Court of Appeals of Georgia, First Division, June 25, 2021
Alleging that he contracted malignant pleural mesothelioma due to his workplace exposure to asbestos, Charles Brannan and his wife, Louise Brannan, filed a complaint for damages against several defendants in 2015. The plaintiffs asserted claims for negligence, product liability, and loss of consortium. Later that year, Charles Brannan passed away, and one of the defendants filed a notice of suggestion of death. Two months later, his wife, Louise, was appointed as the executor of the estate.
On September 14, 2016, 11 months after Charles’s death, Louise filed an amended complaint, removing Charles as a plaintiff and adding herself as a co-plaintiff as the representative of the estate. The first amended complaint reasserted the personal injury claims on behalf of the estate, and Louise brought counts for loss of consortium and wrongful death. That same day, Louise filed a motion to modify the caption to reflect the changes made in her amended complaint. The defendants opposed this motion.
The defendants then moved to dismiss the personal injury claims because the representative of the estate had not moved to substitute herself as a plaintiff within 180 days of the notice of suggestion of death as required by OCGA § 9-11-25 (a)(1). Louise then voluntarily dismissed all claims brought in her complaint.
Five weeks later, Louise filed a second complaint in the same county both in her individual capacity and as the representative of her husband’s estate, bringing the second claims as she previously did in the amended complaint in the prior suit. In response, defendant Union Carbide Corporation (UCC) filed a motion to dismiss, arguing that the plaintiff’s claims were barred, as there was a prior pending action between the parties related to the same subject matter. UCC claimed that Louise could not unilaterally dismiss the claims brought in the prior action because she was never properly substituted as the plaintiff for those claims, and so the personal injury claims remained pending in the first action. As such, the prior pending action doctrine set forth in OCGA § 9-2-5 barred the duplicative claims. The trial court found that Louise’s failure to formally substitute herself as the estate representative did not void her later dismissal of the decedent’s claims, and UCC appealed this decision.
The appellate court found that a plaintiff’s right to voluntarily dismiss under OCGA § 9-11-41(a) is not abated by the filing of a motion to dismiss for failure to substitute a party defendant, citing Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 338 (1) (249 SE2d 21) (1978). In Wofford, the court held that a plaintiff was allowed to avoid the consequences of failing to substitute a party defendant within the 180-day time period by voluntarily dismissing the action and then refiling it against the personal representative of the deceased. The court applied the same rationale to this appeal and found that—because Louise had dismissed her pending claims in the first action and because Charles was deceased and, therefore, could not be a party to a legal proceeding under Georgia law—no living plaintiff remained in the first action. Because Louise refiled the complaint within the applicable statute of limitation, the court upheld the trial court’s denial of UCC’s motion to dismiss.