In Part I, I discussed capacity and whether an attorney had a client with capacity and if not, suggested some general outlines about getting someone with capacity appointed.
In this Part II, I’ll discuss necessary considerations when a plaintiff’s attorney has a deceased client.
Death of a client during litigation versus wrongful death cases
First, in most all cases, it will be necessary to open an estate and get a “personal representative” appointed. A “personal representative” may be an administrator (when the decedent died without a Will, i.e., “intestate”) or an executor (when the decedent died with a Will, i.e., “testate”). Normally, when the decedent’s family is able to locate an original Will and submit it to probate, that document will nominate a personal representative, generally will waive the requirement of bond, and will direct how the assets are to be used by the Estate. However, most personal injury plaintiffs who pass away during the course of litigation do not have a Will, and intestate administration tends to be the norm.
It is absolutely necessary to open an estate in survival actions (personal injury damages prior to death of decedent) because such damages belong solely to the estate of the decedent. It may be necessary to open an estate – although not always – in wrongful death actions in order to confer authority and standing upon a personal representative to sign authorizations for medical, employment, or other records. Generally, only a court-appointed fiduciary will have authority to sign authorizations to obtain records. I’ve heard of some probate attorneys opening small estates (where no fiduciary is appointed) listing the records as assets, but it is not clear whether records custodians have to honor a probate court clerk’s certificate of small estate in turning over those records to family members under such a procedure. Therefore, it is advisable to just open an estate and obtain a court order.
The personal representative must meet certain qualifications. In Kansas:
There is a preference for surviving spouses and lineal descendants. K.S.A. § 59-705: gives preference to the surviving spouse, then the adult children of decedent, then the adult grandchildren of decedent. If the lineal descendants are unable or unwilling to act as personal representative, preference is then given to creditors or any other suitable person (like a close family friend or an independent person).
Bond is required, but may be waived. K.S.A. § 59-1104 will allow heirs to consent to an intestate administrator serving without bond; the court then has discretion to waive the requirement of bond if all parties consent. Note, however, that if an estate is opened with the nonclaims deadline and there are creditors who either will or have filed claims against the estate, many judges won’t waive bond even when all heirs consent in order to protect the interests of creditors.
Missouri’s qualifications vary slightly:
While Kansas prefers surviving spouses and lineal descendants, Missouri will allow any blood relative by priority of relation with no express allowance for creditors (who arguably fall into the “other suitable party” category. RSMo. § 473.110.
Missouri has express disqualifications. RSMo. § 473.117 disqualifies all the same individuals disqualified under the guardianship and conservatorship statutes, plus a non-Missouri business entity and a personal representative of a personal representative (so perhaps arguably, if the surviving spouse is under a guardianship, the guardian of the surviving spouse).
RSMo. § 473.157 expressly disallows, in an intestate administration, the court to exercise discretion in waiving bond when heirs consent to the personal representative serving without bond. Missouri only allows for waiver of bond by the court “upon good cause” shown that bond is not required for the protection of interested parties – which includes creditors. Most probate judges in Missouri will not waive bond.
Survivorship actions occur when the decedent suffered substantial pain and suffering (or other damages) prior to passing away. K.S.A. § 60-1801; Scheuler v. Aamoco Transmissions, Inc., 1 Kan.App.2d 525 (1977); RSMo. § 537.010. Since the damages belonged to the decedent prior to death, the damages are transferred to the estate upon the decedent’s death, and therefore, an estate must be opened in order to recover such damages. The statutes of limitations on survivorship actions are:
In Kansas, 2 years under K.S.A. 60-1801 from the date of negligence, not the date of death
In Missouri, generally 5 years under RSMo. § 516.120, except for medical malpractice actions, then 2 years under RSMo. § 516.105.
In Missouri, there are pleading requirements that should be followed in opening an estate:
RSMo. § 573.080 requires that the application to open a probate estate allege that the decedent suffered injuries prior to death and those injuries were unrelated to cause of death OR that the decedent’s heirs have a cause of action for wrongful death based on decedent’s death
RSMo. § 537.021 requires the estate is being opened for the sole purpose of bring the tort action if opened more than one year from date of death but within the statute of limitations for the underlying tort action
Only a personal representative can bring a cause of action for survivorship damages or lost chance of survival under the Missouri statutory law. State ex rel. Tang v. Steelman, 897 S.W.2d 202 (Mo. App. S.D. 1995)
It is important to note that if a personal injury suit is filed before the plaintiff dies, and a person is duly appointed as the personal representative under the survivorship statute, any lost chance of recovery/survival claim does not relate back to the original filing and the petition because it is premised upon the death of the Plaintiff and the civil petition must be amended to include the new claim within the statute of limitations for lost chance of survival. Ultimately, a lost chance of survival claim cannot be brought by anyone other than a personal representative. Smith v. Tang, 926 S.W.2d 76 (Mo. App. E.D. 1996).
Kansas courts have held that where more than six months had passed since defendant’s death had been noted on the record, and nothing had been done to substitute a proper party or to appoint a representative who might be substituted as a proper party, plaintiff had not timely moved for substitution and the action had been properly dismissed. The court noted that “a reasonable time” implies a requirement of due diligence. Livingston v. Bias, 7 Kan. App. 2d 287, 290, 640 P.2d 362 (1982).
Missouri’s law is more clear. Missouri Supreme Court Rule 52.13 and RSMo. § 507.100 require that if the personal injury suit is pending and at the time of the plaintiff’s death, and the suit has not resulted in final judgment and appeal, then substitution of the personal representative must be made within 9 months after first publication of Letters of Administration/Testamentary AND within 90 days of the suggestion of death being filed. Thus, once a suggestion of death is made on the record in Missouri, Plaintiff has 90 days to properly amend his/her petition to substitute a party with standing. If death occurs after appeal but before final determination on appeal, then substitution must be made within 9 months of publication of Letters per RSMo. § 507.100. NOTE that under RSMo. § 507.100, the plaintiff has 9 months to move for suggestion of death after the death of a defendant, BUT RSMo. §§ 473.360 and 473.363 require filing a claim against deceased defendant’s estate within six months of death. The shorter statute of limitations applies if a plaintiff is seeking to recover from deceased defendant’s estate rather than decedent’s liability insurance carrier.
Additionally, service of a suggestion of death upon a deceased party’s attorney will not suffice to comply with service requirements and will not start the running of the 90-day period. Metro. St. Louis Sewer Dist. v. Holloran, 756 S.W.2d 604 (Mo. App. E.D. 1988). If a personal representative is not appointed and the statute of limitations for issuance of letters of administration has expired, a determination of heirship proceeding does not confer standing to maintain a survival action. Carter v. Pottenger, 888 S.W.2d 710 (Mo. App. S.D. 1994). If this happens, the only route to continue maintaining the survival action is via appointment of a plaintiff ad litem. RSMo. § 537.021. But that may be problematic for reasons discussed below.
Wrongful Death Actions
By contrast to the survivorship cause of action, wrongful death occurs when damages are sustained by heirsafter the decedent’s death. Thus, the damages do not belong to the estate, but to decedent’s family members as determined by statute. The damages also accrue after death, unlike a survivorship action.
“Heirs” are defined by the respective intestacy statutes. In Kansas, K.S.A. § 60-1902, Baugh v. Baugh, 25 Kan.App.2d 871 (1999) outline the boundaries of “heirs”. If there is a surviving spouse and/or children still living, then those are the only heirs at law who are permitted standing under wrongful death statutes in Kansas. Under Missouri law, those with standing are defined and prioritized by Missouri’s wrongful death statute, RSMo. § 573.080:
Class 1: spouse or children or parents of the deceased, and if there are no surviving plaintiffs in Class 1, then
Class 2: brother, sister, or nieces and nephews, and if there are no surviving plaintiffs in Class 2, then
A Plaintiff ad litem may be appointed at court’s discretion to pursue the damages on behalf of another interested party. A good case to look at is Henderson v. Fields, 68 S.W.3d 455 (Mo. App. W.D. 2001). Henderson involved the death of mother, father, and four-year old daughter in a car crash. Grandparents sued in their individual capacities for the wrongful death of all three. The Court of Appeals reversed judgment in favor of the grandparents as to the grandchild; the grandparent’s later attempt to amend the judgment to be named as plaintiff ad litem with regard to the grandchild in a nun pro tunc order was unsuccessful because appointment of plaintiff ad litem does not relate back to original filing of the suit. Remember above when the plaintiff ad litem route was mentioned with caution? The Henderson case is why.
Recovery is apportioned among the heirs at law whether they join the suit or not in both jurisdictions. K.S.A. § 60-1902; RSMo. § 537.095. Also, it is important to note that wrongful death plaintiffs do have standing to recover uninsured motor vehicle coverage. Arnold v. Family Mut. Ins. Co., 987 S.W.2d 537 (Mo. App. W.D. 1999). An estate will have to be opened for that as well. Additionally, if you have a person who dies in a car crash, and a wrongful death claim exists and vests in a first class family member under the wrongful death statute in Missouri, if the first class family member is in the car with the decedent, and survives…but for a short period of time…does the survivor have a claim for the wrongful death of the deceased family member? The answer is:
NO if the family member fails to file a claim for wrongful death before they also die. Pedroli v. Missouri Pacific Railroad, 524 S.W.2d 882 (Mo. App. 1975).
YES if the family member does file a claim before they also die. Cameron v. Morrison, 901 S.W.2d (Mo. App. W.D. 1995). In this second scenario, if the wrongful death plaintiff files suit, then passes away, an estate should be opened for the first class wrongful death plaintiff and an argument made that the family member’s estate now has an interest in the wrongful death claim.
The statute of limitations to bring a wrongful death action are:
In Kansas, 2 years from the date of death pursuant to K.S.A. § 60-513, except that if the decedent could have brought a suit for personal injuries prior to death, the wrongful death statute will not be permitted to extend or revive any applicable statute of limitations for personal injury brought after the decedent’s passing. Mason v. Garin Corp., 231 Kan. 718 (1982).
In Missouri, 3 years from the date of death pursuant to RSMo. §537.100. If the death is a result of medical malpractice, the three year wrongful death statute applies instead of the customary two year statute of limitations for medical malpractice. Gramlich v. Traveler’s Ins. Co., 640 S.W.2d 180 (Mo. App. 1982). Additionally, a combination suit involving both wrongful death and survivorship causes of action may be brought even if the statute of limitations on the underlying personal injury action has lapsed upon decedent’s death. Caldwell v. Lester E. Cox Medical Center South, 943 S.W.2d 5 (Mo. App. 1997). HOWEVER, the statute of limitations may be shortened if the tortfeasor predeceased the decedent who has the personal injury action. In such instances, your personal representative is a creditor of the tortfeasor’s estate and must file a claim against the tortfeasor’s estate within the nonclaims statute applicable to the tortfearor’s estate. Clarke v. Organ, 329 S.W.2d 670, 685 (Mo. banc 1959).
Again, the risk of using a plaintiff ad litem is that the appointment of a plaintiff ad litem will not relate back to filing of a wrongful death action to prevent the running of the statute of limitations under the malpractice statutes. RSMo. § 516.105; Thompson v. Brown & Williamson Tobacco Corp., 2017 S.W.3d 76 (Mo. App. W.D. 2006). Ultimately, the wrongful death statute of limitations may be tolled for concealment of decedent’s body by the wrongdoer. Howell v. Murphy, 844 S.W.2d 42 (Mo. App. W.D. 1992). There have been mixed results of the tolling for fraudulent or equitable concealment. More on that in a future post. If the torfeasor is also dead, then written notice of the filing of wrongful death action MUST be filed against the tortfeasor’s estate within 6 months of publication of Letters in tortfeasor’s estate. RSMo. § 473.363.
With all of those considerations in mind, here are some strategy considerations for plaintiff’s attorneys:
First, RSMo. § 537.090’s allowance for recovery of pecuniary losses that include damages between time of injury and time of death and recovery for which deceased might have maintained had death not ensued seems to allow for recovery of expenses of last illness – which decedent’s estate would normally be liable to pay – yet proceeds of the wrongful death action do not belong to a decedent’s estate. This should put attorneys on careful notice when drafting what damages are claimed in the civil petition and to be sure that damages claimed do not conflict with the estate if a personal representative is appointed for other purposes. If an estate has been opened and personal representative appointed, then appropriate waivers and releases could be signed by the parties releasing the estate and personal representative from any liability for those expenses of last illness.
Second, if there is uncertainty as to whether injuries resulted in death (amounting to a wrongful death action), the prudent course of action is to open an estate and get a personal representative appointed to bring a survivoship action, and then bring separate causes of action under an alternate theory for wrongful death. If this occurs, the defendant (to avoid exposure of double payment) may request an interpleader determination of the cause of death, but in making such a determination, there is no right to a jury. Plaza Express Co. v. Galloway, 280 S.W.2d 17 (Mo. banc 1955).
Also, a wrongful death claim against a nursing home has been treated as a derivative action, and not subject to the resident’s contract for admission in the facility – and therefore the arbitration clauses in the admission contract were not binding upon the wrongful death plaintiff. Lawrence v. Beverly Manor, 273 S.W.3d 525 (Mo. banc 2009).
The Potential for Conflicts of Interest
In situations where your personal representative is also a civil plaintiff that stands to benefit from a civil settlement or judgment, there might be a conflict of interest in determining which portion of the settlement belongs to the estate (personal injury damages) versus what portion of the settlement belongs to the heirs at law outside of probate (wrongful death settlement). If the estate has creditors, the personal representative has a fiduciary duty to act in the estate’s best interests, and that means ensuring creditor’s claims get classified, adjudicated, and paid, which directly conflicts with the personal representative’s individual interest in the settlement proceeds – whether an heir of the estate or as a wrongful death plaintiff. Therefore, the most conservative course of action is that if there are creditors who have filed timely claims against the estate, the proposed settlement MUST be set for an approval hearing in the probate court with the creditors put on notice so that they may have an opportunity to raise objections to the way the settlement is structured (personal injury v. wrongful death), provided the creditors don’t consent in advance and waive the need for a hearing by withdrawing their claim.
This is becoming more of an issue where Medicaid Estate Recovery is concerned. Personal injury attorneys will classify a settlement as 100% wrongful death proceeds when the facts might not totally justify 100% of the proceeds being attributable the wrongful death claim (unless it is the ONLY claim) in order to avoid any assets entering the estate to be gobbled up by Medicaid Estate Recovery. I’ve discussed the difference between estate recovery demands and Medicaid subrogation liens in personal injury cases in a previous post. Some estates may be opened after the nonclaims deadline for ordinary creditors (because they can initiate opening the estate themselves in order to enforce their claim rights) but those estates opened after the nonclaims deadline are still subject to claims by government entities, such as the Department of Revenue, IRS, or Medicaid. This is especially true in Missouri, where Missouri HealthNet (Medicaid) may file a claim after the nonclaims statute has passed. (Fortunately, Kansas Medicaid is held to the same standards as other creditors and must file their claim within the nonclaims period).
There is a strong argument against treating Medicaid as a taxing authority in Missouri for the purposes of filing estate recovery claims because the current law permitting untimely claims results in a lack of predictability in planning tort suits and knowing whether, when an estate is opened, the heirs of the estate will even receive distributions from the estate. Take for example a pending personal injury suit where the plaintiff dies during litigation. The plaintiff’s firm has taken the case on a contingent fee and is advancing all the expenses. A probate estate is opened after the nonclaims statute but before the expiration of the personal injury statute of limitations. Creditors claims are barred. A personal representative is appointed and the case successfully settles. There is a gross settlement of $200,000. The plaintiff’s firm, after paying liens, reimbursing their expenses, and taking their fees, will be putting a net of $100,000 into the estate. Before the estate can be closed and the sole asset of $100,000 in settlement proceeds distributed to the heirs, Missouri HealthNet gets to decide if it will file a claim against the estate. When the estate was opened, the heirs, attorneys, and even the personal representative did not know how much such a claim would or could be – so all the money and fees were spent to get the suit settled through an estate, but without any advanced knowledge of whether it will ultimately be beneficial to the heirs. If Missouri HealthNet decides to file a claim for $110,000 against the estate, it is very likely that the heirs will get nothing, despite the attorneys getting paid and expenses being advanced to prosecute a suit. This means personal injury attorneys need to carefully screen their cases for plaintiffs on Medicaid. Additionally, the only potential compensation getting paid in this scenario is compensation to a personal representative for services rendered – which could cause a rift among other heirs who consented to the personal representative serving as fiduciary of the estate to get the suit prosecuted and settled, but who now stand to gain nothing.
Venue and jurisdiction
As if all of the above did not pose enough to consider, there are some important considerations in choosing a venue. If the party with standing is a personal representative, for jurisdiction and venue purposes, the venue and jurisdiction in which the estate is “domiciled” is the county and state where the decedent permanently resided at the time of death, and a legal representative of an estate is considered a citizen of the same state the decedent was a citizen in at the time of death. 28 U.S.C. § 1332(c)(2). This might be important when diversity jurisdiction and the potential for removal of a civil suit are taken into consideration. If the party with standing is a guardian or conservator, the venue and jurisdiction are in the county and state where the ward/protectee is domiciled and resides, or if no residence, then the county where the ward/protectee has property or where the ward/protectee is found or their property is found. Again, this may be critical in avoiding federal jurisdiction.
Other reasons a probate action might be necessary:
In addition to the reasons discussed above, probate might also be necessary in order to obtain medical records or other documents that are confidential and personal to the decedent; however, opening an estate under an abbreviated probate proceeding (a small or simplified estate) does not allow for the appointment of a personal representative/administrator, and therefore, does not necessarily confer authority to obtain medical records or to prosecute civil actions on behalf of a decedent. An estate might also be necessary to conserve and protect a civil settlement or judgment from creditor claims: while the statute of limitations to open a probate estate in Kansas is 6 months (K.S.A. § 59-2239(1)) and one year in Missouri (RSMo. § 473.444(1), the statutes of limitations for survivorship and wrongful death actions are longer (2-5 years, depending – see above). Plaintiffs could choose to wait out the probate statute of limitations in order to take advantage of non-claims statutes (Kansas: 6 months and 4 months, respectively K.S.A.§§ 59-2239(1) and 59-2236, and Missouri: 1 year and 6 months, respectively RSMo. §§ 473.444(1) and 473.360) and then open limited probate actions solely for the purpose of prosecuting a personal injury suit. Realize, however, that the nonclaims statutes in each state may not bar government agencies (tax and Medicaid) from seeking reimbursement for bills owed by decedent. Finally, an estate might be needed to create a vehicle to hold assets prior to distribution to a minor or a special/supplemental needs trust (to prevent the beneficiary from becoming ineligible for public benefits).
Special Considerations Pertaining to Settlements
Once all the above hurdles are cleared, Court approval of settlement may be necessary in an estate administration prior to the settlement becoming final. Since many settlements are confidential or contain non-disclosure clauses, and probate filings are a matter of public record, any information pertaining to the settlement proceeds should be filed under seal in order to prevent any breaches of contract or confidentiality; this usually entails an in camera review of settlement documents by the court. In drafting settlement agreements, it is often advisable to draft settlement agreements with these issues in mind (for example, recognizing that a probate court has discretion to require public disclosure of the same and use of “best efforts” only to obtain confidentiality is maintained).
I’ll examine the estates of defendants in Part III.