Ex parte Tyson Foods, Inc., [Ms. 1110931, May 24, 2013] ___ So. 3d ___ (Ala. 2013). Under the wrongful death statute, ¤ 6-5-410, the personal representative brings an action. If the decedent died at work and a worker's compensation death claim is available, a third-party wrongful-death action pursuant to ¤ 25-5-11 is brought by "his dependents." In this action, an adult child, who was the personal representative but was not a dependent, brought the wrongful-death action. The defendants waited longer than two years after the death to raise this as an issue. The Court holds that this is a question of capacity, not a question of standing to sue. Lack of capacity is an affirmative defense that can be waived and was waived here. Standing to sue is jurisdictional and cannot be waived. Thus, if the defendant does not object to the plaintiff's capacity to sue in a ¤ 25-5-11 wrongful-death action, the defense may be waived. Here, after the defendant raised this defense, the plaintiff amended the complaint to add the decedent's widow as plaintiff and cured any problem with capacity. The trial court properly struck the defendant's amended answers raising lack of standing or capacity, where the answers were not filed until three years after the action commenced. Justice Murdock concurs specially, noting the "unusual, and arguably unworkable, arrangement" where the dependent who is given capacity to bring an action pursuant to ¤ 25-5-11 may not be an heir entitled to take under a wrongful-death action pursuant to ¤ 6-5-410, and so may have no interest in pursuing such an action. Justice Murdock notes that this issue is not presented in this appeal.
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