Alabama's Wrongful Death Statute And
Case Law Interpreting It Including Damages Under Alabama's Wrongful Death Statute And
Ethics Concerning Wrongful Death Cases

I. INTRODUCTION

Perhaps no area of Alabama law causes more confusion among practicing attorneys than does the area of wrongful death. Wrongful death cases are governed by the Alabama wrongful death statute codified at Alabama Code § 6-5-410 (1975). The Alabama wrongful death statute states as follows:

Alabama Code § 6-5-410 (1975). Confusion surrounding the Alabama wrongful death statute rests with the interpretation of the act by Alabama courts since the 1800s. Alabama courts interpret the act to allow only for the imposition of punitive damages and deny recovery of compensatory damages. This interpretation has created a rule that is unique in American jurisprudence and peculiar to Alabama.¹ Alabama's peculiar interpretation of its wrongful death statute affects everything from the manner in which such recoveries under the statute are treated for income tax purposes,² to the manner in which mass tort cases involving the wrongful deaths of numerous individuals are handled. It is incumbent upon every lawyer who handles wrongful death cases in Alabama to gain an in-depth understanding of the wrongful death statute, its development and its interpretation. As such, the purpose of this paper is to provide historical analysis and insight into the development of Alabama's current wrongful death statute and its interpretation and to provide lawyers who handle wrongful death cases in Alabama some practical guidelines and advice in handling such cases.

II. HISTORICAL DEVELOPMENT OF ALABAMA'S WRONGFUL DEATH
STATUTE AND JUDICIAL INTERPRETATION

A. Early Enactments of Alabama's Wrongful Death Statute

In 1852, the Alabama legislature for the first time enacted legislation allowing a decedent's personal representative to recover for a decedent's wrongful death. Prior to 1852, there was no civil remedy for wrongful death and "in terms of civil liability, it was cheaper to kill than maim."³ The Act had two striking characteristics. First, it limited recovery to compensatory damages for an amount up to three years income of the decedent that was, in any case, not to exceed $3,000. Second, the act was made applicable to corporate defendants. However, it seemed to apply a different standard to corporate defendants than the standard applied to individual defendants. Specifically, § 1941 of the act provided recovery for the "wrongful act, omission or culpable negligence of any officer or agent of any chartered corporation."⁴ In contrast, the provision of the act dealing with individual defendants, § 1938, permitted recovery for all unlawful, wrongful deaths without requiring a minimal degree of culpability. The absence of the "culpable negligence" language from § 1938 seemingly mandated a higher degree of culpability to establish liability on corporate defendants than needed to establish liability on individual defendants.⁵

In 1860 the Alabama legislature expressly repealed §§ 1938 and 1939 of the original Act and amended it to expand the permissible amount of recovery. While the 1860 Act failed to categorize the damages recoverable as compensatory or punitive in nature, the Act, entitled "To Prevent Homicides" ("Homicide Act"),⁶ removed the three years income/$3,000 cap on recovery contained in the earlier version. Instead, the amount of recovery was limited only to "such sum as the jury deem just." Act of February 24, 1860, No. 45 1859 Ala Acts 42. The secession of Alabama from the union and the civil war that began in April, 1861 delayed final implementation of the 1860 enactment. In fact, because of apparent legislative disarray after the war, the 1860 version of the act was not placed in the Alabama Code due to a clerical oversight and the cap on damages remained part of the enactment.⁷

In 1872, the wrongful death statute was re-enacted and this time the amendments became part of the Alabama Code. It stated in relevant part:

As can be seen, the 1872 enactment clearly contains the more important aspects of the modern Alabama wrongful death statute set forth above. Most importantly, the 1872 enactment says nothing concerning the kind of damages that could be awarded under the statute. Nothing in the statute contemplated a scheme by which recovery was limited to punitive damages.

B. Judicial Interpretation of the 1872 Act

Despite the fact that the 1872 statute itself did nothing to limit the type or amount of damages, Alabama courts in early cases construed the act to allow only for the imposition of punitive damages and deny recovery for compensatory damages. In the case of Savannah & Memphis Railroad Co. v. Shearer, 58 Ala. 672 (Ala. 1877) the Court made clear that the damages assessed under the act were punitive in nature. In Shearer, a railroad worker was killed as a result of the alleged negligence on the part of his railroad employer. The Court opined as follows:

The Court made clear that the in its view the purpose of the act was to do exactly what was set forth in the title of the enactment - "To Prevent Homicides."⁹ As such, damages awarded under the act were intended to "punish" those individuals and corporations that caused the death of others.¹⁰

In another case decided the same year, the Court reinforced its view. In South and North Alabama Railroad Company v. Sullivan, 59 Ala. 272 (Ala. 1877) the Court held that the statute was "punitive in its purposes." Although the Court admitted that the damages were compensatory in that they were distributed to the estate of the decedent, the court nevertheless reasoned that the Act's title, "To Prevent Homicides," unambiguously declared that the purpose of the statute was to prevent homicide and preserve life by punishing the wrongdoer. Thus, the title of the Act inherently called for punitive damages. The Court opined that the Act was intended to be "[p]unitive of the person or corporation by which the wrong is done, to stimulate diligence and to check violence, in order thereby to give greater security to human life…."¹¹ The Shearer and Sullivan cases set the course for all future judicial interpretation of Alabama's wrongful death act as relating to the punitive nature of damages awarded under the act. Judicial interpretation of the act in this regard has not changed and remains in full effect today.

Yet another area of controversy surrounding the 1872 act concerned the issue of whether corporate defendants could be held liable for wrongful death. § 1941 of the original 1852 act allowed for liability of corporate defendants for wrongful death under the act. The question arose in the Shearer case as to whether a corporation could in fact be held liable for wrongful death given that the 1872 act did not contain the language from the original act setting forth liability on the part of corporations. In Shearer, the defendant railroad company argued that because the 1872 Act did not contain the original § 1941 language, the Act did not authorize or create a cause of action against corporations.¹²

The Court disagreed with the railroad reasoning that the 1872 re-enactment was meant to correct the legislative oversight of omitting the 1860 version. The 1860 version itself only repealed those provisions dealing with the caps on damages. As such, it was unnecessary for the legislature to address the language dealing with corporate liability when the amendments were not designed to affect it. Because the 1872 re-enactment only intended to correct the legislative oversight of excluding the 1860 amendments, it, too only addressed those provisions necessary to make the correction. The Court held in Shearer that §1941 was neither repealed by the 1860 amendment, nor repugnant to the 1872 Act. As such, the 1872 Act, without express provisions, affirmed liability for corporate defendants for wrongful death actions.¹³

C. The 1886 Amendments and Legislative Endorsement of the Judicial Interpretation of the Act

The 1872 Act was codified in the 1876 Code,¹⁴ and later amended in 1886 with relatively few changes. The 1886 amendment read as follows:

The language in the 1886 amendment for the most part remained consistent with the 1872 enactment. However, the legislature made two important changes that had far reaching implications with respect to judicial interpretation of the act.

First, the legislature's substitution of "may recover such sum as the jury deem just" (1872 version) with "recover such damages as the jury may assess" (italics supplied) without explanation from the legislature only confused the question of legislative intent with respect to damages that could be recovered under the act. The Alabama legislature failed to challenge or alter the judicial construction given to the wrongful death statute when it had clear opportunity to do so. To many, this signified legislative approval of the punitive damages only interpretation. Despite continued attacks on the original judicial interpretation of the wrongful death statute as permitting only punitive damages, the indication of legislative approval has been the strongest argument for continued adherence to the original judicial construction.

Second, the legislature provided that damages could be assessed against persons or corporations for any "wrongful act, omission, or negligence."¹⁵ This change is significant given the punitive damage-only judicial interpretation that had developed well before 1886. Common law did not allow for the imposition of punitive damages for simple negligence and as such, only the legislature could change or modify the common law to allow for imposition of punitive damages under such circumstances.¹⁶ Despite its full awareness of the judicial construction and interpretation of allowing only punitive damages under the act, the Alabama legislature passed the 1886 amendments without comment on the issue.

D. Enactment of the Modern Wrongful Death Act and Consistent Application of the Punitive-Only Interpretation

In 1911, the Alabama Legislature again had opportunity to speak to the judicial interpretation of the Act when it again considered and passed amendments to the Act. The 1911 Act is the basis of the modern act (Ala. Code § 6-5-410 set forth above) which is substantially in the same form as it existed in 1911. Since the Shearer and Sullivan decisions, courts have consistently held that the Alabama Wrongful Death Statute provides for punitive damages only. The reasoning for this long-standing interpretation may stem more from the obligation to follow precedent rather than respect for the underlying rationale. Cases have called the punitive-only construction of the act into question, but Courts have been unwilling to change it.

1. Richmond & Danville Railroad v. Freeman (1892)

Fifteen years after Sullivan, Justice McClellan, in Richmond & Danville R railroad v. Freeman, 97 Ala. 289, 11 So. 800 (Ala. 1892), seriously brought the Sullivan holding into question. Justice McClellan opined that if the nature of damages was still an open question, he would be inclined to find them compensatory in nature.¹⁷ Justice McClellan reasoned that the legislative intent was to compensate the next of kin through compensatory damages and through punitive damages in only those situations where such damages would have been recoverable had the injury fallen short of death.¹⁸ Furthermore, Justice McClellan opined that the Sullivan court relied too heavily on the Homicide Act's title, "To Prevent Homicide" in reaching its conclusion.¹⁹ However, Justice McClellan made clear that the question was not open and had clearly been decided by Sullivan and cases that followed it. The Court opined that is was clearly "within legislative competency . . . to punish negligence" and because the state Legislature had, by re-enacting or amending the statute without challenging or changing the judicial interpretations, effectively approved it.²⁰ Therefore, the punitive nature of the damages, as previously interpreted by Sullivan and subsequently approved by acquiescence of the legislature, remained in tact.

2. Hull v. Wimberly & Thomas Hardware (1912)

Similarly, Justice Simpson, in Hull v. Wimberly & Thomas Hardware Co., 178 Ala. 538, 59 So. 568 (Ala. 1912), declared that the Sullivan interpretation had been a mistake. He reasoned that the language of the statute "as the jury may assess" was merely meant to repeal the previous $3,000 cap on the amount recoverable and to allow the jury to make its own determination "under the general principles of the law."²¹ However, the "fact that a wrong conclusion was arrived at under the Homicide Act does not justify this court in wrongly deciding as to the effect of this statute, after the court had so long acquiesced in the proper construction."²² Again, the punitive-only interpretation remained intact.

3. Black Belt Wood Company, Inc. v. Sessions (1987)

In a more recent decision, Black Belt Wood Company, Inc. v. Sessions, 514 So.2d 1249 (Ala. 1987), the Court, although recognizing the punitive damages only interpretation was clearly a judicially created construction, again emphasized its support for the punitive characterization. Again, the Court recognized legislative acquiescence of the original interpretation. Although the Court spoke of its authority to change the construction of the statute to allow recovery of compensatory damages the Court adhered to the traditional punitive-only interpretation.

II. CONSTITUTIONAL CHALLENGES TO THE PUNITIVIE-ONLY CONSTRUCTION OF THE ALABAMA WRONGFUL DEATH ACT

Regular constitutional challenges to Alabama's wrongful death statute have been made over the years. These constitutional challenges of the statute have usually been based upon (1) violation of equal protection due to the exemption of the Alabama Wrongful Death Statute from damage restrictions placed on other tort remedies, (2) the Eight Amendment's excessive fines clause, (3) upon procedural and substantive due process violations based upon punishment of merely negligent defendants and by giving juries unbridled discretion in ascertaining punitive damages and (4) public policy arguments. Despite the relative validity and/or merit of these constitutional challenges, both federal and Alabama state courts have without exception upheld the punitive only interpretation of wrongful death statute.

A. Equal Protection Challenges

Challenges to the Alabama Wrongful Death Statute on the basis that it violates the equal protection clause in the fourteenth amendment have been unsuccessful. The basic argument in this regard is that the exclusion of wrongful death actions from those statutes that restrict punitive damages awards is not a rational method of furthering any legitimate state purpose.

In Louis Pizitz Dry Goods Co., Inc., v. Yeldell, 274 U.S. 112, 47 S.Ct. 509 (1927) the Supreme Court of the United States indirectly discussed the Constitutionality of Alabama's Wrongful Death Statute citing the state's legitimate purpose in deterring homicide. Relying on the state courts' interpretation of the statute as remedial, not penal, in nature, the Court specifically addressed the states' power and purpose, in imposing the punitive damages for wrongful death. "We cannot say that it is beyond the power of a Legislature, . . . to attempt to preserve human life by making homicide expensive. It may impose an extra-ordinary liability ... not only upon those at fault but upon those, who although not directly culpable, are able nevertheless, in the management of their affairs, to guard substantially against the evil to be prevented."²³

In the case of In re Paris Air Crash, 622 F.2d 1315 (9th Cir.), cert. denied, 449 U.S. 976 (1980), the Ninth Circuit Court of Appeals considered the California wrongful death statute that permitted compensatory, but not punitive damages. The trial Court held that the statute was inconsistent with and in violation of the fourteenth amendment equal protection clause.²⁴ The Court of Appeals reversed the trial Court on the basis that the wrongful death statute at issue furthered and bore a rational relationship to the legitimate state interest and purpose of protecting wrongful death defendants from excessive liability.²⁵

In Alabama Power Co. v. Turner, 575 So.2d 551 (Ala. 1991), the Alabama Supreme Court squarely addressed state's interest and purpose in the differential treatment of wrongful death actions from other tort actions with regards to punitive damages.²⁶ The Court first properly limited its review to "whether it [was] conceivable that the classification bear a rational relationship to an end of government that is not prohibited by the Constitution."²⁷ The state's interest in preserving and protecting human life was undeniably a legitimate governmental interest. Additionally, not only was the differential treatment of wrongful death actions from other tort actions warranted because of the severity, by its very nature, of wrongful death, but the classification also furthered the state's interest in preserving human life.²⁸ By classifying wrongful death differently "the legislature [had] undoubtedly recognized that no arbitrary cap can be placed on the value of human life."²⁹

B. Excessive Fines Challenges

Arguments that the "punitive" nature of Alabama's wrongful death damages required an analysis of the Eighth Amendment's prohibition on excessive fines were asserted frequently after the Supreme Court's decision in Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401 (1977). Ingraham stated that some actions, though not labeled crimes by the state, may be sufficiently analogous to criminal situations to justify imposition of the Eighth Amendment's prohibitions.³⁰ Thus, defendants in wrongful death cases argued that the Wrongful Death Statute's punishments were "quasi-criminal" in nature, justifying an "excessive fines" analysis.³¹

Alabama Courts consistently refused to reason that quasi-criminal sanctions referred to in Ingraham included claims of excessive jury verdicts in civil cases.³² The Court reasoned that "[s]uch circular reasoning would make little sense and bad law."³³ In one case, the defendant specifically argued that the Eight Amendment required that the jury be loosely restricted to the proportionality of the "penalty" to the "circumstances." Even this loose restriction was too tight based on the Eight Amendment, which according to the Court, was simply inapplicable in civil cases. A later Supreme Court decision confirmed that the "excessive fines" clause was not applicable to awards of punitive damages in cases between private parties. ³⁴

C. Due Process Challenges

The challenges to the Wrongful Death Statute as violating the Due Process clause, whether procedural or substantive, generally speaking fall within two basic categories. The first category is based upon the imposition of punitive damages for mere negligence - meaning a defendant is punished regardless of his fault or level of culpability. The second category focuses on the level of the jury's discretion in awarding such damages without any objective instruction or criteria on which to access damages.

1. Simple Negligence

The cases interpreting Alabama's Wrongful Death Statute, both state and federal, have upheld the imposition of punitive damages for simple negligence. The 1893 Freeman case (cited infra) stated that "[i]t is as clearly within legislative competency, of course, to punish negligence as it is to punish wantonness, willfulness or intentional wrong doing….We conceive no basis for the distinction between the power to punish in this way for negligence and such power in respect of wantonness and the like when brought to the touch of constitutional guarantee[s]."³⁵ Although defendants have continually criticized the imposition of damages on merely negligent defendants, the Courts, have consistently upheld it as a constitutional exercise of the state's legislative authority. The reasoning offered by the Alabama Supreme Court in Central Alabama Electric Corp., v. Tapley, 546 So.2d 371 (Ala. 1989) is instructive: "The sanctity of human life, the noble goal of preserving human life, and society's desire to punish those whose conduct results in the loss of human life, have all been accepted by our Legislature as criteria outweighing the seemingly anomaly of permitting punitive damages for simple negligence. This view rests on the premise that one may be adequately compensated for his injuries, but the value of a human life has no measure."

3. Apportionment of Damages Among Joint Tortfeasors

Another area of challenge against the Alabama Wrongful Death Act is the fact that the Act does not allow for the apportionment of punitive damages among joint tortfeasors. It has been argued that it is fundamentally unfair in cases involving multiple defendants for the jury to award punitive damages without taking into account the relative culpability of each defendant. In the case of Black Belt Wood Co. v. Sessions, 514 So.2d 1257 (Ala. 1987) the Court considered a wrongful death case involving multiple defendants and refused to deviate from the long-standing rule of non-apportionment.³⁶ The Court relied upon the case of Bell v. Riley Bus Lines, 57 So.2d 612 (1952) and stated that Alabama's Wrongful Death Statute does not allow for the apportionment of damages among joint tortfeasors "nor does it recognize degrees of culpability."³⁷ The Court stated it is the "[w]ell settled trial practice in our courts…to require a single verdict, fixing a lump sum regardless of the culpability of tortfeasors. In the absence of express legislative authority we are not willing to depart from this well settled trial practice."³⁸ Again, the Court deferred to the Alabama legislature with respect to any changes or modifications in terms of application of the wrongful death statute.

3. Jury Discretion

In the Tapley decision discussed infra, the Court addressed the issue of whether it was "fundamentally unfair for a jury to award punitive damages without the guidance of objective criteria."³⁹ The three basic criticisms advanced by the defendants were the "lack of sophistication of jurors," the tendency to overcompensate for noneconomic damages, and the apparent "unbridled" discretion of juries in awarding punitive damages.⁴⁰ However, the Court found these general criticisms were on the civil system as a whole, not on the Wrongful Death Statute in particular.⁴¹ Additionally, the Court found that the defendant has more than adequate safeguards in place against such excessive awards. Namely, a defendant may move for a remittitur and a new trial and is entitled to a de novo review on appeal.⁴² Despite the wide discretion of juries in awarding damages, Alabama courts apparently are of the view that juries do not have "unbridled" discretion given the mechanisms in place for reviewing jury awarded damages.

D. Public Policy Challenges

Challenges have also been made against the Alabama Wrongful Death Act on the basis that the punitive-only construction of the act violates public policy. Most notably, in the case of Merrell v. Alabama Power Company, 382 So.2d 494 (Ala. 1980), a plaintiff argued that the Court's interpretation of the Act to deny recovery of compensatory damages and allow only for the imposition of punitive damages was unconstitutional as against public policy in that it violated the common law of England. The plaintiff argued that the Act should be construed to provide for the recovery of compensatory damages and that punitive damages should be awarded in cases in which a wrongful death was caused by malicious, wanton, willful and reckless conduct.⁴³ The Court rejected plaintiff's argument citing the Shearer and Sullivan and Freeman cases (discussed infra). The Court again stated that the purpose of the statute was to prevent homicide.

III. RECENT DECISIONS AFFECTING THE HANDLING OF WRONGFUL DEATH CASES UNDER THE ALABMA MEDICAL LIABILITY ACT

A. Statute of Limitations

The Alabama Wrongful Death Act provides for a two-year statute of limitations. The act specifies that "[s]uch action must be commenced with two years from and after the death of the testator or intestate."⁴⁴ Recent cases have arisen with respect to the relationship between the two-year statute in the wrongful death statute and the statute of limitations applicable in other statutory causes of action particularly under the Alabama Medical Liability Act codified at Alabama Code § 6-5-484 et seq. (1975).

The Alabama Medical Liability Act ["AMLA"] states, "All actions against physicians, surgeons, . . . for liability, error, mistake or failure to cure, whether based on contract or tort, must be commenced within two years of the act giving rise to the claim or within six months of discovery; in no event are claims to be filed more than four years after the act." Obviously, the statute of limitations contained in the Wrongful Death Statute conflict with the statute of limitations contained in the Alabama Medical Liability Act. Inevitably the question arose as to which statute of limitations applies when a wrongful death arises from alleged medical malpractice?

In the recent cases of Okeke v. Craig, 2000 WL 1678447 (Nov. 9, 2000) and Hall v. Chi, 2000 WL 1273684 (Sept. 8, 2000) the Alabama Supreme Court, building upon holdings in earlier cases⁴⁵ answered this question by essentially holding that the statute of limitations for the AMLA is determinative when the action that allegedly caused the death was medical malpractice.

1. Hall v. Chi

In Hall the decedent filed a medical malpractice claim stemming from a hip replacement surgery performed on October 17, 1996. The decedent died on July 12, 1997, and his personal representative filed a wrongful death claim alleging negligence stemming from an October 1996 surgery within two years of the death, but not within two years of the surgery. The defendants, who successfully moved for judgment of the pleadings at the trial court, relied on Curtis v. Quality Floors, Inc., 653 So. 2d 963 (Ala. 1995), in which the court refused to allow a personal representative to add a second defendant and wrongful death claim to a pending personal injury claim because the decedent, if alive, would have been time barred from doing so.

In rejecting the defendant's argument, the Court distinguished Curtis from Hall stating that the statute of limitations had already run against the defendant sought to be added.⁴⁶ In Hall, the decedent had a viable medical malpractice claim pending at the time of his death. Relying on this distinction, the Court held that if "the decedent had a viable medical malpractice claim when he died, then decedent's personal representative could, within two years after [death], bring a wrongful-death action alleging medical malpractice."⁴⁷ Thus, the wrongful death action had been timely filed and the trial court's judgment was reversed.

2. Okeke v. Craig

Although Hall clearly established that the Wrongful Death Statute's two year period prevailed where there was already a pending and viable medical malpractice claim, the law was less clear where the wrongful death stemmed from an act of malpractice and the decedent had failed to timely file the underlying medical malpractice claim that caused the death. In Okeke v. Craig, the Alabama Supreme Court clarified the question by holding that the AMLA's limitations period determined if a wrongful death action survived.

In Okeke, a wrongful death action was filed on July 21, 1999, alleging negligence on the part of the defendant doctor for failing to diagnose the decedent's cardiovascular disease.⁴⁸ The decedent last saw the defendant doctor for treatment on July 17, 1995.⁴⁹ The decedent died on July 22, 1997 without ever bringing a medical malpractice claim against the doctor.⁵⁰ In making a determination as to whether the wrongful death action was timely filed, the Court relied on Hall (discussed infra) and held that a "wrongful-death action is barred by the statute of limitations if the decedent, on the date of her death, would have been time-barred from filing a medical-malpractice claim based on the medical malpractice that is alleged to have caused the death."⁵¹ The court remanded the case to the trial court for determination as to whether the decedent's medical malpractice claim was timely filed in light of the statutory period set forth in the AMLA.

B. Pleadings & Procedure

1. Personal Representative Assumes Decedent's Citizenship for Diversity

James v. Three Notch Medical Center, 966 F.Supp. 1112, 1114 & 1116 (M.D. Ala. 1997). In interpreting the language of 28 U.S.C.A. § 1332(c)(1), an addition by Congress to the statute creating diversity jurisdiction, a federal district court held that a personal representative of a decedent's estate assumes the decedent's citizenship for the purpose of creating diversity in federal courts. The district court reasoned that because the personal representative represents the estate, it is the "nature of the representative capacity of the person bringing the action, and not whether that position is being exercised for the benefit of the decedent's estate" that is the focus of § 1332(c). Thus, the case was dismissed for lack of diversity where the personal representative, a citizen of Florida, assumed the decedent's Alabama citizenship for diversity purposes in a wrongful death suit against Alabama defendants.

2. Relation Back & Timely Appointment

In Ogle v. Gordon, 706 So. 2d 707 (Ala. 1997), the Alabama Supreme Court concluded that the probate court's failure to issue letters of administration to the plaintiff, decedent's husband, within the two year time period did not bar a wrongful death action where the plaintiff petitioned for the letters of administration within and filed the action within the two year time period. Ogle overruled Strickland v. Mobile Towing & Wrecking Co., 303 So.2d 98 (Ala. 1974) which was decided well before the Alabama Legislature's codification of the relation back doctrine.⁵² Under this relation back codification, the appointment of the plaintiff related back to the plaintiff's petitioning of the probate court for letters of administration.

IV. PRACTICAL AND ETHICAL CONSIDERATIONS IN HANDLING WRONGFUL DEATH CASES UNDER THE ALABAMA MEDICAL LIABILITY ACT

This paper has discussed many aspects of how the Alabama Wrongful Death Statute is interpreted by both state and federal Courts. It doesn't appear likely that the Alabama Supreme Court or the Alabama legislature will do anything to upset Alabama's unique position as the only state in the country whose wrongful death statute allows only for the imposition of punitive damages. As such, the practitioner who is handling wrongful death cases must become familiar with the law pertaining to and interpreting the Alabama wrongful death statute and stay abreast of judicial and legislative developments that arise in this area.

In addition to the unique judicial interpretation of the statute as it relates to damages, there are several other provisions of the act that lawyers who handle wrongful death cases brought pursuant to the Alabama Wrongful Death statute must be cognizant of. These provision are discussed below.

A. Survival of Claims

One of the most important considerations in handling wrongful death cases is knowing what causes of actions survive the death of a person. Alabama has a survival statute codified at Alabama Code § 6-5-462 (1975). It provides that the following claims survive death:

(a) all claims upon which an action has been filed; (b) claims based on contract, express or implied, even if no action has been filed; (c) personal claims upon which an action has been filed, except for injuries to a person's reputation.

These actions survive in favor of the deceased's personal representative. From a practical standpoint, the most important point to be made concerning the survival statute and its relationship with the wrongful death statute is the fact that causes of action that are not specifically listed in the survival statute do not survive death. As such, causes of action for personal injury that are not filed prior to the death of the injured person and that are unrelated to the death of the person cannot generally be filed after death.⁵³ If the person's injuries actually cause the death of the individual, then the cause of action is properly brought under the Wrongful Death Statute and only punitive damages may be recovered.⁵⁴ As such, it is incumbent upon the attorney present with a serious injury case to file the case as soon as possible. If the injury claim is filed prior to the death of the injured person, the decedent's estate can recover compensatory damages in addition to punitive damages.

B. Personal Representative

The Alabama Wrongful Death Act requires that a "personal representative" commence a wrongful death action.⁵⁵ A question that often arises in wrongful death cases involves who is the "personal representative" that can bring a wrongful death claim on behalf of a deceased individual. It is generally accepted that "personal representative" as it is set forth in the wrongful death act means the executor or the administrator of the estate of the deceased.⁵⁶

If presented with a wrongful death case, a lawyer must take immediate steps to identify who is named as the executor of the deceased's estate under the deceased's last will and testament. The will should be entered into probate in the county in which the deceased was a resident as quickly as possible and letters of administration obtained form the probate court.

If there is no will, the lawyer must take steps to have a administrator appointed through the probate court of the county in which the deceased was resident. Having an administrator appointed takes considerable time in some jurisdictions due to the requirements of probate. As such, the lawyer handling a wrongful death case must be cognizant of the statute of limitations. It is generally held that a case filed without a duly appointed personal representative prior to the expiration of the two-year statute of limitations, the case is a nullity and the statute is deemed to have.⁵⁷

C. Distribution of Wrongful Death Recoveries

Another question that often arises in wrongful death cases is the manner in which a wrongful death recovery must be distributed. Interestingly, the wrongful death recoveries must be distributed by the personal representative to the deceased's heirs pursuant to the statute of distributions codified at Alabama Code § 43-8-40 et seq. (1975).⁵⁸ Any lawyer handling a wrongful death case brought pursuant to the Alabama Wrongful Death Act must maintain strong communication with clients concerning who the identities of the legal heirs of the deceased. Many times lawyers handling wrongful death cases find themselves sued by disgruntled heirs who were not included in the distribution of a wrongful death recovery. There are several ways to negotiate this potential pitfall including having the personal representative in whose name the wrongful death action is brought to sign an affidavit listing all the heirs of the deceased or by having a lawyer who is an expert in the field of probate law handle all probate aspects of the case.

¹ Bert S. Nettles & Forrest S. Latta, Alabama's Wrongful Death Statute: A Problematic Existence, 40 ALA. L. REV. 475, 479 (1998). ² The Internal Revenue Service does not consider recoveries of punitive damages in lawsuits brought pursuant to the Alabama wrongful death statute to be income for purposes of income taxation. Rather, the recoveries are considered to be compensatory and thus not subject to the imposition of income tax. I.R.S. Rev. Rul. 84-108 ³ Bert S. Nettles & Forrest S. Latta, Alabama's Wrongful Death Statute: A Problematic Existence, 40 ALA. L. REV. 475, 479 (1998). ⁴ Campbell v. Williams, 638 So.2d 804, 808 (Ala. 1994)(quoting § 1941 Ala. Code 1860). ⁵ Nettles & Latta, supra note 1 at 481. ⁶ Campbell v. Williams, 638 So.2d 804, 808 (Ala. 1994)(quoting §§ 1938-39 Ala. Code 1860). ⁷ Central of Georgia Railway v. Ellison, 75 So. 159, 163 ( Ala. 1916); Savannah & M.R.R. v. Shearer, 58 Ala. 672, 679 (Ala. 1877): These cases provide very good discussion concerning the enactment of the 1872 amendments to the Wrongful Death Statute. ⁸ Shearer, 58 Ala. 672, 680 (1877) ⁹ Id. ¹⁰ Id. ¹¹ 59 Ala. 272, 278 - 9 (1877) citing Shearer, supra. ¹² Id. ¹³ The statute is also applicable to counties and municipalities. See City of Anniston v. Hillman, 126 So. 169 (Ala. 1930)(applying to municipalities); Shannon v. Jefferson County, 27 So. 977 (Ala. 1990)(applying statute to counties). ¹⁴ "That when the death of a person is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action against the latter. . . if the former could have maintained an action against the latter for the same act or omission, had it failed to produce death, and may recover such sum as the jury deem just." Campbell, 638 So. 2d at 807. ¹⁵ Act of February 5, 1872, No. 62 § 1, 1871 Ala. Acts 83. ¹⁶ Ala. Code § 1-3-1 (1975): The common law of England, so far as it is not inconsistent with the Constitution, laws and institutions of this state, shall together with such institutions and laws, be the rule of decisions, and shall continue in force, except as from time to time it may be altered or repealed by the legislature. ¹⁷ Freeman, 97 Ala. at 296, 11 So. At 802. ¹⁸ Id. ¹⁹ Id. ²⁰ Id. ²¹ Hull, 97 Ala. at 545, 59 So. at 570. ²² Id. ²³ Louis Pizitz Dry Goods Co., 274 U.S. at 510. ²⁴ In re Parish Air Crash, 622 F.2d at 1316. ²⁵ Id. at 1319. ²⁶ These restrictions limited punitive damages to tort actions for oppression, fraud, wantonness, or malice proven by clear and convincing evidence and there was a ceiling of $250,000 on such awards. ²⁷ Alabama Power Co., 575 So.2d at 553. ²⁸ Id. at 554. ²⁹ Id. at 556. ³⁰ Ingraham, 430 U.S. 631 (1977) ³¹ Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala. 1989). ³² See Alabama Power Co. v. Turner, 575 So.2d 551, 553 (Ala. 1991); Killough v. Jahandarafard, 578 So.2d 1041 (Ala. 1991); Industrial Chemical & Fiberglass Corp. v. Chandler, 547 So. 2d 812 (Ala. 1989), Central Alabama Electric Corp. v. Tapley, 546 So.2d 371 (Ala. 1989). ³³ Tapley, 546 So.2d at 375. ³⁴ Browning-Ferris Indust. Of Vermont, Inc. v. Keico Disposal, Inc., 109 S.Ct. 2909 (1989). ³⁵ Freeman, 97 Ala. 289 at 296, 11 So. 800, 802 (1892) ³⁶ Also see Campbell v. Williams, 638 So.2d 804 (Ala. 1994). ³⁷ Black Belt Wood, 514 So.2d at 614. ³⁸ Id. at 615 ³⁹ Central Alabama Electric Corp., v. Tapley, 546 So.2d 371 (Ala. 1989) ⁴⁰ Id. ⁴¹ Id. ⁴² Id. ⁴³ Merrell, 382 So.2d at 494-5 (1980). ⁴⁴ Ala. Code § 6-5-410(d) ⁴⁵ See McMickens v. Waldrop, 406 So.2d 867 (Ala.1981). ⁴⁶ Hall, 2000 WL 1273684 at 3. ⁴⁷ Id. at 4. ⁴⁸ Okeke, 2000 WL 1678447 at 1. ⁴⁹ Id. at 1. ⁵⁰ Id. ⁵¹ Id. at 2. ⁵² Alabama Code § 43-2-831 (1975) ⁵³ See: Huckaby v. East Alabama Medical Center, 830 F.Supp. 1399 (M.D. Ala. 1993) ⁵⁴ See: King. v. National Spa & Pool Institute, Inc. 607 So.2d 1241 (Ala. 1992) ⁵⁵ Alabama Code § 6-5-410 (1975). ⁵⁶ Hatas v. Partin, 175 So.2d 759 (Ala. 1965); Downtown Nursing Home, Inc. v. Pool, 375 So.2d 465 (Ala. 1979) ⁵⁷ Downtown Nursing Home, Inc. v. Pool, So.2d 465 (Ala.1979)
⁵⁸ Baggett v. Sellers, 210 So.2d 796 (Ala. 1973); Kuykendall v. Edmondson, 87 So.882 (Ala. 1921). Damages recovered under in wrongful death cases brought pursuant to the wrongful death statute are not generally subject to the debts and liabilities of the deceased.