Former Estate Representative’s Wrongful Death Action May Be a Nullity
Northstar Anesthesia of Alabama, LLC, et al. v. Paula B. Noble: The personal representative of an estate who had been discharged and released as the estate representative prior to filing a wrongful death action, was without capacity to file the wrongful death action, and filing was a nullity.
On July 8, 2016, the Supreme Court of Alabama decided the matter of Northstar Anesthesia of Alabama, LLC, et al. v. Paula B. Noble, as personal representative of the Estate of Thomas A. Noble, [Ms. 1141158, 66, 68, July 8, 2016] — So. 3d — (Ala. 2016). Following the death of Thomas Noble, Paula Noble was appointed as the estate representative. In August 2012, upon Paula’s request, the estate was settled and she was discharged as the estate representative. In November 2013, Paula filed a wrongful death suit against the appellants under Alabama Code (1975) § 6-5-410, within the statute of limitations.
The appellants argued the wrongful death action is a nullity because at the time of filing suit, Paula was not the estate representative. Paula argued that her discharge as estate representative released her only from administrative duties and that the August 2012 discharge order should not be construed as discharging her for the purposes of bringing a wrongful death action. The Court found that the discharge order was a final judgment, clearly and unambiguously, that discharged and released Paula as the estate representative for all purposes. Because a wrongful death action me be brought only by a legally appointed estate representative, “one who may act only upon authority of a court appointment, may not continue to act after such authority had terminated, whether by death, resignation or by order of discharge or removal. Humphrey v. Boschung, 353 So.2d 760, 765 (Ala. 1970). Because Paula had been discharged and released as the estate representative prior to filing the wrongful death action, she was without capacity to file the wrongful death action, and its filing was a nullity.
In December 2013, the probate court re-appointed Paula as the estate representative, but the court found that this was not a remedy and was irrelevant because there was nothing for the re-appointment to relate back to. Although the general rule is that “relation back generally cannot be used to prevent a wrongful death claim from being time-barred where the personal representative is appointed after the two-year limitations period has expired,” an exception to the general rule is that relation back is only applicable where the delay in appointment is due to inadvertence by the probate court. Alvarado v. Estate of Kidd, [Ms. 1140706, January 29, 2016] — So.3d — (Ala. 2016); see also Ogle v. Gordon, 706 So.2d 707 (Ala. 1977). There was no such inadvertence in the instant case and the relation back doctrine did not apply.
Paula further argued that because the appellants did not raise an affirmative defense related to Paula’s lack of capacity or standing to bring the wrongful death action, the defense was therefore waived. The Court found, however, that because the wrongful death action was a nullity, the appellants were not under any obligation to raise an affirmative defense of capacity. “In short, a nullity is a nullity and there is no need for one to timely assert an affirmative defense to it.”
For more on recent wrongful death decisions in Alabama, see my post: A Wrongful Death Action Brought by Other than the Estate’s Personal Representative is a Nullity.