Opinion
C.A. No. 08C-11-196 BEN.
May 26, 2010.
Thomas C. Crumplar, Esq., Jacobs Crumplar, P.A., Wilmington, DE.
James W. Semple, Esq. Morris James LLP, Wilmington, DE.
Dear Counsel:
The Court has considered defendant's Motion for Partial Summary Judgment and plaintiffs' opposition thereto.
By way of background, on November 21, 2008, Pauline Barrios, wife of decedent Kenneth Barrios, filed this lawsuit, alleging that Kenneth Barrios' acute myelogenous leukemia was caused by exposure to benzene-containing substances he was exposed to while working for defendant E.I. DuPont de Nemours and Co., Inc. ("DuPont"). The complaint filed by Mrs. Barrios lists as plaintiffs, herself, "Individually and as Representative of the Estate of Kenneth Barrios," and the decedent's three adult children ("the Children"): Randy Barrios, Carrie Fager, and Becky McManus. DuPont moves for partial summary judgment on all claims brought by the Children based on statute of limitations.
DuPont argues that Mrs. Barrios did not bring claims "on behalf" of the Children because she named each of the children in their individual capacity. The Court is not persuaded by this argument. To the extent Mrs. Barrios filed a suit in which she named the Children as plaintiffs, she filed "on behalf" of the Children. Moreover, it is undisputed that the Children are heirs of Kenneth Barrios' estate, and Mrs. Barrios filed this lawsuit individually and as representative of the estate.
It is undisputed that the attorneys who filed this lawsuit did not represent the Children at the time they filed it, and had not been authorized by the Children to file this lawsuit on their behalf. It is also undisputed that the Children did not become aware of this lawsuit until July 2009, and their first contact with the attorneys who filed this lawsuit was not until October 2009. Assuming, as Mrs. Barrios' attorneys suggest, that the Children ratified the attorneys' actions (of naming them as plaintiffs and filing this suit) in October 2009, that ratification occurred after the statute of limitations expired.
Plaintiffs argue that under the Texas Wrongful Death Statute, Mrs. Barrios was and is permitted to institute this action without the knowledge or consent of the Children. DuPont counters, pointing out that the wrongful death claims have already been dismissed on the ground that they are barred by the Texas Workers' Compensation Act ("TWCA"), and the TWCA does not authorize an action in a representative capacity. Simply stated, DuPont argues that Mrs. Barrios cannot rely on Section 71.004 of the Wrongful Death Statute because the wrongful death claims have been dismissed, her only remaining claim is a claim under the TWCA, and the TWCA does not allow her to file suit on behalf of others who have not authorized such action. Section 408.001(b) of the TWCA provides:
Section 71.004 TEX. CIV. PRAC. REM. CODE states: "(a) An action to recover damages as provided by this subchapter is for the exclusive benefit of the surviving spouse, children, and parents of the deceased. (b) The surviving spouse, children, and parents of the deceased may bring the action or one or more of those individuals may bring the action for the benefit of all. (c) If none of the individuals entitled to bring an action have begun the action within three calendar months after the death of the injured individual, his executor or administrator shall bring and prosecute the action unless requested not to by all of those individuals."
See Section 71.004 (c) TEX. CIV. PRAC. REM. CODE.
See Order, Dec. 26, 2009, D.I. 81, which dismissed all claims except the claims alleged in Count IX of Plaintiffs' Complaint. The sole claim remaining is a gross negligence claim.
The TWCA does allow a qualified family member of a decedent to recover damages for wrongful death, in the event that the death was caused by gross negligence. Callis v. Union Carbide Chem. and Platics Corp., 932 F. Supp. 168 (S.D. Tex. 1996).
Defs.' Resp. Br., D.I. 94 at 4-5.
This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer's gross negligence.
As noted in Callis, "while the Workers' Compensation Act generally provides the exclusive remedy for work-related injuries, it does not prohibit the recovery of exemplary damages under the [Texas] Wrongful Death Act for gross negligence resulting in death." Plaintiffs here seek exemplary damages for alleged gross negligence resulting in Kenneth Barrios' death. Under Callis, the TWCA exclusivity bar does not preclude them from pursuing a gross negligence claim under the Texas Wrongful Death Statute. Under the circumstances presented here, when suit was first filed, it included wrongful death claims. At the time she caused the suit to be filed, Mrs. Barrios was authorized under the Texas Wrongful Death Statute to file suit on the Children's behalf, without their prior authorization.
Callis, 932 F. Supp. at 170-71 (italics in original).
WHEREFORE, DuPont's Motion for Partial Summary Judgment is DENIED.
IT IS SO ORDERED.