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Ala.Code 1975 § 6-5-462

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Code of Alabama Currentness Title 6. Civil Practice. Chapter 5. Actions. (Refs & Annos) Article 26. . Abatement, Survival, and Revival of Actions. § 6-5-462. Survival -- Claims by and against personal representative in proceedings not of an equitable nature. In all proceedings not of an equitable nature, all claims upon which an action has been filed and all claims upon which no action has been filed on a contract, express or implied, and all personal claims upon which an action has been filed, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal claims upon which no action has been filed survive against the personal representative of a deceased tort-feasor. CREDIT(S) (Code 1852, § 2157; Code 1867, § 2555; Code 1876, § 2920; Code 1886, § 2600; Code 1896, § 35; Code 1907, § 2496; Code 1923, § 5712; Code 1940, T. 7, § 150; Acts 1951, No. 737, p. 1290.) LIBRARY REFERENCES American Digest System: Abatement and Revival

52 to 54, 58.

Corpus Juris Secundum: C.J.S. Abatement and Revival §§ 130 to 148, 150 to 154. C.J.S. Forcible Entry and Detainer § 36. C.J.S. Right of Privacy and Publicity § 41. RESEARCH REFERENCES ALR Library 50 ALR 2nd 1445, Medical Malpractice Action as Abating Upon Death of Either Party. Encyclopedias 16 Am. Jur. Proof of Facts 2d 87, Time of Death: Medicolegal Considerations. Treatises and Practice Aids Alabama Law of Damages § 4:7, Persons Subject to. Alabama Law of Damages § 37:3, Interrelationship Between the Wrongful Death Statutes and the Survival Statute. Alabama Law of Damages § 11:34, Survival of Tort Causes of Action. Alabama Law of Damages § 11:35, Survival of Contract Causes of Action.

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Alabama Law of Damages § 11:36, Revival of Tort Actions. Alabama Law of Damages § 11:37, Revival of Contract Actions. Alabama Law of Damages § 11:38, Wrongful Death. Alabama Law of Damages § 11:40, Equitable Actions and Causes of Action. Alabama Pattern Jury Instructions Civil, 2d 11.43, Combined Damages--Introduction. Alabama Personal Injury and Torts § 9:1, Basis of Action. Alabama Personal Injury and Torts § 9:2, Purpose of Action. Alabama Personal Injury and Torts § 9:3, Who May or Must Bring Action. Alabama Personal Injury and Torts § 13:1, Bad Faith Failure to Pay, Settle, or Investigate Claims. Alabama Personal Injury and Torts § 13:2, Fraud. Alabama Personal Injury and Torts § 10:17, Breach of Fiduciary Duty. Alabama Rules of Civil Procedure Annotated Rule 25, Substitution of Parties. Alabama Workers' Compensation § 21:5, Dependents and Personal Representatives--Dependents as Proper Parties Plaintiff. Alabama Workers' Compensation § 19:30, Constitutionality of Coemployee Immunity for Wrongful Death Actions. CASENOTES Appeals 31 Brain death 26 Breach of warranty 20 Claims against county 16 Claims upon which an action has been filed 6 Claims upon which no action has been filed 5 Common law 4 Constitutionality 1 Construction and application 2 Contract actions 10 Dismissal of action 28 Divorce actions 17 Election of claims 9 Fraud 25 Injuries to reputation 8 Intentional misconduct 22 Judgments 30 Loss of consortium 19 Medical malpractice claims 15 Misrepresentation 24 Motions for substitution 29 Personal claims against personal representative of deceased tort-feasor 7 Personal injury claims 13 Pleadings 27

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Real property 23 Relation to other laws 3 Slander of title 21 Tort claims 11 Trespass actions 18 Workers' compensation 14 Wrongful death actions 12 1. Constitutionality Survival of a personal injury claim where the injury sued upon has resulted in death comports with the letter and spirit of Ala. Const., Art. I, § 13. King v. National Spa and Pool Institute, Inc., 607 So.2d 1241 (Ala.1992). 2. Construction and application Under Alabama law, any personal claims that deceased had prior to his or her death, if they survive at all, survive only in favor of personal representative of his or her probate estate, and no one else. In re Eldridge, 348 B.R. 834 (Bkrtcy.N.D.Ala.2006). Abatement And Revival 54; Death 31(3.1) Legal and equitable claims survive in favor of and against the personal representative of a deceased. Wells v. Wells, 376 So.2d 750 (Ala.Civ.App.1979). The word “action” does not mean or include the phrase “cause of action,” because both the word and the phrase are used to refer to different things and are in no case used as synonyms. Carroll v. Florala Memorial Hospital, Inc., 288 Ala. 118, 257 So.2d 837 (Ala.1972). Statutes intended to aid the survival of “actions” (now claims upon which an action has been filed) are remedial and are to be liberally construed, while those in aid of survival of “causes of action” (now claims upon which no action has been filed) are in derogation of the common law and are to be strictly construed. McDowell v. Henderson Min. Co., 276 Ala.202, 160 So.2d 486 (Ala.1963). Abatement And Revival 50 There is a distinction between “actions” (now claims upon which an action has been filed) and “causes of action” (now claims upon which no action has been filed). An “action” is a proceeding pending in court to determine the parties' rights and liabilities with respect to a legal wrong or cause of action. A “cause of action” is a legal wrong for which an “action” may be, but has not been, commenced in court. McDowell v. Henderson Min. Co., 276 Ala.202, 160 So.2d 486 (Ala.1963). Word “all” is wholly inclusive and embraces every personal cause of action (now claims upon which no action has been filed), including causes of action for wrongful death. Ivey v. Wiggins, 276 Ala. 106, 159 So.2d 618 (Ala.1964). Section applies to Sections 6-5-391 and 6-5-410 when defendant dies. Its application is not limited to a situation where a living person has a claim for his personal injury against another living person, as by § 6-5-71. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (Ala.1954). The word “action” previously used in this section was held not to mean or include the phrase “cause of action.” This section and Code 1940, Tit. 7, §§ 151 and 153 were held to provide for the revival of “actions” when the “cause of actions” survived and for the abatement thereof when the “cause of action” did not survive. State v. Pearce, 14 Ala.App. 628, 71 So. 656 (Ala.App.1916). 3. Relation to other laws The supreme court has construed the survival statute and the wrongful death statute, § 6-5-440, in pari materia. Where an individual suffers an injury from the negligence or intentional conduct of a tortfeasor, he or she has a common-law action for personal injuries. If the injured person dies of a cause unrelated to the subject injuries, after filing a claim, the action can be revived by the personal representative, and damages are recoverable under the survival statute, this section. If the plaintiff dies of his injuries, however, the remedy is under the Wrongful Death Act, § 6-5-410. Mattison v. Kirk, 497 So.2d 120 (Ala.1986).

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Although the cause of action (now claim upon which no action has been filed) may not survive, if no action (now claim upon which an action has been filed) pending at the time of death, the survival of the action commenced during life necessarily implies a survival of the cause of action within the meaning of Code 1940, Tit. 7, § 153 (now covered by A.R.C.P., Rule 25) and § 6-5-465, providing for revivor in favor of or against the personal representative. Ex parte Holsonback, 236 Ala. 265, 182 So. 28 (Ala.1938). Abatement And Revival 52; Abatement And Revival 58(.5) Sections relating to abatement, survival and revival of actions must be construed in pari materia. Ex parte Corder, 222 Ala. 694, 134 So. 130 (Ala.1931). Abatement And Revival 50 4. Common law At common law the death of either party put an end to an action, whether real or personal; however, under present Alabama statutory law, legal and equitable claims survive in favor of and against the personal representative of a deceased. Matthews v. Matthews, 599 So.2d 1218 (Ala.Civ.App.1992). At common law, whether the action was real or personal, the death of either party put an end to the action; and if the cause of action survived, a new action might be commenced, in case of death of plaintiff, by the personal representative. State v. Pearce, 14 Ala.App. 628, 71 So. 656 (Ala.App.1916). 5. Claims upon which no action has been filed Section does not provide that personal causes survive in favor of personal representatives.Ivey v. Wiggins, 276 Ala. 106, 159 So.2d 618 (Ala.1964). This section does not provide that personal causes of action (now claims upon which no action has been filed) survive in favor of the personal representative of a deceased person. Standard Acc. Ins. Co. v. Whitset, 270 Ala. 334, 118 So.2d 922 (Ala.1960). 6. Claims upon which an action has been filed Action for recovery of money lost and paid on wager is personal action (now claim upon which an action has been filed) within the meaning of this section. Motlow v. Johnson, 151 Ala. 276, 44 So. 42 (Ala.1907). Contest of election to office of sheriff is not an action (now claim upon which an action has been filed) within the meaning of this section. Hargett v. Parrish, 114 Ala. 515, 21 So. 993 (Ala.1897). 7. Personal claims against personal representative of deceased tort-feasor An action for wrongful death survives against the personal representative of a deceased defendant and a cause of action for wrongful death also survives. Ellis v. Zuck, 1977, 546 F.2d 643. In an action for fraud, punitive damages may be awarded even though it appears that the wrongdoer died before the entry of judgment. Ellis v. Zuck, 1977, 546 F.2d 643. Motorist's personal injury claims did not cease to exist upon defendant-motorist's death, as such personal injury claims survived against personal representative of defendant-motorist, even when no action had yet been filed, and thus, plaintiff-motorist's personal injury claims against defendant-motorist filed within limitations period, but subsequent to defendant-motorist's death, were valid as to defendant-motorist's estate on date filed. Nelson v. Estate of Frederick, 855 So.2d 1043 (Ala.2003). Abatement And Revival 54; Limitation Of Actions 83(1) Cause of action for wrongful death survives against the personal representative of the deceased tort-feasor. Ivey v. Wiggins, 276 Ala. 106, 159 So.2d 618 (Ala.1964). Death 30

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Statute does provide that personal claims survive against personal representative of deceased tort-feasor.Standard Acc. Ins. Co. v. Whitset, 270 Ala. 334, 118 So.2d 922 (Ala.1960). The circumstance that the damages are punitive did not prevent a survival of an action under § 6-5-391 by virtue of this section before it was amended, although the deceased tort-feasor could not then be punished by the court. The amendment should not prevent its application to the cause of action before the action, and, therefore, the amendment has application to all actions and causes of action not otherwise controlled. Shirley v. Shirley, 261 Ala. 100, 73 So.2d 77 (Ala.1954). 8. Injuries to reputation Where insurance salesman was a former employee of life insurance company and where insurance salesman sued company, alleging that his reputation had been injured, the trial court was correct in dismissing the case because, under the provisions of § 6-5-462, insurance salesman's cause of action abated upon his death. Daugherty v. Mutual Life Ins. Co. of New York, 649 So.2d 857 (Ala.1994). Action for malicious prosecution survives the death of the defendant, although recovery for injury to the reputation of the plaintiff is incidentally involved. Ex parte Upton, 236 Ala. 264, 181 So. 905, 117 A.L.R. 572 (Ala.1938). Abatement And Revival 58(1) Whether an action for malicious prosecution is for an injury to the reputation of a plaintiff, so that the action does not survive the death of the defendant, is not controlled by the fact that the complaint does not claim damages for injury to reputation, which may not be recovered unless they are specially claimed. Ex parte Upton, 236 Ala. 264, 181 So. 905, 117 A.L.R. 572 (Ala.1938). 9. Election of claims While reading § 6-5-440 in pari materia with this section and § 6-5-410 would prohibit an award of damages in plaintiff's favor on both a wrongful death claim and a personal injury survival claim, the provisions of those statutes do not require a plaintiff to make a pretrial election as to which of the alternative claims plaintiff will pursue at trial. Ex parte King, 591 So.2d 464 (Ala.1991). 10. Contract actions A breach of contract claim upon which no action has been filed at the time of death of person holding that claim survives in favor of deceased party's personal representative. McCulley v. SouthTrust Bank of Baldwin County, 575 So.2d 1106 (Ala.1991). Abatement And Revival 53 A contract action pursuant to this section survives in favor of the personal representative regardless of whether the decedent filed the action before his death. Insofar as the plaintiff has stated a contract claim, that claim is one that survives in his favor as executor of the estate. McMahan v. Old Southern Life Ins. Co., 512 So.2d 94 (Ala.1987). A contract action survives in favor of the personal representative regardless of whether the decedent filed the action before his death. The fact that the decedent dies as a result of the injuries sued upon does not change this general rule. Benefield v. Aquaslide N Dive Corp., 406 So.2d 873 (Ala.1981). In asking redress against insurer for defrauding insured of insurance benefits, insured's executor necessarily averred a breach of duty imposed by law whether that duty be of good faith, fair dealing or honest disclosure; and contract merely established the relationship from which such a legally imposed duty could spring, and thus the fraud action brought by executor is ex delicto in nature and as such, did not survive in favor of the personal representative of a deceased person. Sanford v. Western Life Ins. Co., 368 So.2d 260 (Ala.1979). Abatement And Revival 55(3) 11. Tort claims Response by testator's legatee to summary judgment motion by investment advisor and broker-dealer invited any error in conclusion that testator's injury from her mother's forgery of signature to designate herself as beneficiary of

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individual retirement account (IRA) occurred before testator's death and that testator's tort claims did not survive death; legatee argued in the response that injury occurred at time of forged beneficiary designation prior to testator's death. Van Hoof v. Van Hoof, 997 So.2d 278 (Ala.2007), rehearing denied. Appeal and Error 882(18) As a general rule, causes of action in tort do not survive in favor of the personal representative of the deceased. Continental Nat. Indem. Co. v. Fields, 926 So.2d 1033 (Ala.2005). Abatement And Revival 52 Passenger's wife could not recover damages for mental anguish as a result of alleged breach of contract by airline and airport authority in failing to provide wheelchair for passenger; the damages sought sounded in tort, rather than contract. Jordan v. Continental Airlines, Inc., 893 So.2d 446 (Ala.Civ.App.2004), certiorari denied. Damages 57.43 The general rule is that under survival statute, an unfiled tort claim does not survive the death of the person with the claim. Estate of Jones v. State Farm Mut. Auto. Ins. Co., 829 So.2d 170 (Ala.Civ.App.2002). Abatement And Revival 52 A deceased's unfiled tort claims do not survive the death of the putative plaintiff. Bassie v. Obstetrics & Gynecology Associates of Northwest Alabama, P.C., 828 So.2d 280 (Ala.2002). Abatement And Revival 52 Claim based on an alleged breach of the fiduciary duty owed by corporate officers not to engage in unfair dealings, for the purpose of buying shareholder stock at less than real value, sounds in tort rather than contract, and thus an unfiled claim for the breach of that duty does not survive the would-be plaintiff's death. Brooks v. Hill, 717 So.2d 759 (Ala.1998). Abatement And Revival 52; Action 27(1) Because the two bad faith claims were added to a complaint against an insurer after the insured's death, the bad faith claims were the decedent's personal causes of action, and the filing of those claims did not relate back to earlier pleadings in order to escape the operation of the survival statute. Georgia Cas. and Sur. Co. v. White, 582 So.2d 487 (Ala.1991). There was no error in trial court's entering summary judgment on tort claims alleging conversion and suppression of a material fact; a claim sounding in tort, as do executor's claims for conversion and suppression of material facts, does not survive the death of the allegedly injured party in favor of her personal representatives. McCulley v. SouthTrust Bank of Baldwin County, 575 So.2d 1106 (Ala.1991). A claim that defendant physicians “impliedly contracted, undertook, promised or agreed” to provide professional medical care and that each “in violation of said implied contract” failed to provide such medical treatment, causing the plaintiff's decedent to suffer physical and mental pain, sounded in tort, rather than in contract, and, where the claim was not filed before the decedent's death, it did not survive the death of plaintiff's decedent. Lemmond v. Sewell, 473 So.2d 1047 (Ala.1985). Abatement And Revival 54 A claim sounding in tort for which no action has been filed does not survive death in favor of the personal representative. Gillilan v. Federated Guar. Life Ins. Co., 447 So.2d 668 (Ala.1984). Abatement And Revival 52 Where an action sounds in tort and no action is filed before the death of the allegedly defrauded party, it does not survive in favor of his personal representative. Bates v. L & N Emp. Credit Union, 374 So.2d 323 (Ala.1979). Abatement And Revival 55(3) 12. Wrongful death actions Statute does not apply to action for injuries from wrongful act resulting in death, with consequent right of action under § 6-5-410, as lawmakers did not contemplate two actions by administrator of decedent's estate against same defendant for same tort, one to recover for personal injuries for estate's benefit and another to recover punitive damages for benefit of decedent's next of kin. Bruce v. Collier, 221 Ala. 22, 127 So. 553 (1930)Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (1942).

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The estate of a party dying before the entry of judgment in an action for wrongful death should nevertheless be held liable for punitive damages. Ellis v. Zuck, 1977, 546 F.2d 643. An administrator may revive pending action, commenced by decedent before his death, for personal injuries and recover damages allowed by law in such action, unless it appears by proper pleading and proof that death ensued from same wrongful act of defendant, in which event administrator may recover only by action under § 6-5-410. Parker v. Fies & Sons, 243 Ala. 348, 10 So.2d 13 (Ala.1942). Abatement And Revival 58(1) 13. Personal injury claims Plaintiff may not concomitantly maintain a survival action for injuries from a wrongful act resulting in death and a wrongful death action based on the same wrongful act, regardless of the underlying theory of recovery. Simmons v. Pulmosan Safety Equipment Corp., Inc., 471 F.Supp. 999 (S.D.Ala.1979). Action 53(2) The estate's personal injury claim for compensatory damages to compensate for expenses and losses incurred up to the moment of death is not mutually exclusive or inconsistent with the heirs' wrongful death claim for punitive damages. King v. National Spa and Pool Institute, Inc., 607 So.2d 1241 (Ala.1992). Decedent's original personal injury claim did not abate at the moment of his death, but rather survived to his properly substituted personal representative. Because the original complaint did not abate at decedent's death, personal representative was free to amend it to add a claim alleging wrongful death. King v. National Spa and Pool Institute, Inc., 607 So.2d 1241 (Ala.1992). A wrongful death claim for punitive damages payable to the heirs is not the same action as a personal injury claim for compensation based on injuries that cause death. King v. National Spa and Pool Institute, Inc., 607 So.2d 1241 (Ala.1992). 14. Workers' compensation The Workers' Compensation Act has no provision as to survival of a cause of action for benefits, and thus, ordinarily, the answer as to whether a survivor can commence an action for a former employee's benefits would be supplied by the general act as to survival of causes of action which provides that causes of action sounding in contract survive, but those sounding in tort do not. The Workers' Compensation Act is contractual, but any cause of action, right or remedy at common law or by statute of the employee, his personal representative or dependents on account of an injury is excluded by the contract and only those rights and remedies provided by the Workers' Compensation Act are available. Owens v. Ward, 49 Ala.App. 293, 271 So.2d 251 (Ala.Civ.App.1972). 15. Medical malpractice claims Prisoner's medical malpractice claim abated upon his death to the extent that it made claims for personal injury, which were not filed at time of prisoner's death. McDuffie v. Hopper, 982 F.Supp. 817 (M.D.Ala.1997). Abatement And Revival 54 Acts which formed basis for medical malpractice claim against physician who treated motorist following automobile accident were different, both in time as well as in regard to conduct, from acts which formed basis of claim filed by motorist against second driver involved in accident, and thus, amendment of complaint after motorist's death to include medical malpractice claim did not relate back to date of original complaint and did not allow personal injury claim based on malpractice to survive motorist's death. Malcolm v. King, 686 So.2d 231 (Ala.1996). Limitation Of Actions 127(14) 16. Claims against county Where claimant had taken appropriate action to meet the requirement that he first present his claim to the county commission before filing suit against the county; yet the Alabama survival statute, this section, appeared to preclude the claim as one upon which no action has been filed because claimant died before the action was actually filed in court, under the particular facts of this case, and having considered the interaction between the statutory provisions

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involved, claimant commenced an action against the county when he complied with the provisions of § 6-5-20. Groeschner v. Mobile County, 512 So.2d 70 (Ala.1987). 17. Divorce actions Though cause of action for divorce does not survive, death of husband after his appeal from judgment declining his complaint for divorce and allowing alimony to wife and attorney's fee did not abate the action, which was subject to revivor by his personal representative as affecting attorney's fees, temporary allowance to wife and statutory rights of a widow, which were “property rights.” Cox v. Dodd, 242 Ala. 37, 4 So.2d 736 (Ala.1941). Abatement And Revival 69; Abatement And Revival 72(2) 18. Trespass actions A trespass action is a personal claim and not a real property claim; therefore, an action survives in favor of a personal representative of the decedent. Jefferies v. Bush, 608 So.2d 361 (Ala.1992), rehearing denied. 19. Loss of consortium Although husband who, as administrator of his wife's estate, elected to pursue a wrongful death action over wife's personal injury action and the trial court entered a summary judgment in hospital's favor on the wrongful death action, husband was not barred from suing in his individual capacity for damages for loss of consortium caused by his wife's injury, which he contended was caused by the negligence of the hospital. Zimmerman v. Lloyd Noland Foundation, Inc., 582 So.2d 548 (Ala.1991). A spouse's claim for loss of consortium survives where the injured spouse dies from his injuries; this does not compel an election of remedies as between the action for loss of consortium or the action for the spouse's wrongful death under § 6-5-440. Price v. Southern Ry. Co., 470 So.2d 1125 (Ala.1985). There is no reason in law or logic to hold that a wife's cause of action for loss of consortium abates with the death of her husband; the cause of action belongs to her, and the loss is hers, not his. She has been deprived of her right of full marital participation with her husband because of the acts of the defendant; the fact that her husband died should not deprive her of the damages she suffered from the time of his injury until his death. Price v. Southern Ry. Co., 470 So.2d 1125 (Ala.1985). 20. Breach of warranty In order for an action for personal injury, based upon warranty, to survive for purposes of substitution under Rule 25, A.R.C.P., the decedent must have stated a claim for breach of warranty; otherwise, a new action must be filed in which the breach of warranty claim may be asserted. Price v. Southern Ry. Co., 470 So.2d 1125 (Ala.1985). Abatement And Revival 58(1) Action for breach of warranty brought under Uniform Commercial Code provisions survives the death of the plaintiff in favor of his personal representative, for the recovery of lost wages, pain and suffering, medical expenses and other damages which occurred between the time of the alleged breach of warranty and death of the plaintiff, in the circumstances where the plaintiff died as a result of the alleged breach of warranty, after the action had been brought by him. Simmons v. Clemco Industries, 368 So.2d 509 (Ala.1979). Abatement And Revival 58(1) 21. Slander of title Action for slander of title could be maintained by administrator of property owner despite contention that such a cause of action does not survive the death of the property owner and though allegedly forged mortgage was filed for record during the lifetime of owner and no action for slander of title was filed by owner during her lifetime since more than three years after the death of owner the defendant caused to be published the notice of foreclosure on the property described in the forged mortgage, and the act of filing the foreclosure notice constituted a separate and distinct slander for title for which the defendant may be held answerable in damages. Proctor v. Gissendaner, 1978, 579 F.2d 876, supplemented 587 F.2d 182. Libel And Slander 139

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22. Intentional misconduct Claim for intentional misconduct is ex delicto in nature; and, as such, it did not survive in favor of the personal representative of a deceased person under the provisions of this section. Smith v. Equifax Services, Inc., 537 So.2d 463 (Ala.1988). Abatement And Revival 52 23. Real property Executor's claim that under former § 150, Title 7, right of action begun by widow survived to her personal representative failed because the only action taken by widow before her death was filing of petition to have homestead set aside and title vested in her, and because where no further action was taken by court with proper jurisdiction, action, being personal to decedent, did not survive her death. Rodgers v. Bradley, 533 So.2d 546 (Ala.1988). There could not be any survival under this section of action begun by widow to have property set apart and title vested in her as a homestead, because it was necessary for the action to be fulfilled in a judgment of the court during the life of the widow or be lost. Walker v. Hayes, 248 Ala. 492, 28 So.2d 413 (Ala.1946). 24. Misrepresentation Wife's claim that a misrepresentation occurred when hospital employees told her that her husband's insurance policy would cover certain of his expenses was not barred by this section where the misrepresentation was allegedly made to her personally, not her husband. Lowe v. American Medical Intern., 494 So.2d 413 (Ala.1986). 25. Fraud Nondiverse insurance agent was fraudulently joined, for purpose of defeating diversity jurisdiction, in suit by estate of insured under life policy claiming that insurer fraudulently represented premium payment schedule for life policy; under Alabama law, any fraud claim against agent did not survive insured's death. A.W. Herndon Oil Co. v. Transamerica Occidental Life Ins. Co., 201 F.Supp.2d 1213 (M.D.Ala.2002). Federal Courts 303 A claim based on fraud perpetrated on insured decedent does not survive in favor of the personal representative of the decedent; in other words, if the representations of agent who sold insurance policy to decedent were made to decedent, the claim for fraud did not survive his death and representative could not bring an action based on those representations, even if false. Levett v. Independent Life and Acc. Ins. Co., 814 F.Supp. 1053 (M.D.Ala.1993). Administrator of deceased partner's estate maliciously prosecuted fraud counterclaim in development partnership's claim against partner's estate; fraud counterclaim was without evidentiary support, it had abated on partner's death as a matter of law, and administrator voluntarily dismissed counterclaim. Mitchell v. Folmar & Associates, LLP, 854 So.2d 1115 (Ala.2003), rehearing denied. Malicious Prosecution 10; Malicious Prosecution 35(1) Any claim based on a fraud perpetrated on the decedent would not survive in favor of his personal representative. Miller v. Dobbs Mobile Bay, Inc., 661 So.2d 203 (Ala.1995), rehearing denied, certiorari denied 116 S.Ct. 177, 516 U.S. 864, 133 L.Ed.2d 117. Abatement And Revival 52 A claim based on fraud perpetrated on the decedent, who purchased a memorial policy, would not survive in favor of the personal representative. Davis v. Southern United Life Ins. Co., 494 So.2d 48 (Ala.1986). Abatement And Revival 53 Complaint alleging that the alleged fraud of sale representatives who sold prescription diabetes drug caused the death of plaintiff's decedent would be regarded as asserting a wrongful death claim, rather than a personal representative could bring the action. In re Rezulin Products Liability Litigation, 2001, 133 F.Supp.2d 272. Death 7; Death 10; Death 31(3.1) 26. Brain death

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Brain dead woman was legally dead before personal injury claims were filed against doctors and medical corporation, and thus personal representative could not maintain those claims, although her cardiac and respiratory systems were still functioning when claims were filed; statute plainly stated that even when respiratory and cardiac function are artificially maintained, a person is “medically and legally dead if there is total and irreversible cessation of brain function,” statute preempted any common law definition of death, and statute provided no exception for personal injury claims. Bassie v. Obstetrics & Gynecology Associates of Northwest Alabama, P.C., 828 So.2d 280 (Ala.2002). Abatement And Revival 54 27. Pleadings Automobile accident victim who failed to file tort action prior to her death was not legally entitled to recover from uninsured motorist through her estate, and, thus, victim's estate was not entitled to uninsured motorist (UM) benefits; even though the victim's contractual cause of action for UM benefits survived her death, the failure of the victim's tort cause of action to survive her death provided a complete defense for the uninsured motorist. Continental Nat. Indem. Co. v. Fields, 926 So.2d 1033 (Ala.2005). Insurance 2782 Should the plaintiff die as a result of the injuries alleged in the original personal injury suit, the properly substituted personal representative may amend the original complaint to add a wrongful death claim. King v. National Spa and Pool Institute, Inc., 607 So.2d 1241 (Ala.1992). Pleading 248(11) There was no prohibition in the rules or statutes against plaintiff's pleading two alternative, inconsistent, and mutually exclusive claims of wrongful death and a survival claim for personal injury in her complaint. Although plaintiff could recover under only one or the other of the remedies, there was nothing in the rules or statutes requiring her to choose the claim that she would pursue at trial. Ex parte King, 591 So.2d 464 (Ala.1991). 28. Dismissal of action The effect of a dismissal with prejudice or a dismissal without prejudice, for a cause of action sounding in tort for personal injuries in which Alabama law is applied, would be the same, since the personal representative could not file an action to recover for the personal injuries of a decedent who died of causes unrelated to his injuries. Illinois Cent. Gulf R. Co. v. Price, 539 So.2d 202 (Ala.1988). 29. Motions for substitution If a plaintiff dies, a pending action for “injuries to the reputation” is extinguished. All other pending actions survive in favor of or against personal representatives. If within six months after suggestion of death upon the record, a motion for substitution has not been made by any party or by the successors or representatives of the deceased party, the action shall be dismissed as to the deceased party. Illinois Cent. Gulf R. Co. v. Price, 539 So.2d 202 (Ala.1988). 30. Judgments Where there is no judgment in case, “action” will not survive the death of the intestate. Littlefield v. Cupps, 371 So.2d 51 (Ala.Civ.App.1979). 31. Appeals Remand was required to permit trial court to determine the extent, if any, to which any damages awarded to corporation or to minority shareholders' estates arose from tort injuries sustained by individual decedents before their respective deaths and were, therefore, not recoverable in action that was commenced following their deaths. Robbins v. Sanders, 890 So.2d 998 (Ala.2004), modified on denial of rehearing. Abatement And Revival 58(.5) Cited in State ex rel. Nabor's Heirs, 7 Ala. 459 (1845); Mauldin Montague & Co. v. Armistead, 14 Ala. 702 (1848); Moore v. Easley, 18 Ala. 619 (1851); Cox v. Whitfield, 18 Ala. 738 (1851); Gayle v. Bancroft, 22 Ala. 316 (1853); Branch Bank v. McDonald, 22 Ala. 474 (1853);Garrison v. Burden, 40 Ala. 513, Ex parte Ware, 48 Ala. 223 (1872); Waller v. Nelson, 48 Ala. 531 (1872); Parker v. Abrams, 50 Ala. 35 (1873); Fretwell v. McLemore, 52 Ala. 124

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Ala.Code 1975 § 6-5-462

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(1875); Lankford v. Green, 62 Ala. 314 (1878); Smith v. Lilley, 252 Ala. 425, 41 So.2d 175 (1949); Ex parte Zepernick, 259 Ala. 493, 66 So.2d 757 (1953); Moore v. Stephens, 264 Ala. 86, 84 So.2d 752 (1956); Shields v. Castleberry, 41 Ala.App. 390, 133 So.2d 516 (1961); Marshburn v. Dickey, 41 Ala.App. 664, 148 So.2d 653 (1963); Old S. Life Ins. Co. v. Woodall, 295 Ala. 235, 326 So.2d 726 (1976); Smith v. West Point-Pepperell, Inc., 431 So.2d 1268 (Ala.Civ.App.1983); Stacey v. Saunders, 437 So.2d 1230 (Ala.1983); Burford v. United States, 642 F.Supp. 635 (N.D.Ala.1986); Dennis v. Magic City Dodge, Inc., 524 So.2d 616 (Ala.1988); First Bank v. Fielder, 590 So.2d 893 (Ala.1991); Gillion v. Alabama Forestry Ass'n, 597 So.2d 1315 (Ala.1992); Missildine v. City of Montgomery, 907 F.Supp. 1501 (M.D.Ala.1995). Ala. Code 1975 § 6-5-462, AL ST § 6-5-462 Amendments Received Through December 1, 2009. Copr (c) 2009 by State of Alabama. All rights reserved. END OF DOCUMENT

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