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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