Suber by Suber v. Ohio Medical Products, Inc.

• Decision Date: 30 May 1991
• Docket Number: No. C14-90-0069-CV,C14-90-0069-CV
• Parties: Martin SUBER and Craig Suber, Minors, by Next Friend, Craig SUBER, Craig Suber, Individually, and Jane Kirby, Appellants, v. OHIO MEDICAL PRODUCTS, INC., Airco, Inc., Ohio Medical Products, a Division of Airco, Inc., Ohmeda Group, a Division of the Boc Group, Inc., the State of Texas, the University of Texas Medical Branch at Galveston, John Sealy Hospital, and Harvey Slocum, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 646

811 S.W.2d 646

Martin SUBER and Craig Suber, Minors, by Next Friend, Craig SUBER, Craig Suber, Individually, and Jane Kirby, Appellants, v. OHIO MEDICAL PRODUCTS, INC., Airco, Inc., Ohio Medical Products, a Division of Airco, Inc., Ohmeda Group, a Division of the Boc Group, Inc., the State of Texas, the University of Texas Medical Branch at Galveston, John Sealy Hospital, and Harvey Slocum, Appellees.

No. C14-90-0069-CV.

Court of Appeals of Texas Houston (14th Dist.).

May 30, 1991.

Rehearing Overruled June 27, 1991.

David D. Williams, Houston, W.C. Roberts, Jr., Dallas, for appellants.

Randall E. Butler, Houston, Delmar L. Cain, Austin, Stephen R. Lewis, Jr., Mary C. Thompson, Galveston, for appellees.

Before the court en banc.

OPINION

PAUL PRESSLER, Justice.

A summary judgment was granted holding that surviving beneficiaries may not maintain a wrongful death cause of action where the decedent recovered a judgment for personal injuries before her death. The decedent's minor children, husband and mother appeal. On January 17, 1991, a panel of this court issued a majority opinion reversing the judgment of the trial court, with one justice dissenting. On rehearing en banc, the opinion of January 17, 1991 is withdrawn and the following opinion is substituted affirming the judgment of the trial court.

While undergoing minor surgery at John Sealy Hospital in Galveston County, Christy Suber received an overdose of anesthetic gases, resulting in physical and mental injuries. While she was alive, though comatose, Christy Suber's husband, Craig Suber, brought suit on her behalf against Ohio Medical Products, Inc., a division AIRCO, Inc., and OHMEDA, a division of the BOC Group, Inc. (collectively "Ohmeda"), and against Harvey Slocum, M.D., the State of Texas, the University of Texas Medical Branch, and John Sealy Hospital (collectively "the hospital defendants"). At the close of the plaintiffs' case, the hospital defendants moved for instructed verdict on the ground that the plaintiffs had not raised a material fact issue against them. The trial court granted these motions. Trial proceeded as to Ohmeda and the jury found Ohmeda's products, the Modulus I Anesthesia Gas Machine and the Vernitrol Vaporizer, defectively designed, and found Ohmeda negligent in its design of the machine and its failure to warn. The trial court entered judgment for the Subers, awarding damages of more than $6,000,000. This judgment was affirmed on appeal to this court. See Ohio Medical Products, Inc. v. Suber, 758 S.W.2d 870 (Tex.App.--Houston [14th Dist.] 1988, writ denied).

Christy Suber died on February 1, 1989. The instant wrongful death action ensued against the same defendants as in the prior personal injury suit. All defendants filed motions for summary judgment contending appellants' claims were barred by res judicata, satisfaction and release, and by the language of the Texas Wrongful Death Act. The trial court granted these motions.

The standard of review of a summary judgment is whether the summary judgment proof establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex.1985). In reviewing the summary judgment proof, all evidence favorable to the non-movant must be taken as true, indulging all inferences and resolving all doubts in the non-movant's favor. Id.

Appellants first challenge the summary judgment on the ground that the trial court incorrectly construed the Texas Wrongful Death Act to preclude the instant cause of action. There are no Texas cases presented addressing, other than in dicta, the precise issue of whether a judgment for damages in a personal injury action brought by the decedent during his life bars a subsequent wrongful death action by the statutory beneficiaries.

Section 71.003(a) of the Act, provides that the Wrongful Death Act applies "only if the individual injured would have been entitled to bring an action for the injury if he had lived." TEX.PRAC.REM.CODE ANN. § 71.003(a) (Vernon 1986). Appellants contend that this language refers to the necessity of a tortious act causing injury and not to procedural bars to the maintenance of suit. Appellees, on the other hand, point to a long line of Texas case law holding that a wrongful death action derives from the decedent's cause of action. See, e.g., Davenport v. Phillip Morris, Inc., 761 S.W.2d 70, 71 (Tex.App.--Houston [14th Dist.] 1988, no writ). These cases hold that, if a decedent could not have brought a cause of action if he survived the injuries, the statutory beneficiaries likewise have no cause of action for wrongful death. See Schwing v. Bluebonnet Express, Inc., 489 S.W.2d 279, 281 (Tex.1973); Davenport, 761 S.W.2d at 71.

Due to the derivative nature of the wrongful death action, Texas cases have held that any defense to a decedent's cause of action for his own injuries is applicable in a subsequent action for wrongful death. See Bounds v. Caudle, 560 S.W.2d 925, 926 (Tex.1977) (interspousal tort immunity); Thompson v. Fort Worth and R.G.Ry.Co., 97 Tex. 590, 80 S.W. 990, 991 (1904) (settlement and release); Davenport, 761 S.W.2d at 72 (statute of limitations). In Thompson v. Fort Worth and R.G.Ry.Co., 97 Tex. 590, 80 S.W. 990 (1904), the decedent had settled his claim for injuries and had signed a release. Following his death, his widow and children brought a wrongful death action. Id., 80 S.W. at 991. In holding that the release barred the subsequent wrongful death claim, the court explained:

The language, "and the act, negligence or default is such as would if death had not ensued have entitled the party injured to maintain an action for such injury," found in [the then existing wrongful death statute], renders it practically certain that the purpose of the Legislature was to furnish a remedy for the injury caused by the death to those dependent upon the deceased, by giving them an action in lieu of that which he might have maintained but did not assert, but not to provide double compensation for one wrong.

Id., 80 S.W. at 992. The Thompson court based its holding on cases from other jurisdictions construing statutes similar to the Texas statute which reasoned:

[t]here is but one cause of action under the law, for which there can be but one compensation; hence, if the injured party sues and recovers compensation for his injuries, or compromises his claim with the wrongdoer, and for a valuable consideration executes a release therefor, the cause of action is thereby satisfied, and no right of action remains to the persons named in the statute.

Id., 80 S.W. at 991-92. See also Blount v. Gulf, C. & S.F.Ry.Co., 82 S.W. 305, 306 (Tex.Civ.App.--1904, no writ) (citing the above-quoted language and holding that decedent's settlement and release during his lifetime barred the beneficiaries' subsequent wrongful death action).

The Fifth Circuit Court of Appeals has addressed the issue before us in Delesma v. City of Dallas, 770 F.2d 1334 (5th Cir.1985). In Delesma, the decedent had brought an action for his injuries during his lifetime and the trial court had rendered a take nothing judgment on his claims. Id. at 1335. After his death, his children brought a wrongful death action under the Texas Wrongful Death Act and 42 U.S.C. § 1983. Id. at 1335-36. In holding that the prior judgment in decedent's action for injuries barred the subsequent wrongful death claim, the court stated:

[U]nder the Wrongful Death Act, a wrongful death claim derives wholly from the cause of action that the decedent could have asserted for personal injuries had he lived. The survivors thus occupy the decedent's legal shoes. Any defense that would have defeated a personal injury claim during [the decedent's] lifetime likewise vanquishes their claims.

Id. at 1338. Like the decedent in Delesma, Christy Suber pursued her action for personal injuries to judgment. Thus, res judicata would have barred a second suit by Christy Suber for her injuries since there would have been an identity of parties, issues and subject matter. See Id.; Bonniwell v. Beech Aircraft Corp. 663 S.W.2d 816, 818 (Tex.1984). Because Christy Suber could not have brought another action if she had survived, TEX.CIV.PRAC. & REM.CODE ANN. § 71.003(a) precludes appellants from maintaining a wrongful death action.

This holding is consistent with prior Texas case law construing the Wrongful Death Act. Appellants' assertion that such a construction defeats the remedial purpose of the statute is incorrect. As the court stated in Witty v. American Gen.Capital Distrib., Inc., 727 S.W.2d 503, 504 (Tex.1987): "[A]lthough our wrongful death statute is remedial in nature and must be liberally construed, we may not rewrite the statute in the guise of construing it." By enacting the Wrongful Death Act, the legislature provided a remedy to certain beneficiaries that was unavailable under the common law. Elliott v. City of Brownwood, 106 Tex. 292, 166 S.W. 1129, 1129 (1914). This remedy is available to the beneficiaries, however, only if it would have been available to the decedent, had he survived. See TEX.CIV.PRAC. & REM.CODE ANN. § 71.003(a) (Vernon 1986). Thus, the express language of the statute reflects the legislature's intention to limit the availability of the remedy. This express limitation does not negate the remedial purpose of the statute.

Appellants also claim that the summary judgment conflicts with the holding in Sea-Land Serv., Inc. v. Gaudet, 414 U.S. 573, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). In Sea-Land, the decedent had been injured while working as a longshoreman on a vessel in Louisiana navigable waters. Id. at 574, 94 S.Ct. at 809. The decedent had obtained a judgment for damages in his action for injuries initiated during his lifetime and the trial court had dismissed the wrongful death action brought by the decedent's beneficiaries. Id. The...