Miss. S. Court Rules Action Filed in Name of Deceased Person is a Nullity and Rule 17(a) Substitution Not Proper; Court also Rejects Waiver of Affirmative Defense Argument
On Thursday a divided (5–3) Miss. Supreme Court reversed and rendered in favor of the defense in Gardner Denver, Inc. v. Pittman. Here is the Court's opinion, which Chief Justice Waller wrote. Justice Graves wrote a dissent joined by Justices Kitchens and Chandler.
Facts
This was an asbestos case in Hinds County Circuit Court before Judge Winston Kidd. The plaintiff filed suit in 2002. But he was dead at the time.
For anyone who wonders how this happens—it happens. It typically happens when the plaintiff hires the attorney and then dies before suit is filed. Sometimes the deceased person's family does not report the death to the plaintiff's attorney. Plaintiff's attorney files the suit and later learns about the death when they attempt to communicate with the plaintiff about a discovery issue. It's not a huge deal unless statute of limitations issues are in play, which was the case in Gardner.
In 2004 the plaintiff moved to substitute plaintiff's widow as the plaintiff under Miss. R. Civ. P. 17(a). Plaintiff later filed an amended complaint with the widow as the plaintiff. In 2007 Defendants filed a motion for summary judgment. Defendants' motion for summary judgment was denied and the case was appealed.
Tim Porter and Johnny Givens with Porter & Malouf represented the plaintiff. Fifteen mass tort defense lawyers represented the Defendants.
Decision
The Court reversed and rendered. The Court ruled that the original complaint was a nullity and that, therefore, substitution was not proper under Rule 17(a). The lengthy dissent disagreed and argued that the cases cited by the majority were distinguishable and that substitution should have been allowed.
The majority also rejected plaintiff's waiver of affirmative defense argument even though the motion for summary judgment was filed nearly two years after the filing of the amended complaint.
My Take
My only comment on this decision is on the issue of waiver of affirmative defenses. I'm just going to repeat what I wrote in this February 2010 post:
The Court is slowly developing an irreconcilably inconsistent body of law on the issue of waiver of affirmative defenses. In some cases the court finds a waiver based on the passing of a certain amount of time. In other cases, it finds no waiver for similar or longer amounts of time. Efforts to distinguish the different cases are un-persuasive. It appears that what the Court is really doing is basing its waiver decisions on subjective feelings about who should win the case. I’m not saying that is what the Court is actually doing. But that is how it’s starting to look—and that’s a problem.
