Clark Sand Co. v. Kelly
2011 Miss. LEXIS 227
| Miss. | 2011Background
- Kelley filed a Mississippi wrongful-death action on March 5, 2007, asserting Bozeman’s death and seeking survival and wrongful-death damages; the suit followed the dismissal of a related mass-tort/remedial claim (McBride) in 2006.
- Bozeman had died in 2005; Kelley was his live‑in girlfriend and named executrix in his will, but Alabama probate proceedings had not yet formalized her executorship at filing.
- Clark Sand moved for summary judgment arguing lack of standing and untimeliness under the survival saving statute (Miss. Code Ann. § 15-1-55) and that Kelley had no common-law marriage to Bozeman at death.
- McBride’s dismissal was “for form” rather than on the merits, raising questions about whether the saving statute tolled the claims and whether Kelley could sue as Bozeman’s personal representative or as an interested party.
- The trial court and the Mississippi Supreme Court considered whether Kelley could establish a common-law marriage with Bozeman under Alabama law, which would affect her standing as Bozeman’s widow and as an interested party; the Alabama court had vacated a prior common-law marriage determination, leaving the question for trial.
- The court ultimately remanded for trial to determine whether a common-law marriage existed at Bozeman’s death, affecting Kelley’s standing and the viability of the wrongful-death claims; survival-type claims were held time-barred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing under wrongful-death statute if Kelley was Bozeman’s common-law wife | Kelley claims standing as Bozeman’s widow via common-law marriage under Alabama law | Without formal appointment or common-law marriage proven, Kelley lacks standing | Genuine issue of material fact; remand for trial on common-law marriage to determine standing |
| Application of saving statute to survival-type claims | Saving statute tolls and preserves survival claims via previous dismissal | Saving statute does not apply due to differences in parties/claims and lack of substitution | Survival-type claims time-barred; no tolling by saving statute |
| Status of Kelley as Bozeman's personal representative at filing | Named executrix in will gives authority to sue as personal representative | Appointment not formalized before filing; cannot be personal representative yet | Issue unresolved on summary judgment; trial needed to resolve executorship timing and effect on standing |
| Interpreting 'interested parties' under wrongful-death statute | Kelley, as executrix or common-law wife or as otherwise related, could be an interested party | Only certain recognized relationships confer legally recognizable interest | Independent of common-law marriage, analysis shows potential interested-party status; remand for trial on ultimate standing |
| Whether common-law marriage is required to confer widow status for standing | Alabama common-law marriage grants widow status and thus standing | No common-law marriage proven; cannot confer widow status | Conclusion deferred to resolution of common-law marriage at trial; standing may depend on outcome |
Key Cases Cited
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (U.S. 1992) (standing requires injury, causation, and redressability; as of suit’s start)
- Delta Health Group, Inc. v. Estate of Pope, 995 So.2d 123 (Miss. 2008) (standing determined as of commencement of suit)
- Long v. McKinney, 897 So.2d 160 (Miss. 2004) (estate must be opened; personal representative authority discussed)
- Burley v. Douglas, 26 So.3d 1013 (Miss. 2009) (interested party includes statutory heirs; broader scope noted)
- Cleveland v. Mann, 942 So.2d 108 (Miss. 2006) (interested-party concept expanded beyond statutory heirs)
- Harris v. Darby, 17 So.3d 1076 (Miss. 2009) (saving statute substitution and Rule 25 substitution timelines clarified)
- Canadian National v. Smith, 926 So.2d 839 (Miss. 2006) (saving statute applicable to form-based dismissals)
- Smith v. Canadian National, 926 So.2d 839 (Miss. 2006) (severance of misjoined claims; saving statute context)