This week we explore the proper manner of suing dead people. Yes, that’s right, there are proper ways and improper ways. And, if you do it incorrectly, you lose!
First, the starting point: until 1991, a lawsuit against a person who had died prior to its filing was a nullity. “Thus, if a litigant filed a personal action against a defendant who, possibly unbeknownst to the plaintiff, had died, . . . the statute of limitations would continue to run.” Parker v. Warren, 273 Va. 20, 24, 639 S.E.2d 179, 181 (2007). And the error could not be cured by substituting the decedent’s personal representative, because the personal representative is a different person, so no relation back could occur as would happen if the plaintiff had simply mis-named a proper person.
Then, in 1991, the General Assembly enacted Code § 8.01-229(B)(2)(b), which provides:
If a person against whom a personal action may be brought dies before suit papers naming such person as defendant have been filed with the court, then such suit papers may be amended to substitute the decedent’s personal representative as party defendant before the expiration of the applicable limitation period or within two years after the date such suit papers were filed with the court, whichever occurs later, and such suit papers shall be taken as properly filed.
Code § 8.01-229(B)(2)(b).
That’s if you filed the lawsuit thinking the defendant was alive but then found out s/he was already dead. If you know before filing the lawsuit that the defendant has already died, then the correct procedure to take is set forth in Code § 8.01-229(B)(2)(a), which provides:
If a person against whom a personal action may be brought dies before the commencement of such action and before the expiration of the limitation period for commencement thereof then a claim may be filed against the decedent’s estate or an action may be commenced against the decedent’s personal representative before the expiration of the applicable limitation period or within one year after the qualification of such personal representative, whichever occurs later.
Code § 8.01-229(B)(2)(a).
This is because lawsuits can only be brought by and against living people (if someone dies while a lawsuit is pending, simply substitute that person’s successor in interest under Rule 3:17).
So, now that you’ve checked your facts and you know that the would’ve-been-about-to-be-a-defendant is dead, how do you style the lawsuit?
Do NOT name the estate as the defendant. “Virginia statutes do not authorize an action against an ‘estate.’ . . . A motion for judgment against an ‘estate’ is a nullity and cannot toll the statute of limitations.” Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996). The proper defendant in a lawsuit is the personal representative. Id. And, if you file against the estate, you can’t substitute the personal representative later:
[T]he substitution of a personal representative for the “estate” is not the correction of a misnomer. Misnomer arises when the right person is incorrectly named, not where the wrong defendant is named. The personal representative of a decedent and the decedent’s “estate” are two separate entities; the personal representative is a living individual while the “estate” is a collection of property. Thus, one cannot be substituted for another under the concept of correcting a misnomer.
Id.
So, now that you know you want to name the personal representative as the defendant, how do you do that?
The order of words used in the pleading matters. See, e.g., Herndon v. St. Mary’s Hosp., Inc., 266 Va. 472, 587 S.E.2d 567 (2003) (lawsuit brought in the name of “A and B, as parents and next friends of C, v. Defendant” was properly dismissed because parents were the named parties but the claim was for the minor; lawsuit should have been brought in the name of “C, by his parents and next friends, A and B, v. Defendant” – substitution was unavailable because the child and the parents were different people, so it was a misjoinder requiring dismissal, not a misnomer allowing amendment). Thus, for example, “Kenneth C. Peyton v. the Estate of Robert Judson James, Administrator, Edwin F. Gentry, Esq.” names the estate instead of the personal representative (so the lawsuit is a nullity, and the limitations period is still running, and the plaintiff is screwed). The lawsuit should be styled “Kenneth C. Peyton v. Edwin F. Gentry, Administrator of the Estate of Robert Judson James.” See Estate of James v. Peyton, 277 Va. 443, 455, 674 S.E.2d 864, 870 (2009).
(Note that, in figuring out whether you did it correctly, we look not only at the caption of the pleading but at the pleading as a whole, including the affirmative allegations contained in it as well. Id.).
Doing this incorrectly cannot be corrected by amending the lawsuit for misnomer under Code § 8.01-6; a “[m]isnomer arises when the right person is incorrectly named, not where the wrong defendant is named.” Just like if you name a county instead of its board of supervisors as a defendant in a case challenging the board’s actions, or an incompetent instead of his guardian as plaintiff in a lawsuit, where a complaint is filed against an estate in care of the administrator, instead of directly against the administrator, then “the wrong defendant was named, and Code § 8.01‑6 is not applicable to such a misjoinder. . . . The only resolution in such a case, in the absence of a statute of limitations bar, is to commence a new action against the proper party.” Id. at 456, 674 S.E.2d at 870 (entering final judgment against the plaintiff because the limitations period had expired, so the plaintiff could not now file a new suit naming the personal representative).
