Perry v. Eagle-Picher Industries, Inc.
| Decision Date | 03 July 1990 |
| Docket Number | No. 89-993,EAGLE-PICHER,89-993 |
| Citation | 52 Ohio St.3d 168,556 N.E.2d 484 |
| Parties | PERRY et al., Appellees, v.INDUSTRIES, INC. et al.; Owens-Illinois, Inc. et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The dismissal of a decedent's personal injury claim for failure to substitute the estate as a party plaintiff pursuant to Civ.R. 25 does not affect claims for loss of consortium or wrongful death which are joined in the same action as required by Civ.R. 19.1.
2. The death of a party to a civil action is suggested upon the record by filing a statement of the fact of the death with the court and serving it on the decedent's counsel and all other parties pursuant to Civ.R. 5. (Civ.R. 25, construed.)
3. A dismissal for failure to substitute a decedent's personal representative pursuant to Civ.R. 25(A)(1) is a dismissal without prejudice for lack of personal jurisdiction.
On April 27, 1987, Lawrence M. Perry and appellee Dorothea Perry, his wife, filed a civil action against seven corporations, including, among others, defendants-appellants, Owens-Illinois, Inc. and Service Products, Inc. of Toledo. The complaint alleged that Mr. Perry was injured by exposure to asbestos materials manufactured or sold by the defendants, and sought damages. Mrs. Perry asserted a separate claim for loss of consortium.
Mr. Perry died on September 18, 1987. On September 23, counsel for some of the defendants suggested Mr. Perry's death on the record. Mrs. Perry was appointed executrix of his estate, though the record does not reveal the exact date.
On January 6, 1988, some of the defendants moved to dismiss the action with prejudice for failure to substitute Mr. Perry's estate as a party plaintiff. The court did not immediately rule on this motion.
On February 2, 1988, Mrs. Perry filed a "Motion for Leave to File Instanter First Amended Complaint." The accompanying amended complaint listed Mrs. Perry, both individually and as executrix of her husband's estate, as plaintiff. It repeated the material allegations and causes of action found in the original complaint, adding a claim for wrongful death. Again, the court made no immediate ruling on this motion.
On September 30, 1988, the trial court dismissed the entire action with prejudice for failure to substitute the estate as a party plaintiff. The court of appeals reversed, holding that the ninety-day time limit for substitution was tolled because the suggestion of death was not properly served. Finding its judgment to be in conflict with the judgments in Barrett v. Franklin (1986), 32 Ohio App.3d 51, 513 N.E.2d 1361, and Norris v. Weir (1987), 35 Ohio App.3d 110, 520 N.E.2d 10, the appellate court certified the record of the case to this court for review and final determination.
Robert E. Sweeney Co., L.P.A., and Matthew T. Brady, Cleveland, for appellees.
Fuller & Henry, Robert A. Bunda, Mark P. Prajsner and Peggy A. Whipple, Toledo, for appellant Owens-Illinois, Inc.
Cooper, Straub, Walinski & Cramer and Joseph P. Dawson, Toledo, for appellant Service Products, Inc. of Toledo.
For the reasons which follow, we find that the trial court properly dismissed Mr. Perry's personal injury claim for failure to substitute his estate within the time allowed by Civ.R. 25(A)(1), though such dismissal should have been without prejudice. Accordingly, we reverse the judgment of the court of appeals in part and remand the cause to the trial court.
The lawsuit before us includes three distinct causes of action: Mr. Perry's claim for personal injuries, which survived his death pursuant to R.C. 2305.21 and 2311.21 ("the survival action"); Mrs. Perry's derivative action for loss of consortium; and the action for wrongful death, which is prosecuted by Mrs. Perry (in her capacity as Mr. Perry's personal representative) pursuant to R.C. Chapter 2125. Here, the trial court dismissed both the survival action and the loss of consortium claim, and implicitly denied leave to assert the wrongful death claim, for failure to timely substitute Mr. Perry's personal representative as a party plaintiff.
Civ.R. 25(A)(1) provides that, when there is a failure to substitute the decedent's personal representative within the time limit prescribed in the rule, "the action shall be dismissed as to the deceased party." (Emphasis added.) Impliedly, the court should not dismiss the claims of any party other than the deceased.
In the instant case, only the survival action was a claim of the deceased party. While Civ.R. 19.1(A)(2) requires that a spouse's claim for loss of consortium be brought in the same action as a claim for personal injuries, it is a distinct cause of action brought by a different party and subject to a different statute of limitations. Kraut v. Cleveland Ry. Co. (1936), 132 Ohio St. 125, 7 O.O. 226, 5 N.E.2d 324.
In a case with two (or more) plaintiffs, one of whom has died, only the decedent's claims should be affected by the failure to substitute the decedent's personal representative. We agree with the parties that it was error for the trial court to dismiss the loss of consortium action.
Though both are prosecuted by the decedent's personal representative, survival and wrongful death actions have different purposes. Jones v. Wittenberg University (C.A.6, 1976), 534 F.2d 1203. In the survival action, the decedent's personal representative is enforcing a claim of the decedent for the benefit of his estate. Damages in a survival action are awarded to compensate for the decedent's pain and suffering and expenses while he was alive. Id. at 1213.
"In an action for wrongful death, the personal representative is a nominal party and the statutory beneficiaries are the real parties in interest." Burwell v. Maynard (1970), 21 Ohio St.2d 108, 110, 50 O.O.2d 268, 269, 255 N.E.2d 628, 629. Damages for wrongful death are awarded to the decedent's family to compensate for the injury they suffered as a result of the decedent's untimely death. Jones, supra, at 1213.
In the instant case, appellees filed a document captioned "Motion for Leave to File Instanter First Amended Complaint," which attempted to assert a claim for wrongful death in addition to those asserted in the original complaint. The spirit of the Civil Rules, in which "emphasis is placed upon liberal construction rather than upon technical interpretation," Staff Note to Civ.R. 1(B), mandates that we treat appellees' motion as a combination of (1) a motion for leave to assert the wrongful death claim in a supplemental pleading and (2) a motion to substitute Mrs. Perry as a party in the survival action.
Supplemental pleadings are governed by Civ.R. 15(E), which provides in pertinent part:
"Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. * * * "
Here, Mr. Perry's death occurred after the filing of the original complaint, which was the pleading sought to be supplemented. A copy of the de facto motion to supplement the pleadings was served on all other parties, which satisfied the notice requirement. The motion and pleading were filed within the statute of limitations for wrongful death claims. Civ.R. 19.1(A)(1) requires joinder of survival and wrongful death actions arising from the same wrongful act, such as those at issue here.
Considering all of the above, we conclude that the trial court abused its discretion by not granting leave to bring the wrongful death claim in a supplemental pleading. The dismissal of a decedent's personal injury claim for failure to substitute the estate as a party plaintiff pursuant to Civ.R. 25 does not affect claims for loss of consortium or wrongful death which are joined in the same action as required by Civ.R. 19.1.
Dismissal of the Survival Claim
The procedure by which a decedent's personal representative is made a party to a pending action is set forth in Civ.R. 25, which states in pertinent part:
The trial court dismissed the survival claim on the ground that appellees failed to move for substitution within ninety days of the filing of the suggestion of death. The court of appeals reversed because it believed that the suggestion of death was ineffective to start the running of the ninety-day time limit. The court below read Civ.R. 25(A)(1) to require service of the suggestion of death on the decedent's successor in interest when the suggestion is made by anyone other than the decedent's counsel of record. We disagree with this...
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