Ex parte TruckMax, Inc., and Babco Engineering, LLC, [Ms. SC-2022-0957, Feb. 17, 2023] __ So. 3d __ (Ala. 2023). The Court (Sellers, J.; Parker, C.J., and Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Shaw and Cook, JJ., concur in the result) denies TruckMax, Inc.’s petition for a writ of mandamus directing the Jefferson Circuit Court ("the trial court") to allow TruckMax to amend its answer in this workers' compensation/wrongful-death action so that TruckMax may assert lack of capacity of plaintiff, Latosha Caster-Harris, wife of the decedent, Joseph Harris.
The Court first notes that " 'surviving dependents of a deceased employee have the capacity to bring an action [for wrongful death] and ... a defendant waives the challenge to capacity by not raising it.' " Ms. *2, quoting Ex parte Tyson Foods, Inc., 146 So. 3d 1041, 1044 (Ala. 2013).
The Court holds that TruckMax failed to carry its burden to establish the propriety of mandamus review of the trial court's denial of its motion to amend its answer filed. The Court concludes that appeal was an adequate remedy due to the presence of another plaintiff whose status as a dependent was not challenged. In this regard, the Court notes “the parties do not provide significant discussion regarding how this action would be affected if only Joseph's mother, and not Latosha, were allowed to proceed against TruckMax. For example, they do not discuss whether damages, or apportionment thereof, might be affected by that circumstance.” Ms. *13, n. 4.
The Court notes the denial of the petition "does not suggest that mandamus relief can never be appropriate with respect to a trial court's refusal to allow a defendant to amend an answer to raise a previously omitted affirmative defense." Ms. *13.