Strother v. Dist. of Columbia

• Decision Date: 29 April 1977
• Docket Number: No. 9815.,9815.
• Parties: Oliver William STROTHER, Administrator of the Estate of Charles Strother, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

372 A.2d 1291

Oliver William STROTHER, Administrator of the Estate of Charles Strother, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 9815.

District of Columbia Court of Appeals.

Argued January 21, 1976.

Decided April 29, 1977.

COPYRIGHT MATERIAL OMITTED

Patrick J. Moran, Washington, D. C., for appellant.

Dennis McDaniel, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., entered an appearance for appellee.

Before KELLY, GALLAGHER and HARRIS, Associate Judges.

GALLAGHER, Associate Judge:

This action, brought under the Survival Act (D.C.Code 1973, § 12-101) and the Wrongful Death Act (D.C.Code 1973, §§ 16-2701 to -2703) is before us on appeal from the Civil Division of the Superior Court. The trial court granted defendant-appellee's motion to dismiss and thereafter denied plaintiff-appellant's motion for leave to file an amended complaint on the ground that appellant's claims were barred by the statute of limitations. We reverse and remand.

On November 16, 1973, appellant's father, a patient at D.C. General Hospital, died as a result of injuries allegedly caused by negligent acts and omissions of members of the hospital staff. Some six months later, on May 14, 1974, appellant commenced this action for damages by filing a complaint as plaintiff "Individually and on behalf of the Estate of Charles Strother Deceased." [Emphasis added.] Although styled simply "Complaint for Wrongful Death," this pleading contained, in addition to brief factual allegations, citations to the Survival Act (D.C.Code 1973, § 12-101)¹ as well as the Wrongful Death Act (D.C.Code 1973, §§ 16-2701 to -2703)² as grounds for relief. At the time the original complaint was filed no letters of administration had issued.

Appellee's original answer stated that "plaintiff lacks standing to bring this action" and later, on March 7, 1975, this defense was reasserted in a motion to dismiss for failure to state a claim upon which relief can be granted. Super.Ct.Civ.R. 12(b)(6). The bases of the motion were (1) that more than one year had passed since the death occurred and appellant had not been officially designated as administrator of his father's estate, and (2) that, as a result, appellant had not complied with the one-year limitations provision of the Wrongful Death Act,³ even though the complaint had been filed only six months after the death.

At a hearing on March 21, 1975, the trial court granted appellee's motion to dismiss with leave to file an amended complaint within 20 days. Three days later, on March 24, 1975, appellant received letters of administration from the Probate Division of the Superior Court. Thereafter, appellant tendered, within the time allotted by the court, a proposed amended complaint which reiterated in more detail the original Survival Act and Wrongful Death Act claims and, in addition stated that the action was brought by appellant "Individually and in his Capacity as Administrator of the Estate of Charles Strother." [Emphasis added.] Appellant's motion for leave to file the amended complaint was denied after the trial court found that "if the proposed amended complaint were to be filed, the Court would be compelled to dismiss [it] on the ground of the statute of limitations, and that the filing of the amended complaint would therefore be futile" because the amended complaint was tendered more than one year after the death involved. At the hearing, the trial court rejected appellant's contention that the amended complaint, alleging the changed capacity of the plaintiff, was timely under the "relation back" concept embodied in Super.Ct.Civ.R. 15(c).⁴

We observe, as a preliminary matter, that the remedies provided by the Survival Act and the Wrongful Death Act are not mutually exclusive and may be pursued simultaneously. Sornborger v. District Dental Laboratory, Inc., 105 U.S.App.D.C. 290, 266 F.2d 694 (1959).⁵ Thus, in the District of Columbia, negligent conduct resulting in death may give rise to two independent claims: one under the Survival Act, which allows recovery of damages (excluding pain and suffering) arising from personal injury to the decedent, and another under the Wrongful Death Act which allows recovery for pecuniary loss to the decedent's next of kin (e. g., loss of support) occasioned by the death. The Survival Act permits a claim which accrued to a decedent before his death to be enforced after his death by his "legal representative." On the other hand, the Wrongful Death Act creates a new cause of action which arises on the death of the decedent and is enforced by his "personal representative." D.C.Code 1973, § 16-2702.

I. The Survival Act Claim

Appellee's contention that appellant's original complaint did not include a claim under the Survival Act, D.C.Code 1973, § 12-101, is without foundation. Though the original complaint left much to be desired from the standpoint of form, it asserted that it was being brought under the Survival Act (among other statutory provisions) and, read as a whole, in light of the principles of notice pleading, it informed appellee of the existence of such a claim. See Super.Ct.Civ.R. 8(a).

Furthermore, appellee's contention that the Survival Act claim was void ab initio because appellant was without capacity to assert that cause of action is without merit. D.C.Code 1973, § 12-101 permits rights of action which accrued to a deceased person before his death to survive or to be pursued by that person's "legal representative." The underlying theory of appellee's position is that the Survival Act claim in the original complaint was a nullity because appellant was not yet administrator of his father's estate when the action was commenced. Thus, appellee asserts, essentially, that the term "legal representative" is synonymous with "personal representative" and that since appellant was not the decedent's personal representative at the time of the filing of the original complaint, the survival claim is barred by the statute of limitations. We believe that neither of these contentions is correct.

First, appellee's narrow interpretation of the term "legal representative" is contrary to the law of this jurisdiction. Thomas v. Doyle, 88 U.S.App.D.C. 95, 187 F.2d 207 (1950). That decision holds that a legal representative under the Survival Act may be any person who, whether by virtue of testamentary act or operation of law, stands in the place of the decedent with respect to his property,⁶ and that Congress did not intend to restrict the right to bring a survival action to duly appointed personal representatives, i.e., executors or administrators.⁷ Hence, as an heir-at-law, appellant was a proper party to sue on the Survival Act claim at the time of the filing of the original complaint, although he had not then been qualified as administrator of his father's estate. Thomas v. Doyle, supra, at 98, 187 F.2d at 210. Moreover, even at the time the amended complaint was tendered, the Survival Act claim was timely since it was filed within three years after the decedent would have had a claim if he had lived. D.C.Code 1973, § 12-301(8).⁸

II. The Wrongful Death Act Claim

We turn now to the issue of whether appellant's amendment seeking to reflect a Change in the capacity in which he was suing under the Wrongful Death Act relates back under Super.Ct.Civ.R. 15(c) to the filing of the original complaint.

The trial court, in denying leave to amend, relied principally upon three decisions in this jurisdiction: Paris v. Braden, 98 U.S.App.D.C. 219, 234 F.2d 40 (1956); Harris v. Embrey, 70 App.D.C. 232, 105 F.2d 111 (1939); and Fleming v. Capital Traction Co., 40 App.D.C. 489 (1913). These cases are not controlling here, however, for in none of them did the court have before it the factor of the relation back of amendments under Rule 15(c), so far as it appears.⁹ The earlier two cases simply hold that a wrongful death action must fail if not brought by decedent's personal representative."¹⁰ The latest of those cases, Paris v. Braden, held that the plaintiffs, who were surviving children, but not appointed executors or administrators of the decedent, were not personal representatives within the meaning of the Wrongful Death Act. The court also found no abuse of discretion in a denial by the trial court of an application by the plaintiffs for additional time to qualify as personal representatives; but the latter point was disposed of without discussion in a single sentence, and the applicability of the relation back doctrine was not considered.

Appellant argues that because no new or different cause of action has been introduced and defendant was put on notice that he might have to defend such a claim, reason and our rules of procedure¹¹ require that he be allowed to amend his original complaint.

On the other hand, appellee, relying on several state cases,¹² argues that because appellant was not appointed administrator of the estate until after the expiration of the one-year statute of limitations, the filing of the original complaint was void ab initio due to appellant's lack of capacity to sue. He further argues that if the original complaint was void, there is nothing to which an amendment could relate back.¹³

While there is a split of authority on the issue of whether amendments seeking to change the capacity in which a plaintiff is, suing relate back to the original filing,¹⁴ federal courts and state courts which have adopted the substance of Fed.R. Civ.P. 15(c)¹⁵ have interpreted the rule as permitting relation back. E.g., Longbottom v. Swaby, 397 F.2d 45 (5th Cir. 1968); Crowder v. Gordons Transports, Inc., 387 F.2d 413 (8th Cir. 1967); Russell v. New Amsterdam Casualty Co., 303 F.2d 674 (8th Cir. 1962...