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Brown v. Pine Bluff Nursing Home12/2/2004
write separately because I believe that this court has erred in the past by holding that a wrongful death action is derivative of the decedent's action for the injuries causing death. However, this case does not provide the appropriate opportunity to overrule the prior cases. This case presents a tragic set of facts; however, this case under our present case law, also presents a failure to preserve a cause of action for injuries suffered by Ed Thomas.
Under current law, any cause of action for injuries suffered by Thomas was extinguished by Brown's failure to timely serve the July 8, 2002, complaint. Because this court long ago erroneously held that a wrongful death action is derivative of an action for injuries suffered by the decedent, the cause of action for wrongful death seeking compensation for injuries suffered by Thomas' next of kin was extinguished along with the cause of action for injuries suffered by Thomas. Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W.2d 485 (1968). See also Estate of Hull v. Union Pacific R.R. Co., 355 Ark. 547, 141 S.W.3d 356 (2004); Simmons First Nat'l Bank v. Abbott, 288 Ark. 304, 705 S.W.2d 3 (1986). The parties in the present case have not challenged the holding of Matthews. The holding of Matthews was not challenged in Simmons or Estate of Hull, and in both those cases, this court followed Matthews pursuant to the doctrine of stare decisis.
In the case before us, Brown argues that the two complaints filed previous to the "Amended Complaint" now at issue did not assert that Pine Bluff Nursing Home caused Thomas's death. She also argues that neither of the two complaints prior to the "Amended Complaint" asserted "wrongful death or survivor actions." The first complaint was non-suited and is not included in the record before this court. The July 8, 2002, complaint alleges a cause of action by Thomas's guardian seeking compensatory and punitive damages for "physical pain and suffering, humiliation, fright and outrage." Thus, Brown asserts that in her first two complaints, she was suing as Thomas's guardian for injuries suffered in his disappearance. The July 8, 2002, complaint was dismissed with prejudice for failure to timely serve under Ark. R. Civ. P. 4(i). That dismissal is not appealed.
If Thomas was alive on July 8, 2002, when the second complaint was filed, his guardian could have proceeded to assert an action on his behalf for his injuries. Ark. Code Ann. §28-65-305 (Repl. 1987). If he was dead, the guardian could bring no such action. However, Ark. Code Ann. §16-62-101 (Supp. 2001) provides that for wrongs done to a person before death, a suit may be brought after the person's death for the benefit of his or her estate. Under Ark. Code Ann. §16-62-102 (Supp. 2001), a wrongful death action may be brought to allow the spouse and next of kin to recover for injuries they suffered as a consequence of a wrongful death.
Thus, while the survival statute provides for compensation to the estate for injuries to the decedent, the wrongful death statute compensates the spouse and next of kin for injuries they suffered as a consequence of the decedent's death. That makes it clear that a wrongful death action is not derivative of any cause of action possessed in life by the decedent, or derivative of any cause of action of the decedent that survives death under Ark. Code Ann. §16-62-101. However, this court in Matthews stated:
We are not overlooking the argument that the administrator's action for wrongful death is to some extent derivative, in that it may be extinguished either by a suit for personal injuries prosecuted by the injured person to a final judgment during his lifetime, Restatement, Judgments, § 92 (19
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