By Colin H. Dunn
What happens if a lawsuit is filed but the defendant is dead and the plaintiff doesn’t learn of the death until after the statute of limitations has expired? That was the issue before the Illinois Supreme Court in Relf v. Shatayeva, 2013 IL 114925 (Oct. 18).
In Relf, the plaintiff was injured in an automobile crash in February 2008 and filed her negligence claim against the defendant-driver in February 2010, shortly before the two-year statute of limitations expired.
The problem was that the defendant was dead. He had died just a few months after the crash and nearly two years before the plaintiff had filed her lawsuit. In the meantime, the defendant’s will had been admitted to probate and letters of office had been issued to his son to serve as independent administrator of his estate.
The plaintiff first learned of his death when her process server (who was appointed because the sheriff was unable to serve a dead person) informed her of that fact in May 2010. On Sept. 24, 2010, the plaintiff sought leave to spread the defendant’s death of record, to appoint a “special administrator” for the purposes of defending the plaintiff’s action against him and to grant the plaintiff leave to file an amended complaint.
In support of her request for a “special administrator,” the plaintiff asserted that she had not learned of the defendant’s death until receiving notice of it from the special process server and that she was unaware as to whether “any personal representative has been appointed by [his estate].” The plaintiff proposed that an employee-legal assistant of her lawyer be appointed to serve “as the Special Administrator of the Estate of [the defendant], deceased.”
After being appointed, the “special administrator” moved to dismiss plaintiff’s cause of action as time-barred under Section 2-619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2010)).
Although the plaintiff’s original complaint was filed in the circuit court just within the two-year limitation period for actions for damages for an injury to the person, that complaint was directed against the defendant himself even though he had already been dead for approximately a year and 10 months. The special administrator argued that under Illinois law, a dead person is a nonexistent entity and cannot be a party to a lawsuit.
Correspondingly, a lawsuit instituted against a person who is already dead at the time the suit is filed is a nullity and void ab initio and the complaint naming the defendant therefore could not operate to preserve the plaintiff’s claims arising from the February 2008 accident.
The Supreme Court agreed. Under the common law of Illinois, a dead person is a nonexistent entity and cannot be a party to a suit. Volkmar v. State Farm Mutual Automobile Insurance Co., 104 Ill.App.3d 149, 151 (1982). If a person is already dead when an action is asserted against him or her, the proceedings will not invoke the trial court’s jurisdiction and any judgment entered in the case will be a nullity. Danforth v. Danforth, 111 Ill. 236, 240 (1884).
Thus, the plaintiff’s initial complaint naming the defendant did not operate to preserve the plaintiff’s claims.
But the real issue, according to the Supreme Court, was whether the plaintiff had complied with Section 13-209 of the Code of Civil Procedure (735 ILCS 5/13–209 (West 2010)), which sets out the procedure to preserve claims when a complaint is filed against a deceased individual before the applicable statute of limitations has expired and the plaintiff doesn’t learn of that death until after that limitations period has lapsed.
The court first laid out the relevant provisions of Section 13-209: If an estate has been opened for the decedent and a personal representative has been appointed by the court, the “action may be commenced against his or her personal representative after the expiration of the time limited for the commencement of the action, and within six months after the person’s death.” (735 ILCS 5/13–209(b)(1) (West 2010)).
If, on the other hand, “no petition has been filed for letters of office for the deceased’s estate,” then under Section 13-209(b)(2), “the court, upon the motion of a person entitled to bring an action and after the notice to the party’s heirs or legatees as the court directs and without opening an estate, may appoint a special representative for the deceased party for the purposes of defending the action.”
The legislature also provided an additional safe harbor to aid plaintiffs where the action is brought directly against the deceased person and the plaintiff does not learn that the defendant is actually dead until the limitations period has expired.
Assuming the cause of action survives and is not otherwise barred, Section 13-209(c) allows the plaintiff to proceed directly against the personal representative, notwithstanding the fact that the claims would otherwise be untimely.
That option, however, is subject to four conditions: 1) The plaintiff must proceed “with reasonable diligence to move the court for leave to file an amended complaint, substituting the personal representative as defendant”; 2) the plaintiff must also proceed “with reasonable diligence to serve process upon the personal representative;” 3) if process is served more than six months after issuance of letters of office to the personal representative, the “liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance;” and 4) “[i]n no event can a party commence an action under this Subsection (c) unless a personal representative is appointed and an amended complaint is filed within two years of the time limited for the commencement of the original action.”
The court found that the plaintiff had not satisfied those conditions. Although a personal representative for the defendant’s estate had been appointed in September 2008, the plaintiff never moved the court to have that personal representative substituted as a defendant and never attempted service on that personal representative.
Instead, the plaintiff arranged to have one of her attorney’s employees, his secretary, appointed “special administrator.” That was not good enough because a “special administrator” is not the same as a “personal representative.”
The court found that having two separate individuals, i.e, the special administrator and the personal representative, attempting to operate simultaneously and independently on behalf of the same decedent “poses obvious problems for the prompt, efficient and final settlement of the decedent’s affairs.” Moreover, a testator has the right to designate by will who shall act as his personal representative and the appointment of another party to serve as special administrator impermissibly infringes on that right. See In re Estate of Faught, 111 Ill.App.3d 1043, 1045 (1983).
The court rejected the plaintiff’s argument that there would be no prejudice to the defendant’s estate from multiple representatives because she is not seeking recovery beyond amounts for which the estate is protected by liability insurance.
The court found that “[a] threshold problem with this argument is that we have no basis for evaluating it. While plaintiff may perceive no prejudice to the estate, her interests are inherently antithetical to its and the estate may very well have a different view. Unfortunately, we do not know what the personal representative of the estate or the heirs or legatees think because none of them were ever notified of this litigation or [the special administrator’s] appointment to defend against it.”
The court also noted that the plaintiff had ample opportunity to properly comply with that Section 13-209(c) after learning that an estate was already open, a petition for issuance of letters of office had been filed and an independent administrator had been appointed and was already in place.
Although the original limitations period on her claims had expired the previous year, Section 13–209(c)(4) (735 ILCS 5/13–209(c)(4) (West 2010)) gave her up to two additional years beyond the expiration date to proceed against the personal representative. But she opted not to do that.
Side note: Whom do you think was representing the special administrator (who was the secretary of the plaintiff’s attorney) in this litigation and asserting the statute of limitations as the basis for dismissal? An attorney selected by the defendant-driver’s insurance company, State Farm, who had been identified in the police report and had been provided notice of the lawsuit by the plaintiff’s attorney before the litigation was commenced.
Moreover, since the estate was not served within “six months after issuance of letters of office to the personal representative,” the plaintiff’s recovery was always going to be limited “to the extent the estate is protected by liability insurance” even if the plaintiff had sued the personal representative. 735 ILCS 5/13–209(c)(3) (West 2010).
So actually naming and serving the personal representative would have not made any difference whatsoever for the litigation. The estate assets would have never been in jeopardy. And the same defense attorneys would have been defending the case.
But, as the court noted, it was bound to apply the statute as written. Which it did.