what happens to a lawsuit when the defendant dies california
A typical personal injury claim against an individual defendant resolves in 1 of two ways: (one) settlement with the defendant, or (more normally) his or her insurer, either earlier or during litigation; or (2) collection of a judgment post-trial. By definition, the second scenario requires the filing of a lawsuit by the plaintiff.
Frequently, the starting time scenario will as well, since obtaining a meaningful settlement offering from the accused or insurer frequently requires obtaining information during pre-trial discovery, which is generally undertaken during the pendency of a legal action.
A Deceased Defendant: What If You're Suing A Expressionless Person?
Just what happens when filing that lawsuit is non and then straightforward, because the accused is deceased, either as a event of the incident itself, or otherwise? Filing suit within the applicable statute of limitations, and thus preserving the plaintiff'south claim, requires a timely filing of a lawsuit confronting the appropriate defendant. In a case where the defendant is deceased, doing so requires compliance with statutory procedural requirements.
Can You Sue A Deceased Person?
The brusk answer to this question in California is yes. 2 sets of California statutes prepare out the applicable constabulary under these circumstances: Code of Civil Procedure Sections 337.xl through 377.42; and Probate Code Sections 550 through 554. The latter sections outline a more than streamlined form for filing a personal injury action confronting a deceased person, where the plaintiff seeks but to recover insurance proceeds. So they will be considered hither showtime.
Indeed, under nearly circumstances, a personal injury plaintiff'south true "target" for the recovery of damages against a deceased person is that individual's insurance coverage. The plaintiff may accept no interest at all in determining if the deceased defendant's estate has collectible assets, because the applicable insurance policy limits are adequate (or more than adequate) to pay his or her claim. These Probate Code sections provide a simplified means of filing suit and litigating the action nether such circumstances.
How To Sue An Manor: Understanding California Law
Probate Code Sections 550 and 552 provide that an action against a deceased person, where the plaintiff seeks recovery of insurance proceeds only, may be filed against "the Manor of [Decedent]." Summons shall and then be served on the insurer, not any manor representative. In fact, this means of filing suit may be utilized even if at that place was no estate e'er established for the decedent at all. In truth, the action is and so pursued against the insurance carrier. The statute states that the litigation shall and then "be conducted in the same mode as if the action were against the personal representative."
Probate Code Section 551 provides that, if the limitations period otherwise applicable to the action has non expired at the time of the decedent's death, an action under this affiliate may be commenced inside one year after the expiration of the limitations flow otherwise applicable. That statute thus protects the plaintiff who did non know at the time the activeness was filed that the defendant was deceased. In that circumstance, the plaintiff has a one year "grace menstruum" to file arrange under this statutory scheme.
Probate Code Section 553 provides that the insurer may deny or otherwise contest its liability in an action under this chapter, or by an independent activity; and that the event of the activeness does not adjudicate the rights of the estate, unless it is joined equally a political party.
The significant limitation, from the plaintiff's perspective, of utilizing these Probate Lawmaking section to continue with his or her personal injury claim is set up out in Probate Code Section 554, which requires that: "either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of amercement outside the limits or coverage of the insurance shall be waived. A judgment in favor of the plaintiff in the action is enforceable simply from the insurance coverage and not against belongings in the estate." So proceeding solely under these statutes will, in some circumstances, exist insufficient by itself.
In summary, these Probate Lawmaking sections provide an easy procedural mechanism and template for timely pursuing a personal injury claim against a deceased defendant where the insurance proceeds are all that the plaintiff seeks to recover. In addition to (or instead of) proceeding in this manner, the plaintiff tin seek to keep "in play" potential recovery of both the insurance proceeds and the estate's assets by filing conform in compliance with a second and separate set up of statutes dealing with suing the decedent's manor.
Lawmaking of Civil Procedure Section 377.40 states: "Field of study to Part 4 (commencing with Section 9000) of Division 7 of the Probate Code governing creditor claims, a cause of action against a decedent that survives may exist asserted against the decedent's personal representative or, to the extent provided by statute, confronting the decedent'south successor in involvement." That is the second means for a plaintiff to pursue his or her personal injury claims: by filing suit, in a proper manner, against the decedent's estate, or successor in involvement if there is none. The huge "red flag" hither is set out in the quoted portion of the statute: the plaintiff must timely file a creditor's claim against the manor (if it exists), in order to preserve the correct to go along with his or her action for damages. Otherwise, the action is barred.
Probate Code Section 377.41 sets out a like rule equally to continuation of an existing action, where the defendant dies while the activeness is pending. Information technology permits exchange of the estate equally a defendant, and then long as the plaintiff complies with the creditor'south claims requirements of the Probate Code. A plaintiff could, under such circumstances, alternatively choose instead to seek only recovery of insurance proceeds, by amending the action to state a crusade of action nether Probate Lawmaking Sections 550 and 552, discussed above.
Probate Code Section 377.42 notes that, when a personal injury or wrongful decease plaintiff proceeds confronting the estate: "all damages are recoverable that might have been recovered against the decedent had the decedent lived," except for castigating or exemplary damages.
Wrapping Up
Filing conform under either or both of these statutory schemes, depending on the circumstances, protects the plaintiff, and doing so complies with the applicative statute of limitations. It is important for counsel to exist aware of these procedural requirements to clinch that the plaintiff's claim is properly protected, and allowed to proceed, where the defendant is deceased.
Photo credit: https://world wide web.flickr.com/photos/whsieh78/8529343831/
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Ralph L. Jacobson
Source: https://www.gjel.com/blog/seeking-damages-against-deceased-defendants-in-california-personal-injury-cases.html
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