Chmil et al v. Schneider et al

Filing 51

ORDER granting 39 Defendant Legacy's Motion to Dismiss, Plaintiffs are hereby granted leave to amend as set forth above, as more fully set out. Signed by Honorable David L. Russell on 5/11/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
The Estate of LUBOMIR TSISYK
deceased, by VALENTINA CHMIL and
NATALIYA TSISK as proposed
administrators; and D.T., an infant
by his mother and natural guardian,
VALENTINA CHMIL; and V.T., an
infant by his mother and natural
guardian NATALIYA TSISYK,
Plaintiffs,
v.
THOMAS R.J. SCHNEIDER,
Defendants.

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CIV-14-944-R

ORDER
This matter comes before the Court on the Motion to Dismiss, filed by Defendants
Legacy, Inc. ("Legacy") and, "Legacy Logistics, LLC ("Legacy Logistics") pursuant to
Federal Rule of Civil Procedure 12(b)(1) and (b)(6). (Doc. No. 39).1 Therein Defendants seek
dismissal of the claims of both the adults Plaintiffs and the claims on behalf of the minor
Plaintiffs, D.T. and V.T. Plaintiffs responded in opposition to the motion, and having
considered the parties' submissions, the Court finds as follows.
This case stems from a multi-vehicle accident near the Oklahoma-Texas border on
March 31, 2012. Lubomir Tsisyk was killed in the accident, and on September 26, 2014, this
action was filed by the Valentina Chmil and Nataliya Tsisyk, the alleged wife and ex-wife

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Legacy Logistics, LLC was voluntarily dismissed by Plaintiff, therefore the motion is denied as
moot with regard to Legacy Logistics, LLC.

of Lubomir, respectively, as proposed administrators of Lubomir Tsisyk's estate, and
Lubomir's surviving minor children, through their respective mothers. Defendants contend
first that Plaintiffs, except Valentina Chmil as the surviving spouse of Lubomir Tsisyk are
not authorized to pursue a claim under Okla. Stat. tit. 12 § 1054, and second that all claims
are barred by the statute of limitations contained in Okla. Stat. tit. 12 § 1053.
The Court first concurs with Defendant's argument that the only proper plaintiff to a
wrongful death claim is Valentina Chmil, as the surviving spouse of Lubomir Tsisyk.
Pursuant to Okla. Stat. tit. 12 § 1054.
In all cases where the residence of the party whose death has been caused as
set forth in the preceding section of this article is at the time of his death in any
other state or territory. . . the action provided in the said section may be
brought by the widow, or where there is no widow, by the next of kin of such
deceased.
Id. Mr. Tsisyk was a resident of New York at the time he perished in the accident, and thus,
the hierarchy provided by § 1054 is such that his widow, Valentina Chmil is the appropriate
person to bring a claim. Although Valentina Chmil is not included as a party in her individual
capacity as the widow of Lubomir Tsisyk, the Court concludes that Plaintiffs can easily
remedy this defect by filing an amended complaint naming Valentina Chmil as widow of
Lubomir Tsisyk. As a result, it is necessary to address Defendants' statute of limitations
argument, because if amendment would be futile, it would be improvident to permit Plaintiffs
to file a second amended complaint. Defendants contend that because Valentina Chmil is the
only plaintiff authorized to pursue a wrongful death action that she was required to do so
within two years. Defendant contends her failure to do so mandates dismissal.
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Oklahoma Stat. tit. 12 § 1053 provides a two year statute of limitations period for
wrongful death claims. Defendants contend that despite the presence of decedent's minor
children as potential beneficiaries of the wrongful death action that Oklahoma law mandates
dismissal of the action. Defendants rely on Hamilton v. Vade, 721 P.2d 412 (Okla. 1986).
The undersigned agrees that Hamilton controls, but disagrees with Defendants regarding the
outcome. Defendants characterize Hamilton as holding that "a minor could bring suit for the
wrongful death of a parent at any time before his nineteenth birthday, but only if there was
no personal representative appointed or surviving spouse who must bring the claim under the
Oklahoma statute (and assuming no prior claim was adjudicated)." (Doc. 39, p. 9).
In Hamilton, the court concluded:
Oklahoma law allows an action for wrongful death to be brought on behalf of
a minor for the death of his mother more than two (2) years after the date of
her death contingent upon suit being brought by either the decedent's personal
representative, spouse, or next of kin in accordance with 21 O.S. 1971 §§
1053, 1054.
Id. at 414-15. Thus, the minor children of Lubomir Tsisyk are entitled to proceed with claims
even after expiration of the statute of limitations period provided that Mr. Tsisyk's widow
pursues the claim on their behalf. The Hamilton court relied on its decision in Brookshire v.
Burkhart, 283 P. 2d 571 (1929).
In Brookshire, no administrator had been appointed to manage the decedent's estate.
The court concluded that the plaintiff, the husband of the decedent and father of the minor
claimant, properly instituted suit under Comp.Stat. 1921 § 824, which is now codified as 12
O.S. 1981, § 1053, 1054, to recover damages on behalf of his minor son, even though suit
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was filed more than three years after decedent's death. See Hamilton, 721 P.3d at 414, n. 3.
Therefore, Defendants' attempt to distinguish Hamilton because there was no surviving
spouse is not supported by Hamilton, in light of its reliance on Brookshire, where the
surviving spouse was permitted to proceed on the wrongful death claim to the extent it would
benefit the minor child despite the lapse of more than two years. Accordingly, the Court
hereby grants Plaintiffs leave to amend their complaint to add a wrongful death claim by
Valentina Chmil in her capacity as Lubomir Tsisyk's widow, which claims are for the benefit
of the decedent's minor children.2 The amended complaint shall be filed within fourteen days
of entry of this order.
With regard to Plaintiffs' Second, Third, Fourth, and Fifth Causes of Action, Plaintiffs
have failed to respond to the motion to dismiss, and therefore, Defendant Legacy is entitled
to dismissal of these claims in their entirety.
For the reasons set forth herein, Defendant Legacy's motion to dismiss is hereby
granted. Plaintiffs are hereby granted leave to amend as set forth above.
IT IS SO ORDERED this 11th day of May, 2015.

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This amendment cannot impact any claim on behalf of Ms. Chmil herself, such claim is barred by
expiration of the statute of limitations period.

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