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10/21/94 EX PARTE BURNHAM SERVICE COMPANY v.

October 21, 1994

EX PARTE BURNHAM SERVICE COMPANY, INC., EX PARTE ACCURATE WAREHOUSE, INC. (RE: JAMES BLANKENSHIP, AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF RUBY M. BLANKENSHIP, DECEASED
v.
CHARLES WAYNE WETZEL, ET AL.)



(Barbour Circuit Court, CV-93-0119). William H. Robertson, TRIAL JUDGE.

The Name of this Case has been Corrected by the Court. Released for Publication February 10, 1995.

Maddox, Houston, Steagall, Ingram, and Cook, JJ., concur. Shores, J., concurs in the result.

The opinion of the court was delivered by: Maddox

PETITIONS FOR WRIT OF MANDAMUS

MADDOX, JUSTICE.

These petitions for the writ of mandamus present the question whether a personal representative of a deceased plaintiff has the right to file a separate wrongful death action in a circuit court other than the one in which the deceased plaintiff's original personal injury action is pending.

The question presented is whether the personal representative of the estate of a deceased plaintiff must amend a personal injury action (pending in the forum chosen by the original plaintiff) in order to include a claim for the original plaintiff's wrongful death, or whether the representative can file a separate action, in another circuit court, for the original plaintiff's wrongful death, against the same defendants.

We hold that a personal representative must amend the original personal injury action to include any claims for wrongful death, and may not file a separate wrongful death action in a forum different from the one chosen by the original plaintiff in his or her personal injury action.

On October 8, 1992, Ruby Blankenship and her husband Harmon, residents of Henry County, Alabama, were involved in an automobile accident with Charles Wayne Wetzel in Houston County, Alabama. At the time of the accident, Wetzel was an employee of Accurate Warehouse, Inc. On October 26, 1992, the Blankenships filed a personal injury action in Henry County Circuit Court against Wetzel, Burnham Service Company, and Allstate Insurance Company. *fn1 Ruby Blankenship died on November 7, 1992. On January 11, 1993, James Blankenship, Ruby Blankenship's executor and a resident of Barbour County, was properly substituted as a plaintiff in the personal injury action. On March 5, 1993, the defendant Wetzel filed a motion to transfer the case from Henry County to Houston County on the grounds of forum non conveniens. The case was transferred to Houston County and was set for trial for the week of December 14, 1993.

On November 23, 1993, the plaintiffs filed an amendment to their complaint (hereinafter called the "first amendment"). This first amendment added a wrongful death count based on § 6-5-410, Alabama Code 1975. The plaintiffs alleged that Ruby Blankenship's death was a result of the injuries that were the subject of the personal injury action. The defendants filed a motion to strike this first amendment; the plaintiffs filed a motion to allow it. Several days later, however, the plaintiffs filed a second amended complaint (hereinafter called the "second amendment"). This second amendment added several new defendants, including Accurate Warehouse, Inc., and purported to withdraw the wrongful death claim that had been included in the first amendment. Shortly afterwards, the Houston County Circuit Court continued the pending actions before it until the next trial term.

On December 14, 1993, James Blankenship filed a separate wrongful death action in the Barbour County Circuit Court, naming as defendants both the original defendants in the first complaint and the three new defendants that were added by the second amendment.

On January 14, 1994, the defendants moved to strike the second amendment before the Houston Circuit Court; the plaintiffs responded by moving that the court allow the second amendment. On January 24, 1994, the Houston Circuit Court denied the motion to strike and granted the motion to amend, but did not specify which motion and which amendment. Upon a motion to clarify its order, the court held a hearing, and on February 12, 1994, noted on its docket sheet:

"Defendants withdraw their first Motion to Strike and the Court grants Defendants' 2nd Motion to Strike, disallowing the Amendment by Plaintiff withdrawing the wrongful death claim from this court. The result of the foregoing action is that all claims (i.e., personal injury and death claims) would remain in this case. "

In the wrongful death action in Barbour County, the defendants filed motions to dismiss, or, in the alternative, to transfer the case on the ground that venue in Barbour County was improper. The Barbour County Circuit Court held a hearing on March 24, 1994, and denied the defendants' motions; the Barbour County Judge held that venue was proper, that no other wrongful death action was pending when the Barbour County action was filed, and that there was no compelling reason for a change of venue. It is regarding this ruling that the defendants seek a writ of ...


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