NEBRASKA — In Bettisworth v. BNSF Railway Company, the court denied a defendant’s motion for summary judgment, which argued that the plaintiff was not the properly appointed representative for his late wife’s estate. The plaintiff’s wife was employed by the defendant from 1979 to 2012 as a laborer/hostler at the defendant’s yard in Alliance, Nebraska. During her employment, she was exposed to various toxic and carcinogenic substances, including various solvents, diesel fuel, benzene, creosote, silica dust, and asbestos insulation. The plaintiff alleged that the cumulative effect of this exposure resulted in his wife developing lung cancer. The plaintiff’s wife passed away on December 31, 2014, and on December 26, 2017, plaintiff filed suit claiming to be the personal representative of his late wife’s estate. The complaint was premised upon the defendant’s negligence. In responding to the defendant’s requests for admissions during discovery, the plaintiff admitted that he had not been appointed as the personal representative of his wife’s estate at the time the action was commenced. The defendant thereafter moved for summary judgment, arguing that by the plaintiff’s own admission, he did not have standing to bring the action.
The court held that the defendant’s motion did not allege that the plaintiff failed to meet the necessary elements for standing, but instead argued that the plaintiff was not a proper party or did not have the capacity to sue on his late wife’s behalf, as a result of not being appointed personal representative for her estate. The court considered the defendant’s motion for summary judgment on standing to actually constitute an objection that the plaintiff was not the real party in interest. The court analyzed a section of FELA regarding railroad liability in cases involving employee’s death resulting from the railroad’s negligence, and held that the plaintiff’s admission that he was not his late wife’s personal representative was also an admission that he was not the real party in interest in the matter.
However, the court denied the defendant’s motion. The court held that it may not dismiss the plaintiff’s complaint until after an objection and a reasonable time has been allowed for the real party to be substituted. The defendant argued that this was not the first time plaintiff’s counsel failed to bring a FELA action in the name of the real party in interest. However, the court held that Fed. R. Civ. P. 17(a)(3) precludes dismissal until after an objection and a reasonable time for substitution has been allowed. Therefore, the court granted the plaintiff’s request for 90 days from the date of the court’s order to obtain appointment as the personal representative for his late wife’s estate, and thereafter seek leave to file an amended complaint.
The case summary is provided with permission of Westlaw here.