PARKER, Justice.
Pursuant to Rule 5, Ala. R.App. P., this Court granted a petition for permission to appeal filed by Charles A. Wood, M.D., Ozark Internal Medicine and Pediatrics, P.C. ("Ozark"), and David Claassen, M.D. (hereinafter referred to collectively as "the physicians"), the defendants in a medical-malpractice wrongful-death action filed by Ann Wayman ("Wayman"), the surviving spouse of Charles R. Wayman, deceased, whom Charles named as his personal representative in his will. The petition asks us to review the order of the trial court holding that when a person dies testate and the person named as personal representative in the will files a wrongful-death action within the statutory limitations period, but is not formally appointed as personal representative until after the statutory limitations period has run, "the appointment relates back to the death or [the] date of filing the suit and the suit is not barred by the Statute of Limitations." Trial court's order of October 12, 2007.
The specific question before this Court is stated in the order of the trial court certifying for permissive appeal its interlocutory order denying the physicians' motion to dismiss or, in the alternative, for a summary judgment, as follows:
Charles Wayman died on December 30, 2004, while under the care of the physicians. He left a will in which he named Wayman as his personal representative.
On December 27, 2006, Wayman filed a wrongful-death action in the Dale Circuit Court alleging that Charles's death had resulted from complications of an undiagnosed case of Rocky Mountain spotted fever. On January 19, 2007, Dr. Wood and Ozark moved the trial court to dismiss the action on the basis that the complaint failed to state a claim on which relief could be granted. Dr. Claassen filed an answer in which he denied liability and also moved the trial court to dismiss the action. Dr. Wood and Ozark also filed an answer after
The physicians sought discovery from Wayman on issues that included copies of her letters of appointment as personal representative of Charles's estate. When the letters were not provided, the physicians requested the Dale Probate Court to advise them if such an estate existed. The probate court responded on August 17, 2007, stating that there was "no estate on a Charles R. Wayman." On September 6, 2007, the physicians filed a motion to dismiss or, in the alternative, for a summary judgment.
In their motion, the physicians argued that under § 6-5-410, Ala.Code 1975, only a personal representative of the estate of a decedent may pursue a wrongful-death action. The "Wrongful Death Statute," § 6-5-410, Ala.Code 1975, provides, in part:
The physicians argued that under the rule established in Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), no one but the personal representative can maintain a wrongful-death action and that any action by an administrator that occurred before a personal representative's formal appointment is a nullity. Because the action is a nullity, they argue, the doctrine of relation back cannot apply when the statute of limitations has expired before the formal appointment because there is no action to which the appointment could relate back.
On September 27, 2007, Wayman moved the trial court to deny the physicians' motions "by permitting an amendment [to the complaint] to substitute [Wayman] as personal representative of her deceased husband's estate as party-plaintiff." She presented letters testamentary issued by the Barbour Probate Court
On September 28, 2007, the physicians filed their response to Wayman's motion. They argued that Wayman had misinterpreted the law when she argued that Downtown Nursing Home was no longer good law, because, they argued, the holding in Downtown Nursing Home has been confirmed in several opinions when the letters testamentary were issued after the statutory two-year period had run.
On October 12, 2007, the trial court denied the physicians' motion to dismiss or, in the alternative, for a summary judgment and subsequently certified the question presented above in response to the physicians' motion for the certification of the order for a permissive appeal.
Continental Nat'l Indem. Co. v. Fields, 926 So.2d 1033, 1035 (Ala.2005).
In its order denying the physicians' motion to dismiss or, in the alternative, for a summary judgment, the trial court adopted Wayman's argument, stating, in part:
Section 43-2-831, Ala.Code 1975, provides:
(Emphasis added.) Thus, under § 43-2-831, a person named personal representative in a will may perform certain acts that are beneficial to the estate before his or her appointment by a probate court. The subsequent appointment of the person as the decedent's personal representative will relate back to provide authority for such acts.
It has been held that a wrongful-death action is not filed for the benefit of the estate, because the personal representative who brings such an action does not represent the estate.
Affinity Hosp., L.L.C. v. Williford, 21 So.3d 712, 716 (Ala.2009). Further,
Breed v. Atlanta, Birmingham & Coast R.R., 241 Ala. 640, 642-43, 4 So.2d 315, 317 (1941). Any damages awarded as the result of a wrongful-death action are not a part of the decedent's estate, and the action, therefore, cannot benefit the estate. "[D]amages awarded pursuant to [§ 6-5-410, Ala.Code 1975,] are distributed according to the statute of distribution and are not part of the decedent's estate. The damages from a wrongful death award pass as though the decedent had died without a will." Steele v. Steele, 623 So.2d 1140, 1141 (Ala.1993).
Wayman directs our attention to the fact that this Court has also stated that the damages from a wrongful-death action do go to the estate. In reversing a trial court's judgment that allowed argument implying that the damages in a wrongful-death action filed under the Homicide Act, Code 1940, Tit. 7, § 123 (now § 6-5-410, Ala.Code 1975), were compensatory rather than punitive, this Court stated:
Hardin v. Sellers, 270 Ala. 156, 159, 117 So.2d 383, 385 (1960). We hold that the above statement in Hardin v. Sellers was dicta and that it does not accurately state the law.
Section 43-2-831, Ala.Code 1975, provides for the relation back of certain acts defined therein that are beneficial to the estate. Because an action brought under the wrongful-death statute is not brought on behalf of the estate, and because the estate gains no benefit from even a successful wrongful-death action, the relation-back provision in § 43-2-831 does not apply to a wrongful-death action brought under § 6-5-410.
In Ogle, Ogle, the personal representative named in his wife's will, filed a petition for letters testamentary and a wrongful-death action on the same day, September 30, 1992, four months after his wife's death on May 28, 1992. The probate court failed to issue the letters of administration within the next 20 months, not issuing the letters until the two-year period contained in the wrongful-death statute had expired. The trial court entered a summary judgment for the defendant because Ogle was not a personal representative of his wife's estate on the date he filed his wrongful-death action. In its discussion of the case, this Court said that the "probate court, through inadvertence, did not issue the letters of administration until January 19, 1995, the day after the plaintiff notified the court of its dereliction. That dereliction should not bar the plaintiff's action." Ogle, 706 So.2d at 711.
The legal issue presented in Ogle was not one of relation back; rather, the "legal question presented [was] whether the failure of the probate court to issue letters of administration within the two-year period after the death requires the dismissal of a wrongful death action that was timely filed by the person later issued letters of administration." Ogle, 706 So.2d at 707. This Court decided that, under the circumstances of that case, it did not.
In deciding Ogle, we recognized "that this Court has held that the wrongful death statute, which provides a two-year limitations period [at § 6-5-410(d)], is a statute of creation, otherwise known as a nonclaim bar to recovery, and that it is not subject to tolling provisions." Ogle, 706 So.2d at 708 (emphasis added). We have held that the two-year limitations period within which a wrongful-death action must be brought is not a statute of limitations. "[T]he time provision within which a wrongful death [action must be brought] is of the essence of the action, and also, such limitation affects the liability itself, and not merely the remedy." Nicholson v. Lockwood
As Wayman argues, Ogle partially overruled Strickland v. Mobile Towing & Wrecking Co., supra. The Strickland decision held that an action filed on March 11, 1968, was a nullity because the person who filed it did not receive his appointment as administrator until March 13, 1968, and the three-year statutory limitations period for filing the action had expired on March 12, 1968. Thus, the case construed federal statutes to hold that a wrongful-death action brought by anyone other than a decedent's personal representative duly appointed by the probate court should be dismissed as a nullity. Because the originally filed action was a nullity, the appointment made after the expiration of the three-year limitations period of the statute had no action to which it could relate back. This Court noted that the statutory time limit for filing an action under the Jones Act, 46 U.S.C. § 688, constituted a condition precedent to bringing the action and stated that that construction was consistent with "our construction of the time limit under the Alabama wrongful death statute, Tit. 7, § 123, Code 1940 [now § 6-5-410, Ala. Code 1975]." Strickland, 293 Ala. at 350, 303 So.2d at 99. In overruling Strickland, this Court stated in Ogle:
Ogle, 706 So.2d at 710 (emphasis added). Ogle is not specific as to what it overruled in Strickland, saying only that "we overrule Strickland's holding regarding the application of relation back, insofar as it is inconsistent with what we hold today." Ogle overruled Strickland because § 43-2-831, Ala.Code 1975, which became effective after Strickland was decided, specifically provides for relation back under certain circumstances. As emphasized above, however, this Court did not overrule the holding that under the doctrine of relation back there must be something to relate back to. It then related Ogle's appointment back to his filing of the petition for letters testamentary, which was the same date on which the action was filed.
To summarize, Ogle stated that the two-year limitations period in § 6-5-410 is not a statute of limitations and that it is not subject to tolling. Ogle acknowledged that relation back is permitted for personal representatives by virtue of § 43-2-831, but it allowed relation back in that wrongful-death case solely because of the "inadvertence" of the probate court, which caused the long delay after Ogle timely filed both his petition and his complaint within four months of the decedent's death. Because there must be something
Ellis v. Hilburn, 688 So.2d 236, 238 (Ala. 1997).
Accordingly, the trial court erred when it denied the physicians' motion to dismiss the case on the basis that the two-year period of § 6-5-410 was tolled by the filing of an action by a person who had no authority under that statute to file a wrongful-death action. Because we reverse the judgment of the trial court on the basis of this error, we need not reach the parties' other arguments.
Because Wayman was not a personal representative appointed by the probate court when she filed the action or at the expiration of the statutory two-year period for filing a wrongful-death action, the trial court erred in denying the physicians' motion to dismiss the action on the basis that Wayman's appointment as personal representative, which became effective nine months after the expiration of the two-year limitations period, could not relate back to the date of Charles's death or to the date of the filing of the wrongful-death action. Consequently, we reverse the judgment of the trial court and remand the case for proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and LYONS, STUART, and BOLIN, JJ., concur.
WOODALL, SMITH, and SHAW, JJ., concur in the result.
MURDOCK, J., dissents.
MURDOCK, Justice (dissenting).
In Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala.1979), this Court relied upon Strickland v. Mobile Towing & Wrecking Co., 293 Ala. 348, 303 So.2d 98 (1974), in holding as follows:
375 So.2d at 466.
Subsequently, however, in Ogle v. Gordon, 706 So.2d 707 (Ala.1997), this Court overruled Strickland. In so doing, we recognized the age-old, "practically universal" rule that the issuance of letters testamentary relates back to the decedent's "time of death" and vindicates acts of the personal representative done in the interim:
706 So.2d at 709-10.
In overruling Strickland, this Court removed the basis for its decision in Downtown Nursing Home. Clearly the opinion of this Court in Ogle applied the relation-back doctrine embodied in § 43-2-831, Ala.Code 1975 (the language of which Alabama adopted from the Uniform Probate Code), to a wrongful-death action.
Nevertheless, the Court went on to state in Ogle "that Strickland correctly points out that under the doctrine of relation back one must have something to relate back to, and we note that in the present case the filing of the original petition is the event to which the appointment would relate back." 706 So.2d at 710. Thus, instead of making the event for relation-back purposes the decedent's date of death consistent with the age-old rule (and the statutory text) upon which its decision rested, this Court ultimately made the event for relation-back purposes the date on which the "petition" for letters testamentary was filed. Perhaps it did so merely because in Ogle that date was one and the same as the date on which the wrongful-death action was filed. 706 So.2d at 708.
In any event, I cannot accept this Court's failure to apply the well settled rule concerning the relation back of a personal representative's authority to the date of the decedent's death. In my opinion, we are failing to take proper account of § 43-2-831, Ala.Code 1975, and the judicial precedents it incorporates and that apply it, i.e., Ogle.
