Summary
explaining that Ohio amended § 2117.07 to permit recovery against a deceased personal-injury tortfeasor for insurance liability payouts because the state wanted “to alleviate the inequity that R.C. 2117.06 worked upon parties who suffered bodily injury in some instances where the defendant died before the lawsuit was filed.”
Summary of this case from Andrews v. City of ClevelandOpinion
No. 71-793
Decided July 12, 1972.
Executors and administrators — Claims against estate — Presentment after four months — R.C. 2117.07 — No claim covered by insurance filed — Action against executor and insurer — For bodily injuries allegedly caused by decedent's negligence — Time within which to bring — Action commenced, when — Timely service on insurer.
1. Where it does not appear that any claim covered by an automobile liability insurance policy of a decedent has been filed against the estate of the decedent within the period specified in R.C. 2117.06, or as provided in and within the time specified in R.C. 2117.07, such policy is not an asset of the decedent's estate within the meaning of R.C. 2117.07. (Paragraph two of the syllabus in Meinberg v. Glaser, 14 Ohio St.2d 193, approved and followed.)
2. Where it is alleged in an action for bodily injuries that such injuries were proximately caused by the negligence of a decedent and that he had a policy of insurance insuring him against liability for such negligence, and it does not appear that any other claims covered by such insurance have been asserted, such action may be brought against the executor or administrator of such decedent, and decedent's liability insurer, at any time within the statute of limitations on such actions without presenting a claim against the estate within the time specified in R.C. 2117.06 or R.C. 2117.07, and timely service of summons upon the insurer-defendant is sufficient to commence the action.
APPEAL from the Court of Appeals for Erie County.
Appellants herein were injured on April 1, 1968, while riding in an automobile driven by decedent, Wetzel Crum. Loretta Crum was appointed administratrix of the decedent's estate and she served in that capacity until discharged on March 29, 1969.
On March 20, 1970, appellants filed an action in the Court of Common Pleas, seeking damages for personal injuries, naming as defendants the present appellees, Loretta Crum, administratrix, and State Farm Insurance Co., Inc., the decedent's liability insurer. The only source from which recovery was sought was the decedent's insurance policy. No application to reopen the estate or to reappoint the administratrix was made at that time.
On April 9, 1970, the Probate Court entered an order which directed that the estate of Wetzel Crum, deceased, "shall remain open for the sole purposes of administration of the personal injury law suit against the administratrix, and State Farm Insurance."
On April 10, 1970, Loretta Crum filed a motion to have herself dismissed from the action and to have the praecipe for service of summons set aside, and State Farm Insurance filed a demurrer to the petition for damages.
The Court of Common Pleas allowed both the motion and the demurrer and that decision was affirmed by the Court of Appeals.
The cause is before this court pursuant to our allowance of a motion to certify the record.
Murray Murray Co., L.P.A., and Mr. Jerry B. Murray, for appellants.
Messrs. Steinemann, Zeiher, Beamer Schell and Mr. George C. Steinemann, for appellees.
It is clear that appellants were barred from presenting claims against the assets of the estate of Wetzel Crum. They did not "present their claims to the * * * administrator * * * within four months after the date of the appointment of the * * * administrator * * *," pursuant to R.C. 2117.06, or within the nine-month time then specified in R.C. 2117.07. See, Fortelka v. Meifert (1964), 176 Ohio St. 476, 200 N.E.2d 318; Beach v. Mizner (1936), 131 Ohio St. 481, 3 N.E.2d 417. Likewise, they were precluded by the terms of R.C. 3929.06 from instituting any action directly against the decedent's liability insurer because they failed to first obtain a "final judgment" against the administratrix "for loss or damage on account of bodily injury." See Luntz v. Stern (1939), 135 Ohio St. 225, 20 N.E.2d 241. However, other factors in this case require further discussion.
While the relevant statutes speak of claims against "an estate," it seems axiomatic that the General Assembly's real concern is for the proper and expeditious disposition of the assets of an estate. The recent legislative history of R.C. 2117.07 offers persuasive support for this conclusion. (H.B. No. 13, 130 Ohio Laws 617; Am. S.B. No. 103, 133 Ohio Laws 237.)
The last paragraph in R.C. 2117.07, added to the statute by an amendment effective August 9, 1963, states: "Nothing in this section or in Section 2117.06 * * * shall reduce the time mentioned in Section * * * 2305.10 * * * provided that no portion of any recovery on a claim brought pursuant to such section * * * shall come from the assets of an estate * * *." R.C. 2305.10 is the two-year statute of limitation on actions for bodily injury.
We had occasion to discuss the effect of the 1963 amendment in Meinberg v. Glaser (1968), 14 Ohio St.2d 193, 237 N.E.2d 605. There, we held that "where it does not appear that any claim covered by an automobile liability insurance policy of a decedent has been filed against the estate of the decedent within * * * [the times specified in R.C. 2117.06 or R.C. 2117.07], such policy is not an asset of the estate of the decedent * * *." We also held that "where it is alleged in an action for bodily injuries * * * that such injuries * * * were proximately caused by the negligence of a decedent and that he had a policy of insurance insuring him against liability for such negligence and it does not appear that any other claims covered by such insurance have been asserted, such action may be brought against the executor or administrator of such decedent at any time within two years after the cause thereof arose without presenting a claim against the estate within the four-month time specified in Section 2117.06, Revised Code, or as provided in and within the nine-month time specified in Section 2117.07, Revised Code."
The procedural guidelines of Meinberg are applicable to the facts of the instant case. Appellants sought no assets of the estate. They alleged personal injuries proximately caused by the way in which decedent operated his vehicle, and that decedent had a policy insuring him against liability for such conduct. Under Meinberg and R.C. 2305.17, appellants' action would have been duly commenced if they had properly summoned the administratrix within one year after March 20, 1970. If judgment was obtained against her, the provisions of R.C. 3929.06 would operate to secure the covered portion of its recovery from the decedent's insurer.
That statute provides: "An action is commenced within the meaning of Sections 2305.03 to 2305.22, inclusive, and Sections 1302.98 and 1304.29 of the Revised Code, by filing a petition in the office of the clerk of the proper court together with a praecipe demanding that summons issue or an affidavit for service by publication, if service is obtained within one year." The provisions of this statute are now incorporated in Civ. R. 3(A).
In the instant case, and unlike the procedure followed by the parties in Meinberg, appellants named both the former administratrix and decedent's liability insurer as defendants, and attempted to obtain service upon both. Although their action was filed within the statute of limitation and they did serve the defendant liability insurer within time, service of summons upon the decedent's representative was never acquired.
From the foregoing, it becomes evident that the issue now presented is whether the service obtained upon the decedent's liability insurer, under the facts before us, was sufficient to commence appellants' action below.
By operation of law, the decedent's liability insurer is now the sole entity that can be required to respond in possible damages to the appellants' allegations. As such, it is the only defendant below which has any interest in the outcome of this litigation. It arrives at this position by virtue of the contract it made with the decedent and the consideration which supports that contract. The presence of a legal representative of the estate under these facts has become perfunctory; a methodical posture which is maintained out of a desire to obviate any possibility that the existence of an insurer as a party defendant could influence the verdict of the jury. In order to implement that posture, these appellants' best course of action would have been to have had the administratrix reappointed, or "some other suitable person" appointed, to receive service of summons (see In re Estate of George, infra) and have acquired service upon such person in his representative capacity. Nevertheless, we are convinced that the failure to follow that exact procedure in the instant case should not, in itself, bar appellants from their action.
The amendments to R.C. 2117.07, and our procedural elaborations upon it in Meinberg, were intended to alleviate the inequity that R.C. 2117.06 and 2117.07 worked upon parties who suffered bodily injury in some instances where the defendant died before the lawsuit was filed. See Kent, Notification of Tort Claims Against Decedent's Estates: A Trap for the Unwary Lawyer, 35 Ohio Bar (No. 50), 1555 (1962). They were not intended to be instrumental in depriving persons of their day in court where they have performed all duties concomitant with due process and have satisfied statutory requirements regarding service of summons upon the only interested defendant, commencement of actions and statutes of limitations.
It has not been alleged or shown that a failure to obtain service upon some representative of the estate of Wetzel Crum would prejudice appellee State Farm in any way in a trial on the merits of this case. The trial court can, and should, "readily avoid any risk of the jury finding out that recovery of any judgment is to be limited to something other than an asset of the estate, such as liability insurance." For instance, "evidence as to the availability of such an asset can be offered and reviewed out of the presence of the jury. Although the pleadings will disclose the limited source for payment on the judgment, it is not necessary to submit the pleadings to the jury." Meinberg v. Glaser, supra, at page 201.
The temporary appointment of some representative of the estate for the duration of the trial may still be secured. As we said in In re Estate of George (1970), 24 Ohio St.2d 18, 21, 262 N.E.2d 872:
"* * * inasmuch as no recovery is sought from the assets of the estate itself, vacation of the judgment closing the estate is not considered a prerequisite to reappointment of the administrator for the purpose of accepting service of summons.
"* * *
"* * * The administrators involved here voluntarily accepted appointment in the first instance, and thereby subjected themselves to the burdens of administration. Those burdens necessarily included the possibility that an action might be maintained under R.C. 2117.07 seeking recovery from decedent's insurer. The fact that the estate has been closed does not affect appellant's right to proceed under the latter statute. The reappointment places no further burden on appellees, or the estate, as they are nominal defendants only; the estate will not be chargeable with any recovery resulting from the action and the insurance company will be required to defend the action.
"We hold that in a negligence action for the recovery of damages, instituted under R.C. 2117.07 against an administrator seeking to recover only from the decedent's liability insurer, where the administrator of the estate of the decedent has been discharged and the estate closed, the Probate Court may reappoint the administrator or appoint some other suitable person for the purpose of accepting service of summons." (Emphasis added.)
The decision of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas for appropriate proceedings.
Judgment reversed.
O'NEILL, C.J., SCHNEIDER, STERN and BROWN, JJ., concur.
LEACH, J., concurs in paragraph one of the syllabus and in the judgment.
CORRIGAN, J., dissents.
I concur in the judgment and in paragraph one of the syllabus. My single objection to the majority opinion is one essentially of semantics. Reference is made therein to two parties defendant: (1) "the executor or administrator of such decedent" and (2) "decedent's liability insurer." Although so designated by the plaintiffs in their attempts to secure service of process on the "estate," I believe that service on the "insurer" can and should be considered as constituting service on the "estate" herein on the reasoning that, in legal actuality, there is but one party defendant, by whatever name called.
While the insurer's presence in the case as the real party-in-interest is not disclosed to the jury under the procedural scheme of R.C. 2117.07, as outlined in Meinberg v. Glaser (1968), 14 Ohio St.2d 193, this fact should not, and as held by the majority herein does not, permit the actual party-in-interest to escape liability, where properly served in its own name prior to the running of the statute of limitations, on the basis of the legal fiction that its alter ego, the "estate," had not been served in the manner ordinarily required for service of process on an estate.