Representative Could Not Bring Wrongful Death Claim That Was Time-Barred to Decedent

A personal representative could not bring a wrongful death suit where the underlying personal injury claim would have been time-barred to her decedent. The Supreme Court of Alabama affirmed a summary judgment dismissing the representative’s claim. The court also discussed intertwining issues of limitations and conflict of laws. In sum, Alabama’s wrongful death statute could not be used to import the more favorable limitations rules of other states in order to save the representative’s claim. Henderson v. MeadWestvaco Corp., No. 1070522 (Ala. Mar. 20, 2009).

This is a mesothelioma wrongful death case. The Supreme Court of Alabama applied the state’s wrongful death statute, Ala. Code § 6-5-410(a), and the one-year statute of limitations of Ala. Code § 6-2-30, as it existed at the time of the injury, to affirm a summary judgment against the personal representative’s wrongful death claim. In rejecting the representative’s arguments, the court also discussed two earlier decisions treating conflict of laws in the area of limitations.

1.

The plaintiff’s decedent (Henderson) was last exposed to asbestos at his workplace in 1972. He did not develop symptoms of mesothelioma (asbestos’s signature cancer) until 32 years later, in September 2004. He then filed a personal injury suit in Georgia. Henderson died while this case was pending. His wife, as personal representative, voluntarily dismissed the Georgia case on June 16, 2006; and, on the same day, filed this wrongful death suit in Alabama.

The trial court granted summary judgment to the defendants. Henderson’s claim, the lower court held, was barred by Alabama’s rule of repose.

The Supreme Court of Alabama affirmed the summary judgment, but on a ground different from the trial court. The state’s high court pointed to a proviso in Alabama’s wrongful death statute, which creates a right of action only if the decedent "could have commenced an action for [the underlying] wrongful act, omission, or negligence if it had not caused death." In this case, Henderson could not have commenced a personal injury action, because his claim was time-barred. Under the one-year statute of limitation of § 6-2-30, as it existed when he was injured, Henderson’s claim for asbestos injury became barred in 1973: one year after his last exposure. (A 1980 law creating a discovery rule for asbestos claims could not retroactively save his suit. "Once an action is barred by a statute of limitations in existence at the time of the action," the court explained, "rights vest in the limitations defense which cannot be destroyed by subsequent legislative act." ) Because Henderson’s claim was barred in 1973, he could not have "commenced an action for [the underlying] wrongful act" and his representative’s wrongful death claim was equally barred. On this basis, the Supreme Court upheld the summary judgment.

2.

The court then rebuffed two of the representative’s attempts to save her claim. In essence, she invoked two earlier Alabama decisions to urge that, because Henderson had timely filed a personal injury case in Georgia, her Alabama wrongful death suit was viable. While Alabama’s usual choice-of-law rules would apply this state’s limitations period (and so bar Henderson’s claim), she insisted that the wrongful death statute circumvented the usual choice-of-law rules, permitting her to commence her Alabama wrongful death case if her underlying claim was timely elsewhere.

She first cited Pace v. Armstrong World Industries, Inc., 578 So. 2d 281 (Ala. 1991). In Pace, a plaintiff filed a personal injury action in Texas. Under choice-of-law principles, Texas procedural (i.e., limitations) law and Alabama substantive law governed that case. The case was transferred under a federal statute to Alabama. The plaintiff died, and the Alabama Supreme Court held that, because the underlying claim had been timely under governing Texas limitations rules, it could be "converted" into a wrongful death claim under the Alabama statute. The proviso in Alabama’s wrongful death statute, discussed above, under which the claim of Henderson’s representative faltered, did not contemplate the situation presented in Pace.

At the same time, however, that proviso did not point beyond Pace; and Pace did not mean that whenever an action was or could have been timely filed in another forum, a viable claim existed under Alabama’s wrongful death statute. The proviso was not intended, in other words, to avoid Alabama’s normal choice-of-law rules. Under those rules, Alabama limitations law normally governed Alabama cases; and, here, barred Henderson’s underlying claim. The court expressly limited Pace to its facts.

3.

The representative then pointed to Textron, Inc. v. Whitfield, 380 So. 2d 259 (Ala. 1979). She again suggested that, under Textron, her Alabama wrongful death claim was viable because Henderson had filed a timely suit in Georgia.

In Textron, which was not a wrongful death case, a plaintiff filed one suit in Alabama and another suit for the same injury in Vermont. The Alabama suit was dismissed as untimely, and the defendant then pressed this dismissal in Vermont to block the claim as res judicata. Reviewing the case, the Alabama Supreme Court "addressed the res judicata question that was before the Vermont court, noting that the disposition of the Alabama action was procedural and therefore did not have a preclusive effect on the Vermont action." The court further wrote that, "if the plaintiff can present his claim elsewhere, in a jurisdiction which has a longer or different statute of limitations, and prevail on the merits of his claim, he should have that opportunity."

Henderson’s representative read this statement as an "invitation . . . for plaintiffs to file personal-injury actions in jurisdictions with more favorable statutes of limitation," and, in this way, satisfy the "could have commenced" proviso in Alabama’s wrongful death statute.

The court rejected this view. It wrote: "Textron condoned nothing more than the right to pursue in another jurisdiction a claim that would be viable under the statute of limitations applicable in the jurisdiction under such jurisdiction’s conflicts-of-law rule."  Henderson may have timely filed a Georgia claim in a Georgia court, but he had dismissed that action. The wrongful death claim his representative filed in Alabama was, under Alabama’s limitations rules, barred. The summary judgment against that claim was thus affirmed.