wrongful death action."

Since these facts present a case of first impression, we consented to answer the following certified question:

"Whether the inability of the decedent to [commence] a personal injury action in the State of Alabama prior to the time of death precludes amendment of his existing personal injury action by the decedent's representative so as to bring an action for wrongful death under Ala.Code 1975, § 6-5-410?"

Alabama's wrongful death statute, § 6-5-410, Ala.Code 1975, states, in pertinent part:

"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." (Emphasis added.)

This Court has stated, and the parties agree, that the fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature in enacting the statute. Clark v. Houston County Commission, 507 So.2d 902 (Ala.1987); Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985); League of Women Voters v. Renfro, 292 Ala. 128, 290 So.2d 167 (1974). In construing the statute, this Court should gather the intent of the legislature from the language of the statute itself, if possible. Clark v. Houston County Commission, supra; Advertiser Co. v. Hobbie, supra; Morgan County Board of Education v. Alabama Public School & College Authority, 362 So.2d 850 (Ala.1978). We may also look to the reason and necessity for the statute and the purpose sought to be obtained by enacting the statute. Ex Parte Holladay, 466 So.2d 956 (Ala.1985).

The purpose of Alabama's wrongful death statute is to protect human life and prevent homicides by the wrongful act, omission, or negligence of persons or corporations. Mattison v. Kirk, 497 So.2d 120 (Ala.1986); Black Belt Wood Co. v. Sessions, 514 So.2d 1249 (Ala.1986). The reason and necessity for the act was to provide a remedy to the family of a decedent whose death was caused by the wrongful act or omission of another. In Mattison v. Kirk, supra, this Court discussed this reasoning at length:

"At common law, personal injury actions did not survive the death of the injured party. Consequently, it was cheaper for the defendant to kill the plaintiff than to injure him, leaving the bereaved, and often financially destitute, family of the victim without a remedy. This intolerable situation was ended in England by the passage of the Fatal Accidents Act of 1846, otherwise known as Lord Campbell's Act. W. Keeton, Prosser & Keeton on The Law of Torts, § 127 at 945 (5th ed. 1984). This enactment created a new cause of action upon the death of the injured party, provided the deceased could have maintained an action before his death. Every American state now has a statutory remedy for wrongful death. Id."

497 So.2d at 124.

Thus, as we have said, § 6-5-410 created a right of action in the name of the personal representative of the decedent. In this case, we must interpret the scope of the proviso in § 6-5-410 that restricts that right. The proviso requires that, in order for a personal representative to be able to bring an action for wrongful death, the decedent must have been able to "[commence] an action for such wrongful act, omission or negligence if it had not caused death."

In discerning and effectuating the intent of the legislature, we must bear in mind two applicable rules of statutory construction, which we set out in their entirety. The first rule concerns the construction of provisos generally:

"Provisos serve the purpose of restricting the operative effect of statutory language to less than what its scope of operation would be otherwise. They are construed using the same general criteria of decision applied to other kinds of provisions. However, where there is doubt concerning the extent of the application of the proviso on the scope of another provision's operation, the proviso is strictly construed. The reason for this is that the legislative purpose set forth in the purview of an enactment is assumed to express the legislative policy, and only those subjects expressly exempted by the proviso should be freed from the operation of the statute."

Sutherland Stat. Const., § 47.08 (4th ed.) (footnotes omitted).

The second rule concerns a court's supplying words said to be omitted from a statute:

"It is a general rule that the courts may not, by construction, insert words or phrases in a statute, or supply a casus omissus by giving force and effect to the language of the statute when applied to a subject about which nothing whatever is said, and...