Deceased Plaintiff’s Complaint Dismissed Where Death Occurred Before Complaint Filed – by Jane Ann E. Whitchurch

Can a plaintiff’s attorney file a complaint on behalf of a plaintiff in said plaintiff’s name when the plaintiff is deceased?

This was the issue facing the court in the matter of Carolyn Repko v. Our Lady of Lourdes Medical Center, Inc., 2020 N.J. Super. LEXIS 204 (App. Div. August 13, 2020) – whether the complaint was subject to dismissal as same was essentially filed by a dead person.

By way of background, the underlying cause of action arises out of an accident that occurred in September 2016 when Plaintiff, Carolyn Repko, (“Repko”), fell on the steps at the entrance to Our Lady of Lourdes Medical Center and sustained a laceration over her eye and several other injuries. Significantly, she retained counsel shortly thereafter; however, she died from unrelated causes in December 2017. Having failed to maintain contact with his client, counsel filed a Complaint in Repko’s name in September 2018 in order to comply with the two year personal injury statute of limitations. As is common, counsel also consented to his adversary’s request for an extension of time within which to file an Answer and an Answer was filed on behalf of Our Lady of Lourdes Medical Center in November 2018. Plaintiff’s counsel was served with Defendant’s discovery demands and reached out to his client. In February 2019, having received no response from Repko, counsel searched public records and learned his client had died in December, 2017. Counsel then waited until April 2019 before he contacted Repko’s son, who ultimately consented to proceed with his mother’s claim. However, Repko’s son did not provide counsel with his mother’s death certificate and Letters Testamentary until five months later, in September 2019, three years after the date of accident and almost two years from Repko’s date of death.

Upon receipt of the death certificate and Letters Testamentary, Plaintiff’s counsel notified his adversary of Repko’s death and requested consent to amend the Complaint and name the estate. Defendant refused on the basis that the Complaint was invalid having been filed on behalf of a Plaintiff who was deceased at the time of filing. Nevertheless, Plaintiff’s counsel, acting on behalf of the estate, filed a motion to amend the Complaint in October 2019 and Defendant filed a cross-motion to dismiss Plaintiff’s Complaint.

At oral argument, the trial court judge acknowledged that a deceased person has no legal standing to bring a cause of action but ruled that a decedent’s estate was entitled to “an equitable tolling of the statute until the plaintiff’s counsel finds out about the death and moves to amend the complaint.” Specifically, the judge cited Rule 4:9-3 which would permit the amendment to the Complaint to relate back to the original filing date of the Complaint. The trial court judge then found that, pursuant to Rule 4:9-3, if the decedent plaintiff had died an hour after the date of the filing of the Complaint, the amendment would be permitted to relate back to the filing date. However, if the plaintiff died an hour before the filing of the Complaint, the amended pleading could not relate back to the filing date and there could be no permissible cause of action. Based upon this interpretation, the trial court judge found that on an equitable basis, the plaintiff’s estate should be permitted to amend the Complaint to name the estate. The defendant’s Motion to Dismiss was denied.

Defendant took this decision to the Appellate Division and presented the question of standing to bring a lawsuit and specifically “whether decedent’s estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in the decedent’s name nine months after her death.” The Court, however, framed the issue as “whether the estate’s claim can relate back to a complaint wholly ineffective to said judicial machinery in motion.” The plaintiff conceded the a deceased person cannot sue and cannot contine a suit filed prior to death but contended that Rule 4:9-3 applied to plaintiffs as well as defendants.

The Appellate Division found that a deceased plaintiff cannot sue on her own behalf and, thus, the Complaint filed in her name was null. As such, there was no Complaint or date of filing “to relate back” to. The Appellate Division thus found that the “relation back rule”, (Rule 4:9-3), cannot cure the failure to file a valid Complaint. The court further stated that the decedent’s estate would have had a valid claim under the Survivor’s Act for Repko’s personal injuries sustained in the subject fall in September 2016 had a Complaint been filed within two years of the accident and thus within nine months of Repko’s death. Unfortunately for the estate, where counsel did not have any contact with his client for approximately ten months up until the time the Complaint was filed, which was after Plaintiff’s death, and where the executor of the estate did not provide counsel with the death certificate and Letters Testamentary for another five months after the Complaint was filed, the Appellate Division found there was no basis for the application of equitable tolling in the within matter.

As such, where the Complaint was filed in the deceased plaintiff’s name nine months after her death, leaving nothing for a proposed amended Complaint on behalf of the estate to “relate back to” pursuant to Rule 4:9-3, the Appellate Division ruled that the Complaint was barred by the (two year) statute of limitations and reversed the trial court’s decision. Plaintiff’s Complaint was dismissed.

ABOUT THE AUTHOR:  Jane Ann Whitchurch is an experienced litigator and transactional attorney with over 25 years’ experience handling diverse matters. Practice areas include tort defense, construction litigation, auto and trucking litigation, premises liability litigation, insurance coverage, employment litigation, public entity defense, general liability litigation, commercial litigation, real estate and wills and trusts.