Ex parte Thompson Tractor Company, Inc.
Thompson Tractor Company, Inc., et al. In re: Ray Franklin and Donna Franklin
Circuit Court, CV-11-321
PETITION FOR WRIT OF MANDAMUS
Tractor Company, Inc. ("the employer"), has filed a
petition for a writ of mandamus requesting that this court
order the Calhoun Circuit Court ("the trial court")
to dismiss a civil action pending before it. Because we
conclude that the civil action abated upon the death of the
sole plaintiff, we grant the petition.
11, 2011, Ray Franklin ("the employee") and Donna
Franklin ("the widow") jointly filed a complaint
against the employer and other defendants, which the clerk of
the trial court assigned case number CV-11-153. Count six of
the complaint contains 12 paragraphs numbering from 82 to 93.
Paragraph 84 of the complaint states: "As a result of
Defendant's [sic] actions, Plaintiff Ray
Franklin contracted one or more asbestos-related
diseases, including asbestosis." Paragraph 85 states
that "Plaintiff Ray Franklin has been diagnosed
with asbestosis." Paragraph 86 states that "the
plaintiff, Ray Franklin, received an injury or
injuries arising out of and in the course of plaintiff's
said employment.... As a proximate result of said employment,
Plaintiff has suffered an injury to his
person." Paragraph 87 asserts that the employee suffered
a "permanent loss of his lung capacity."
Paragraph 88 refers to the employee's having to use
"his own funds and his own insurance
to obtain medical treatment...." Paragraph 93 alleges
that it has been necessary for the "Plaintiff ... to
hire attorneys to represent him." Based on its
wording, we conclude that count six of that complaint asserts
a claim solely by the employee against the employer for
benefits under the Alabama Workers' Compensation Act
("the Act"), § 25-5-1 et seq., Ala. Code 1975,
on account of his contraction of asbestosis.
29, 2011, the trial court severed count six from the
remaining counts of the complaint, and the clerk of the trial
court assigned the severed claim ("the workers'
compensation action") a separate civil-action number,
i.e., case number CV-11-321. When a claim is severed from the
original action under Rule 21, Ala. R. Civ. P., "a new
action is created, just as if it had never been part of the
original action ...." Key v. Robert M. Duke Ins.
Agency, 340 So.2d 781, 783 (Ala. 1976). The severed
action continues as a separate proceeding involving only the
parties to the severed claim. See Chamblee v.
Duncan, 188 So.3d 682, 691 (Ala. Civ. App. 2015). In
this case, after count six was severed, the clerk of the
trial court and the parties continued to identify the widow
as a named plaintiff in the workers' compensation action;
however, the widow did not make any claim in the workers'
compensation action. In determining who is a party, as in all
matters of procedural law, the label assigned by the trial
court does not control because the substance of the action,
not its form, controls. See generally Morgungenko v.
Dwayne's Body Shop, 23 So.3d 671, 674 (Ala. Civ.
App. 2009); see also Dillard v. Smith, 146 Tex. 227,
229, 205 S.W.2d 366, 367 (1947) (holding that court considers
substance of the body of the pleading, and not the style of
the case, to determine proper parties to action). We conclude
that, because the widow did not make any substantive claim in
the workers' compensation action, the continuing
reference to the widow in the style of the case did not grant
her status as a plaintiff. The employee was actually the sole
plaintiff in the workers' compensation action.
October 23, 2011, before any adjudication of the
employee's rights to workers' compensation benefits,
the employee died, allegedly due to work-related asbestosis.
On February 1, 2012, the widow filed a motion to be
substituted as the plaintiff in the workers' compensation
action, both in her individual capacity and as the personal
representative of the estate of the employee, and a motion to
amend the complaint to include two tort claims -- a
wrongful-death claim and a claim for death benefits under the
Act. See Ala. Code 1975, § 25-5-60. While those
motions were pending, the employer filed a motion to dismiss
the workers' compensation action, arguing, among other
theories, that the trial court had lost subject-matter
jurisdiction upon the death of the employee. The widow
responded by filing, in December 2013, a second civil action
against the employer and others seeking death benefits under
the Act ("the death-benefits action"); that action
was assigned case number CV-11-900671. The widow subsequently
moved the trial court to consolidate the death-benefits
action with the workers' compensation action.
September 20, 2016, the trial court granted the motion to
consolidate and denied the employer's motion to dismiss
the workers' compensation action. The employer filed a
motion for the trial court to reconsider its denial of the
motion to dismiss, which motion remained pending when the
employer filed this timely petition for the writ of mandamus
on November 1, 2016. In its petition, the employer requests
that this court issue a writ of mandamus ordering the trial
court to dismiss the workers' compensation action.
25(a), Ala. R. Civ. P., provides, in pertinent part: "If
a party dies and the claim is not thereby
extinguished, the court may order substitution of the
proper parties." (Emphasis added.) Rule 25 does not
govern whether a claim is extinguished, which is a matter of
substantive law unaffected by the Alabama Rules of Civil
Procedure. See 1 Ally Windsor Howell, Alabama
Rules of Civil Procedure Annotated, Rule 25 (4th ed.
long-standing Alabama law, "[an employee's] rights
[to workers' compensation benefits] terminate[s] at his
[or her] death." Ex parte Woodward Iron Co.,
277 Ala. 133, 135, 167 So.2d 702, 703 (1964). A workers'
compensation claim is not considered an action that survives
the death of an employee so that it may be continued in the
name of a personal representative of the estate of the
employee under Ala. Code 1975, § 6-5-462. See Owens
v. Ward, 49 Ala.App. 293, 296-97, 271 So.2d 251, 254,
(Civ. App. 1972) ("The 'cause of action' of the
employee does not survive [after his or her death], nor for
that matter does the employee's 'action' survive
under the statute ...."). If a workers' compensation
claim has been adjudicated or settled before the death of an
employee, a dependent widow may recover the benefits
specified in Ala. Code 1975, 25-5-57(a)(5), but, if not, the
claim abates upon the death of the employee. See Gibson
v. Staffco, L.L.C., 63 So.3d 1272, 1274 (Ala. Civ. App.
2010) ("[A] claim for benefits under the Act does not
survive the death of a worker if, as in this case, the degree
of the worker's disability is not ascertained by a court
or agreed to between the parties before the worker's
the employee's claim for workers' compensation
benefits was extinguished by his death, the widow could not
be substituted as a plaintiff under Rule 25 in order to
pursue any claim based on the employee's work-related
injury. See generally Hardin v. Palmer Truss Co.,
558 So.2d 963, 964 (Ala. Civ. App. 1990) (quoting Owens
v. Ward, 49 Ala.App. at 296, 271 So.2d at 254)
("The workmen's compensation statutes do not extend
to widows and dependent children a right 'to succeed to
the deceased employee's cause of action for determination
of benefits.'"). In that regard, workers'
compensation cases differ from ordinary civil actions seeking
damages for personal injuries, which do survive the death of
the plaintiff and which can be continued by a personal
representative of the estate of the plaintiff as a
wrongful-death suit. See King v. National Spa & Pool
Inst., Inc., 607 So.2d 1241 (Ala. 1992).
the only claim before a trial court is extinguished by the
death of the plaintiff, the action abates and becomes a
nullity so that no further action can be taken in the case,
including the amendment of the complaint to substitute a new
plaintiff and to add new claims based on the personal
injuries or death of the deceased plaintiff. Elam v.
Illinois Cent. Gulf R.R., 496 So.2d 740, 742 (Ala.
1986), overruled on other grounds by King v. National Spa
& Pool Inst., Inc., supra. A trial court
lacks jurisdiction to act on a case that has been abated by
the death of one of the parties. See Ex parte
Thomas, 54 So.3d 356 (Ala. 2010). A court that lacks
jurisdiction has the power only to dismiss the action.
Bernals, Inc. v. Kessler-Greystone, LLC, 70 So.3d
315, 319 (Ala. 2011). Any other order or judgment entered by
the trial court after the action has been abated is void
ab initio due to lack of subject-matter
case, the trial court denied the motion to dismiss filed by
the employer, purporting to allow the workers'
compensation action to be continued in consolidation with the
death-benefits action. However, the trial court lacked
authority to enter its September 20, 2016, order because the
workers' compensation action had abated on October 23,
2011, and could not be revived. The trial court retained
jurisdiction only to rule on the motion to dismiss, which it
had an imperative duty to grant.
petition for a writ of mandamus, the employer reiterates its
argument to the trial court:
"When [the employee] died, the trial court lost
jurisdiction over the only claim pending in the action
against [the employer] (count six). As a result, the only
proper action that the trial court could take from that ...