Argument Report: What Happens When The Plaintiff Sues a Defendant Who Has Died?

On the first argument day of the May term, the Justices of the Illinois Supreme Court actively questioned both sides in the first civil case on the docket, Relf v. Shateyeva. Relf involves an unusual question: is a complaint against a deceased defendant barred if the plaintiff doesn't name the defendant's personal representative? Our detailed preview of the facts and lower court holding in Relf is here. The video and audio of the argument is available here.

The plaintiff sued the defendant for injuries received in an automobile accident. The problem was, the defendant had died long before the complaint was filed (only three months after the accident). Relf involves a conflict between subsections (b) and (c) of 735 ILCS 5/13-209.

Subsection (b) provides that "if a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, and is not otherwise barred," the plaintiff may sue the defendant's personal representative within six months after the decedent's death, or "if no petition has been filed for letters of office for the deceased's estate," the court may appoint a special representative following notice to the decedent's heirs or legatees.

Subsection (c), on the other hand, provides that "if a party commences an action against a deceased person whose death is unknown to the party . . . the action may be commenced against the deceased person's personal representative" if, among other things, the plaintiff moves with reasonable diligence to substitute and serve the personal representative. If process is served more than 6 months after the issuance of letters of office, "liability of the estate is limited as to recovery to the extent the estate is protected by liability insurance."

When the plaintiff discovered the defendant had passed away, her counsel asked that a special administrator be appointed -- who turned out to be a legal assistant in plaintiff's counsel's office -- and for leave to amend her complaint to name the special administrator as defendant. The defendant responded by moving to dismiss on the grounds that the plaintiff hadn't named the decedent's personal representative, making the complaint void; the Circuit Court granted the motion, holding that the complaint was barred by Section 13-209(b). The Appellate Court (First District, Second Division) reversed, holding that since the plaintiff was unaware of the defendant's death when she filed, the action was governed by Section 13-209(c), not subsection (b).

Counsel for the defendant opened the argument. Justice Freeman asked counsel how subsections (b) and (c) of the statute should be read together. Counsel responded that subsection (b) applied when the defendant's death was known prior to filing, and (c) applied when the plaintiff was unaware that the defendant had died. Nevertheless, counsel argued, the two subsections should not be read entirely separately. Justice Burke asked counsel what the applicable procedure was to allow a plaintiff to have a personal representative appointed. Counsel responded that the Appellate Court hadn't addressed that issue. She contrasted the decision with the Third District's decision in Keller v. WalkerThere, the Appellate Court held that the statute should be read as a whole, and subsection (b) was instructive as to how a personal representative should be appointed in connection with subsection (c). Justice Garman asked counsel whether she thought the six month filing deadline in subsection (b) had any import for the case; counsel responded that subsection (b) was relevant only with respect to properly appointing a personal representative. Counsel pointed out that the decedent had had an open and active probate estate at the time the suit was filed, and there was no reason given in the record why the estate had not been located and the administrator appointed to defend the case. Justice Karmeier asked whether there is any import to the difference in language about personal representatives between the two subsections. Counsel responded by pointing out that the statute uses different terms: a "personal representative" is the deceased's appointed representative, while a "special representative" is someone not associated with the defendant. The distinction in the language is purposeful, defendant argued. Justice Theis asked what the prejudice is from naming a special representative rather than a personal representative, since if the case returned to the trial court, the only asset at risk (because of the passage of time) would be the estate's insurance policy. Counsel responded that lack of notice of the suit was the prejudice. Justice Theis asked whether the lack of notice was a jurisdictional question. Counsel again argued that the deceased's heirs have a right to know about the suit, and pointed out that the plaintiff had never asked for leave to name the personal representative who was administering the estate. Justice Karmeier noted that under the circumstances, the case fell under subsection (c). Counsel agreed that plaintiff was not aware that the defendant was deceased when she filed suit, but subsection (b) was nevertheless relevant for identifying who the suit should be filed against. Indeed, the plaintiff seemed to agree, according to the defendant, since the plaintiff's motion at the trial court for leave to appoint a special administrator stated (incorrectly) that there was no probate estate. Justice Theis asked counsel whether she thought there was something objectionable about the legal assistant to plaintiff's counsel being named special administrator. Counsel conceded that some cases have allowed the practice, but suggested that there was something inherently wrong about it with an open probate estate.

Justice Karmeier began the argument of counsel for the plaintiff by asking whether there is any difference between a personal representative and a special representative. Counsel responded that Black's Law Dictionary defines "personal representative" as including a special representative. Justice Karmeier suggested that subsection (c) covered the situation, and if so, the plaintiff would be covered by serving the personal representative of the probate estate. So why appoint a special representative? Counsel responded that plaintiff was unable to locate the estate on the Cook County computer system, so a special administrator was chosen. Justice Karmeier asked counsel whether he was suggesting that a personal representative and a special representative were the same thing; counsel said that Black's Law Dictionary supported that view. If the legislature had wanted subsections (b) and (c) read together, it would have said so. The statute defines three categories, plaintiff argued: deceased plaintiffs in subsection (a), a defendant who plaintiff knows is dead in subsection (b), and a defendant who plaintiff does not know is dead in (c). Justice Garman asked why, if plaintiff discovers an open estate after appointing a special administrator, he or she shouldn't be required to serve the personal representative of the estate? Counsel responded that nothing in the statute required it. The defendant could have moved to substitute the personal representative at any time, but chose instead to move to dismiss. Justice Karmeier asked at what point the defendants had the opportunity to substitute given that they didn't know about the lawsuit until after a special representative was appointed. Counsel responded that plaintiffs served the special administrator, who tendered the complaint to the insurance company, who they appeared in the case. The insurer could have then substituted in the personal representative at any time.  Counsel argued once again that subsections (b) and (c) should be read separately, but Justice Garman pointed out that statutes were traditionally read as a whole to achieve consistency. Counsel responded that subsection (b) involved a class of litigants not present in this case. Justice Theis asked what difference it made whether the assets of the estate were at risk. Counsel responded that when the assets of the estate are at risk, notice becomes important, but the present case was well past that point.  Justice Karmeier asked whether, if the plaintiff had found the personal representative and appointed a special representative anyway, would that matter? Counsel responded that it wouldn't have made a difference. Justice Karmeier asked whether plaintiff's view was that she could appoint a special representative and simply bypass the personal representative. Counsel responded that a personal representative included a special representative. Subsection (c) is silent as to whether a party can have a special representative appointed when a personal representative was in place. Justice Karmeier asked how counsel explained away subsection (b)(2), which provides that a special representative may be appointed when no petition for letters of office has been filed. Counsel again argued that subsection (b) (2) applies to a different class of litigants. The legislature was specific in subsection (b) because the estate's assets were at risk. The legislature was silent, counsel argued, in subsection (c) because the estate was not at risk.

As the rebuttal argument began, Justice Thomas asked counsel to respond to plaintiff's comment that there would be no action absent the estate's insurance coverage. Counsel responded that it made no difference: the family and administrator nevertheless had the right to know about the suit. Justice Thomas mentioned the comment of plaintiff's counsel that defendant had made no attempt to substitute the personal representative; counsel asked why it should be the defendant's duty to do so. Justice Theis noted defendant's view that the estate's heirs have a right to know of the suit; even if that is so, why is the failure to name the personal representative a bar to the suit? Counsel responded that under the statute, when the personal representative is not named, the claim is barred. Justice Thomas asked whether the family might not say they didn't want to be substituted in as parties. Counsel responded that that was the family's choice. Justice Thomas pointed out that even if plaintiff had moved to amend, that might not have ended the matter - defendants might have insisted on proceeding with the motion to dismiss. Justice Thomas suggested that the question was ultimately of little consequence whether the Supreme Court agreed with the trial court or the Appellate Court. Counsel once again cited Keller v. Walker, and commented that although the point was a technicality, that wasn't dispositive. Justice Karmeier asked what happens if the Court agreed with the defendant - is the lawsuit over? Counsel said yes, because the plaintiff never asked to amend. Both the legislature and the Probate Act use "personal representative" and "special representative" in different senses, counsel argued. A mere lack of exposure to the estate's assets doesn't mean there is no prejudice to the defendant.

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