WRONGFUL DEATH & STANDING/PERSONAL REPRESENTATIVE - EX PARTE BIO-MEDICAL APPLICATIONS OF ALABAMA, INC.
Ex parte Bio-Medical Applications of Alabama, Inc., [Ms. 1150362, 1150363, July 15, 2016] __ So. 3d __ (Ala. 2016). The Supreme Court grants petitions for writs of mandamus and directs the Mobile Circuit Court to enter summary judgment in favor of two health care defendants because the wrongful-death action filed against the defendants by a person other than the personal representative of the estate was a nullity, and the two-year statute of limitations had now expired. Citing Ex parte Hubbard Props, Inc., [Ms. 1141196, Mar. 4, 2016] __ So. 3d __ (Ala. 2016), and Waters v. Hipp, 600 So. 2d 981 (Ala. 1992), the Court concludes that a wrongful-death action filed by one of the decedent's sons, rather than the son appointed by the Mobile Probate Court as testator of the decedent's estate (i.e., the properly appointed personal representative) was a nullity.
The personal representative sought to invoke § 43-2-843(17), Ala. Code 1975, contending he was authorized by the statute "to employ an agent to perform 'any act of administration,'" Ms. *7, and that pursuant to this statute, he had delegated the responsibility for filing the wrongful death action to his brother. The Supreme Court rejects this contention, holding that § 43-2-843(17) allows a personal representative to employ an agent "to perform any act of administration," but that the filing of a wrongful-death action is not an "act of administration." Ms. *11-13. As a consequence, the petitions for writs of mandamus were due to be granted and summary judgment entered in favor of the health care provider defendants.