Weeks v. Cessna Aircraft Co.

Decision Date06 December 1994
Docket NumberNo. 2,No. 82047,82047,2
Citation895 P.2d 731
Parties1994 OK CIV APP 171 Bobbie Jean WEEKS, Appellant, v. The CESSNA AIRCRAFT COMPANY, a Corporation; Sky-Craft Aviation, Inc., a Corporation; and Charles Graves and Roger Graves, Individually, in Partnership, and/or d/b/a Sky-Craft Aviation, Appellees
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Appeal from the District Court of Oklahoma County, Niles Jackson, Trial Judge.

Plaintiff appeals an order of the trial court granting summary judgment to Defendants on the ground that Plaintiff was not the proper party to bring a wrongful death action.

Affirmed in Part, Reversed in Part and Remanded for Further Proceedings.

Richard D. Gibbon, Richard D. Gibbon and Associates, P.A., Tulsa, for appellant.

Burton J. Johnson, Looney, Nichols, Johnson & Hayes, Oklahoma City, for appellee Sky-Craft Aviation, Inc., Charles Graves and Roger Graves, Individually, in Partnership, and/or d/b/a Sky-Craft Aviation.

Ronald P. Williams, Morrison & Hecker, Wichita, and D. Lynn Babb, Kathleen J. Adler, Pierce Couch Hendrickson, Baysinger & Green, Oklahoma City, for appellee The Cessna Aircraft Co.

MEMORANDUM OPINION

BOUDREAU, Presiding Judge.

Plaintiff, Bobbie Jean Weeks, appeals an order of the district court granting summary judgment to Defendants, The Cessna Aircraft Company, Sky-Craft Aviation, Inc., Charles Graves and Roger Graves. The trial court dismissed Plaintiff from the suit and denied Plaintiff's request for substitution of the decedent's special administratrix as Plaintiff. In this wrongful death action, the question presented on appeal is whether the trial court erred in denying Plaintiff's motion to substitute the decedent's special administratrix as the real party in interest. Having reviewed the applicable statutes and law, we find that the trial court erred; therefore, we reverse the trial court and remand for further proceedings consistent with this decision.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff filed this action on January 4, 1993, following the death of her daughter, Helen Martin, in an airplane crash on January 5, 1991. Plaintiff brought the action "individually, on behalf of herself, the estate, and on behalf of the surviving heirs of the Deceased." Prior to filing, Plaintiff waived her right to act as special administratrix. On March 14, 1991, the probate court appointed Linda Hunter, Plaintiff's daughter, as special administratrix of the decedent's estate. Throughout this action the same attorney represented Plaintiff and the estate's special administratrix. Plaintiff alleges that this action was brought in her name individually (rather than in the name of the special administratrix) through mistake or inadvertent error.

Realizing that Hunter, rather than Plaintiff, was the special administratrix of Helen Martin's estate, Defendants moved for summary judgment. Defendants alleged that Plaintiff was not the proper party to bring a wrongful death action under Oklahoma statutes, because a special administratrix had already been appointed. The Defendants also raised the affirmative defenses of failure to state a claim upon which relief can be granted and the statute of limitations.

The trial court agreed, and entered a summary judgment for Defendants in which it dismissed Plaintiff from the action and denied Plaintiff's motion to substitute the special administratrix as Plaintiff. Plaintiff appeals from this judgment.

The status of Linda Hunter as administratrix of the decedent's estate and as the proper person to institute a wrongful death action pursuant to 12 O.S.1991 § 1053 is undisputed. The singular issue on appeal is whether the trial court erred in denying Plaintiff's request to substitute the special administratrix in this wrongful death action. This presents a question of statutory construction regarding whether substitution of parties normally permitted under 12 O.S.1991 § 2017 is applicable in a wrongful death action brought pursuant to 12 O.S.1991 §§ 1053, 1054. Statutory construction is an issue of law. Contested issues of law are reviewable in all actions by a de novo standard. An appellate court claims for itself plenary, independent and non-deferential authority to re-examine legal rulings. Salve Regina College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991).

II. SUBSTITUTION OF PARTIES IN GENERAL

The Oklahoma Pleading Code governs "all suits of a civil nature whether cognizable as cases at law or in equity except where a statute specifies a different procedure." 12 O.S.1991 § 2001. In a normal civil action, without specific statutory procedures, substitution of a plaintiff by the real party in interest is governed by 12 O.S.1991 § 2017, which provides that "[e]very action shall be prosecuted in the name of the real party in interest." When an action is not brought by the proper party, section 2017 provides:

No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder, or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

12 O.S.1991 § 2017 (emphasis added).

Substitution of plaintiffs has been liberally granted in Oklahoma where mistake or inadvertent error has caused the improper party to file an action. Saint Paul Fire and Marine Insurance Co. v. Spann, 355 P.2d 567 (Okla.1960). In Saint Paul Fire, the court explained that " 'courts should be inclined to disregard subtleties and answer technical objections to the sufficiency of a pleading in an honest effort to determine the real issues on their merits, and to try and do substantial justice to the litigants before them.' " Id. at 570 (quoting Mostenbocker v. Shawnee Gas & Elec. Co., 49 Okla. 304, 152 P. 82, 85 (1915)). Furthermore, " 'where there is no change in the cause of action and the party substituted bears some relation of interest to the original party and to the action, the substitution may be allowed, as where the substitution is of one having the legal right to sue instead of one improperly named as plaintiff.' " Id. at 571 (quoting Dierks v. Walsh, 196 Okla. 372, 165 P.2d 354 (1946)).

Oklahoma's interpretation of section 2017 is fully consistent with the construction commonly placed on Federal Rule of Civil Procedure 17, from which section 2017 derives. The advisory committee notes to the 1966 amendment to Rule 17 describe the rationale for permitting liberal substitution of the plaintiff for the real party in interest in actions brought under the Federal Rules.

The provision that no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed, after the objection has been raised, for ratification, substitution, etc., is added simply in the interests of justice. (Emphasis added).

F.R.C.P. 17, Advisory Committee Notes, 1966 Amendment. The committee notes stress that the provision "is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made." Id. The committee explains that "the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover." Id. Where the defendant's interests are protected, substitution should be allowed.

Substitution of a plaintiff for the real party in interest would normally be permitted under Oklahoma's section 2017 or Federal Rule 17, where the plaintiff asserts that the error in party name was a mistake and the real party in interest consents to the substitution. However, the case at bar concerns more than a simple substitution of parties; it deals with substitution in an action defined by statute. It is, therefore, necessary to examine Oklahoma's wrongful death statute to determine whether there are express or implied statutory clauses that prohibit substitution of parties.

III. SUBSTITUTION OF PARTIES IN WRONGFUL DEATH ACTIONS

Wrongful death actions in Oklahoma are governed by 12 O.S.1991 § 1053. Section 1053 provides that the personal representative of the decedent may maintain an action for wrongful death, and that such action must be commenced within two years. Id. In determining who may sue in a wrongful death action section 1053 must be read in conjunction with 12 O.S.1991 § 1054. Weavel v. United States Fidelity & Guar. Co., 852 P.2d 783, 784 (Okla.Ct.App.1992).

Section 1054 provides for the circumstance where "no personal representative is or has been appointed." In such cases, "the action provided in [section 1053] may be brought by the widow, or where there is no widow, by the next of kin of such deceased." Sections 1053 and 1054, read together, indicate a hierarchy of persons who may sue in a wrongful death action. First, a personal representative, if appointed, is the proper person to bring suit. But if no personal representative is appointed, then the spouse is the proper person to bring suit. H.L. Maness Truck Lines v. Lemmons, 408 P.2d 288, 291 (Okla.1965). The next of kin should bring the action only when there is neither a personal representative nor a spouse.

Though sections 1053 and 1054 do not contain express provisions prohibiting substitution of parties, some courts have taken the view that adherence to the hierarchy of persons "who may sue" listed in section 1054 is mandatory, and must be followed before a court may have jurisdiction over a wrongful death action. Moon v. Ellis, 677 P.2d 668, 670 (Okla.Ct.App.1984) ("Appellant [daughter] ... did not invoke the jurisdiction of the court as she was not...

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