A typical personal injury claim against an individual defendant resolves in one of two ways: (1) settlement with the defendant, or (more commonly) his or her insurer, either before or during litigation; or (2) collection of a judgment post-trial. By definition, the second scenario requires the filing of a lawsuit by the plaintiff. Frequently, the first scenario will as well, since obtaining a meaningful settlement offer from the defendant or insurer frequently requires obtaining information during pre-trial discovery, which is generally undertaken during the pendency of a legal action.
But what happens when filing that lawsuit is not so straightforward, because the defendant is deceased, either as a result of the incident itself, or otherwise? Filing suit within the applicable statute of limitations, and thus preserving the plaintiff’s claim, requires a timely filing of a lawsuit against the appropriate defendant. In a case where the defendant is deceased, doing so requires compliance with statutory procedural requirements.
Two sets of California statutes set out the applicable law under these circumstances: Code of Civil Procedure Sections 337.40 through 377.42; and Probate Code Sections 550 through 554. The latter sections outline a more streamlined course for filing a personal injury action against a deceased person, where the plaintiff seeks only to recover insurance proceeds. So they will be considered here first.
Indeed, under most circumstances, a personal injury plaintiff’s true “target” for the recovery of damages against a deceased person is that individual’s insurance coverage. The plaintiff may have no interest at all in determining if the deceased defendant’s estate has collectible assets, because the applicable insurance policy limits are adequate (or more than adequate) to pay his or her claim. These Probate Code sections provide a simplified means of filing suit and litigating the action under such circumstances.
Probate Code Sections 550 and 552 provide that an action against a deceased person, where the plaintiff seeks recovery of insurance proceeds only, may be filed against “the Estate of [Decedent].” Summons shall then be served on the insurer, not any estate representative. In fact, this means of filing suit may be utilized even if there was no estate ever established for the decedent at all. In truth, the action is then pursued against the insurance carrier. The statute states that the litigation shall then “be conducted in the same manner as if the action were against the personal representative.”
Probate Code Section 551 provides that, if the limitations period otherwise applicable to the action has not expired at the time of the decedent’s death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable. That statute thus protects the plaintiff who did not know at the time the action was filed that the defendant was deceased. In that circumstance, the plaintiff has a one year “grace period” to file suit under this statutory scheme.
Probate Code Section 553 provides that the insurer may deny or otherwise contest its liability in an action under this chapter, or by an independent action; and that the outcome of the action does not adjudicate the rights of the estate, unless it is joined as a party.
The significant limitation, from the plaintiff’s perspective, of utilizing these Probate Code section to proceed with his or her personal injury claim is set out in Probate Code Section 554, which requires that: “either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable only from the insurance coverage and not against property in the estate.” So proceeding solely under these statutes will, in some circumstances, be insufficient by itself.
In summary, these Probate Code sections provide an easy procedural mechanism and template for timely pursuing a personal injury claim against a deceased defendant where the insurance proceeds are all that the plaintiff seeks to recover. In addition to (or instead of) proceeding in this manner, the plaintiff can seek to keep “in play” potential recovery of both the insurance proceeds and the estate’s assets by filing suit in compliance with a second and separate set of statutes dealing with suing the decedent’s estate.
Code of Civil Procedure Section 377.40 states: “Subject to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may be asserted against the decedent’s personal representative or, to the extent provided by statute, against the decedent’s successor in interest.” That is the second means for a plaintiff to pursue his or her personal injury claims: by filing suit, in a proper manner, against the decedent’s estate, or successor in interest if there is none. The huge “red flag” here is set out in the quoted portion of the statute: the plaintiff must timely file a creditor’s claim against the estate (if it exists), in order to preserve the right to proceed with his or her action for damages. Otherwise, the action is barred.
Probate Code Section 377.41 sets out a like rule as to continuation of an existing action, where the defendant dies while the action is pending. It permits substitution of the estate as a defendant, so long as the plaintiff complies with the creditor’s claims requirements of the Probate Code. A plaintiff could, under such circumstances, alternatively choose instead to seek only recovery of insurance proceeds, by amending the action to state a cause of action under Probate Code Sections 550 and 552, discussed above.
Probate Code Section 377.42 notes that, when a personal injury or wrongful death plaintiff proceeds against the estate: “all damages are recoverable that might have been recovered against the decedent had the decedent lived,” except for punitive or exemplary damages.
Filing suit under either or both of these statutory schemes, depending on the circumstances, protects the plaintiff, and doing so complies with the applicable statute of limitations. It is important for counsel to be aware of these procedural requirements to assure that the plaintiff’s claim is properly protected, and allowed to proceed, where the defendant is deceased.