Opinion
CASE NO. 3:01-CV-0083-M
December 28, 2001, Decided . December 28, 2001, Filed, Entered
For GEORGE COBBS, plaintiff: Robert Wightman-Cervantes, Attorney at Law, Law Office of Robert Wightman-Cervantes, Dallas, TX USA.
For FORD MOTOR COMPANY, defendant: Earl Bowen Austin, Adolfo R Rodriguez, Jr, Randolph L Burns, Attorneys at Law, Baker Botts, Dallas, TX USA.
For PROGRESSIVE COUNTY MUTUAL INSURANCE COMPANY, movant: R Michael Beene, Attorney at Law, Beene & Lawrence, Dallas, TX USA.
MEMORANDUM ORDER
On January 12, 2001, Plaintiffs Anastacia Johnson ("Anastacia"), by and through her father, George Cobbs ("Cobbs"), and Cobbs individually, brought a wrongful death and survivor product liability action against Ford Motor Company, claiming Ford negligently designed and/or manufactured the rear window of the Lincoln Town Car. The unfortunate death of Deloris Marie Johnson, who drowned attempting to exit the rear window of her automobile during a flash flood, engendered the action. Before the Court is the Defendant's Motion for Summary Judgment, filed November 20, 2001.
ANALYSIS
The Texas Wrongful Death Act allows the "surviving spouse, children, and parents of the deceased" to bring an action to recover damages resulting from the wrongful infliction of injuries resulting in death. Ford contends that Cobbs is not a beneficiary of the Texas Wrongful Death Act because, as a matter of law, he is not a "covered person." Evidence produced pursuant to this Motion neither establishes that Cobbs was married to the deceased nor disproves the relationship. In contrast, the parties apparently concede that Anastacia is the daughter of Deloris Johnson. However, the Texas Wrongful Death Act provides that if none of the individuals identified as entitled to bring a wrongful death action have done so within three calendar months after the death of the decedent, then the executor or administrator "shall" bring and prosecute the wrongful death action "unless requested not to by" all individuals entitled to bring the action. This case was brought by Cobbs as next friend of Anastacia nineteen months after the calendar date of the decedent's death. The record is devoid of any mention of whether individuals entitled to bring a wrongful death action, other than Anastacia, are living, whether an executor or administrator exists, or whether, if so, the executor or administrator was requested by all those with the ability to maintain a wrongful death action not to bring and prosecute such an action. Plaintiffs filed no response to the Motion for Summary Judgment.
TEX. CIV. PRAC. & REM. CODE § 71.004(a) (Vernon 1997).
A covered person under the Texas Wrongful Death Act includes either a surviving spouse, child, or parent of the deceased, or if none of these individuals has begun an action within three calendar months after the death of the deceased, his executor or administrator. Id.
TEX. CIV. PRAC. & REM. CODE § 71.004(c) (Vernon 1997). See also In re Davis, 194 F.3d 570, 572 (5th Cir. 1999) ("Under the Texas wrongful death statute, [the] Administratix was required to bring and prosecute the action because none of the children and parents of the deceased began such an action within three months after the decedent's death").
The Texas Survival Statute preserves for the decedent's estate causes of action that she could have brought while living. Cobbs has failed to produce evidence establishing that he was either an heir or a legal representative of the decedent. Likewise, although Plaintiffs have pled that the decedent was the mother of Anastacia, they have failed to plead and prove that no estate administration is pending or necessary, a prerequisite to the bringing of a survival claim.
TEX. CIV. PRAC. & REM. CODE § 71.021 (Vernon 1997).
See, e.g., Stewart v. Hardie, 978 S.W.2d 203, 207 (Tex.App.-- Fort Worth 1998, pet. denied) ("For an heir to have standing to bring a survival action within the period allowed for administration of an estate, the heir must generally plead and prove that no administration of the decedent's estate is pending and that none is necessary.").
CONCLUSION
The statutory authority does not, as the record stands, provide Cobbs a portal to bring either a wrongful death claim or a survival action in the name of the decedent. On the current state of the record, Anastacia Johnson, as the daughter of the decedent, has not demonstrated standing to bring either a survival or a wrongful death action. The Court therefore directs the Plaintiffs to advise the Court, in a sworn affidavit, filed on or before January 14, 2002, of the status of the administration of the Estate of Deloris Marie Johnson, any requests made to the executor or administrator regarding prosecution of these claims, and the legal relationship, if any, between Cobbs and the decedent. If no such affidavit is filed, the case will be dismissed. Upon receipt of the affidavit, the Court will determine if Plaintiffs have standing to pursue their claims.
See Texas Employers Ins. Ass'n v. Grimes, 153 Tex. 357, 269 S.W.2d 332, 335 (Tex. 1954); Castillo v. Hidalgo Cty. Water Dist. 1, 771 S.W.2d 633, 635 (Tex.App.-- Corpus Christi 1989, no writ).
See, e.g., Ford Motor Co. v. Cammack, 999 S.W.2d 1, 4-5 (Tex.App.-- Houston [14th Dist.] 1998, pet. denied).
Serv-Air, Inc. v. Profitt, 18 S.W.3d 652, 664 (Tex.App.-- San Antonio 2000, pet. dism'd by agr.) (finding the proper plaintiff after three months was the executor of the estate, not the parents, who did not sue for the benefit of all).
DATED: December 28, 2001
BARBARA M. G. LYNN
UNITED STATES DISTRICT JUDGE
NORTHERN DISTRICT OF TEXAS