Suing a Dead Defendant and Avoiding Timing Problems
How should a plaintiff proceed when the defendant dies before the action can be filed? What timing issues should the plaintiff be concernedabout? The relevant statute appears to be Virginia Code § 8.01-229(B)(2), entitled “Death of person against whom personal action may be brought.”
Subsection (a) 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.
Va. Code § 8.01-229(B)(2)(a).
Subsection (a) only applies if the defendant “dies before the commencement of such action and before the expiration of the limitation period.” Also, the plaintiff should disregard the above language talking about a claim against the decedent’s estate, which should not be confused with an action against the person. “[T]he statute . . . allows claims to be filed against the property of the estate, but provides that actions may only be filed against the decedent’s personal representative.” Swann v. Marks, 252 Va. 181, 184, 476 S.E.2d 170, 171 (1996) (emphasis in original). See also Va. Code § 8.01-6.3 (enacted in 2010 to address pleading in a fiduciary capacity).
The language that the plaintiff should focus on is that referring to an action against the personal representative – “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.” Va. Code § 8.01-229(B)(2)(a). This language applies when there is a personal representative in place before the statute of limitations expires. The plaintiff cannot allow the statute of limitations to run, and if a personal representative is appointed after that point, then use subsection (a) to sue the personal representative.
What happens if a personal representative cannot be appointed before the statute of limitations runs? For example, the defendant dies within a week of the limitations period expiring and no personal representative can be put in place before the period runs. Under these circumstances, subsection (a) is of no help. But this is where Virginia Code § 8.01- 229(B)(2)(b) could come into play.
Subsection (b) 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.
Va. Code § 8.01-229(B)(2)(b).
If there is no personal representative and the statute of limitation is about to expire, the plaintiff would be wise to file suit papers with the court naming the decedent as the defendant prior to the limitations period expiring. Then, when a personal representative is subsequently appointed, the papers can be amended to substitute the personal representative for the decedent. There is a two-year window to amend the suit papers after filing.
As explained by the Supreme Court of Virginia:
Prior to the enactment of subparagraph (b) [of Virginia Code § 8.01-229(B)(2)] in 1991, Virginia law provided that a suit filed against a deceased party was a nullity and, as such, could not operate to toll the statute of limitations. See, e.g., Rennolds v. Williams, 147 Va. 196, 198-200, 136 S.E. 597, 597-98 (1927). Furthermore, because the personal representative was a person distinct from the decedent, the mistaken naming of the decedent was not a misnomer and substitution of the personal representative did not relate back to the initial filing of the lawsuit. See Rockwell v. Allman, 211 Va. 560, 561, 179 S.E.2d 471, 472 (1971). Thus, if a litigant filed a personal action against a defendant who, possibly unbeknownst to the plaintiff, had died, that action was a nullity and the statute of limitations would continue to run. Subparagraph (b) addresses this circumstance by providing that a suit filed against a defendant who was deceased when the action was filed could be amended to substitute the decedent’s personal representative and would be considered timely filed if the substitution occurred within two years of the original filing date.
Parker v. Warren, 273 Va. 20, 24, 639 S.E.2d 179, 181
(2007).
In sum, if there is a personal representative in place before the statute of limitations has run, the plaintiff can use subsection (a) of Code § 8.01-229(B)(2). Subsection (a) gives the plaintiff one year from the date of appointment of the personal representative to file and this is the case even if the statute of limitations runs before the one-year period.
However, if the plaintiff cannot use subsection (a) and if it is not possible to get a personal representative in place before the statute of limitations runs, the plaintiff can fall back on subsection (b) of Code § 8.01-229(B)(2). The plaintiff can file a timely action naming the deceased defendant and then amend when there is a personal representative in place. There is a two-year window to amend (measure from the original filing).
If a plaintiff relies on the two-year window afforded by subsection (b), the plaintiff should be aware of Rule 3:5(e) of the Rules of the Supreme Court of Virginia. “No order, judgment or decree will be entered against a defendant who was served with process more than one year after the institution of the action against that defendant unless the court finds as a fact that the plaintiff exercised due diligence to have timely service on that defendant.” Va. Sup. Ct. R. 3:5(e). Thus, it could be problematic if the plaintiff files suit against the deceased defendant and fails to serve the complaint within a year of filing. The best strategy would be to amend and serve the complaint against the personal representative within a year of the original filing.
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