Opinion
No. 61093-7-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-2-04388-6, Kenneth L. Cowsert, J., entered December 4, 2007.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION.
A complaint naming deceased defendants and their marital community, but not their estates, fails to name a proper party. Because Pamela Messana's complaint for property damage named only a deceased couple and their marital community as defendants, we affirm the summary judgment order dismissing her complaint.
FACTS
On June 28, 2004, a car driven by respondent Leonard Quinn collided with a car driven by appellant Pamela Messana. The collision injured Messana and damaged her car.
In 2005, Leonard Quinn and his wife died. Probate proceedings for Leonard's estate commenced that same year and closed in March 2007.
On May 10, 2007, Messana filed a complaint in Snohomish County Superior Court for property damage suffered in the accident with Quinn. The only defendants named in the suit were Leonard and Jane Doe Quinn and their marital community.
On or about May 31, 2007, Messana learned that Leonard was deceased. Shortly before the time for service expired on August 10, 2007, Messana attempted to serve her suit on Thomas Cooper, the attorney for the personal representative of Leonard's estate.
In October 2007, counsel for the Quinns answered Messana's complaint and asserted various defenses, including improperly named defendants, insufficient service of process, lack of personal jurisdiction, and expiration of the statute of limitations. That same month, Messana moved to amend her complaint to substitute Leonard's estate as a defendant, but she later struck the motion.
In November 2007, the Quinns moved for summary judgment. Citing RCW 4.16.070 and .080, they argued that the suit was barred by the applicable statute of limitation because Messana did not serve the personal representative of Leonard's estate, did not name the estate as a party, did not move to re-open the estate, did not request an order authorizing alternative service, and never filed a creditor's claim against the estate.
The court granted summary judgment dismissing the complaint because "there was no dispute as to the material facts regarding the plaintiff's failure to effectuate proper service of process and personal jurisdiction over the defendant prior to the expiration of the applicable statute of limitations." Messana moved for reconsideration, arguing that the Quinns had not cited chapter 4.28 RCW in their motion for summary judgment, that the court therefore erred to the extent it relied on that statute in its ruling, and that the Quinns did not contend service on the personal representative's attorney was insufficient until their reply brief. The court denied the motion for reconsideration. Messana appeals.
Although the court's summary judgment order does not cite chapter 4.28 RCW, Messana alleges that the court referenced this statute in its oral ruling.
DECISION
We review a summary judgment order de novo, engaging in the same inquiry as the trial court and viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party. Summary judgment is proper only if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law.
Hearst Commc'ns, Inc. v. Seattle Times Co., 154 Wn.2d 493, 501, 115 P.3d 262 (2005).
CR 56(c); Hearst, 154 Wn.2d at 501.
Messana first argues that the Quinns did not carry their initial burden on summary judgment and that the superior court erred in deciding their motion based on authority and arguments made for the first time in their reply brief below. This argument is not supported by the record.
The Quinns' motion for summary judgment alleged that Messana had failed "to properly bring the claim within the three-year statute of limitations under RCW 4.16.080 or properly effectuate service under RCW 4.16.170." They specifically argued that personal service was not accomplished because "[n]either Mr. Quinn nor his estate has been properly served." They pointed out that Messana had not named Leonard's estate as a defendant, served the estate's personal representative, moved to re-open the estate, or moved for an order allowing alternative service. The Quinns also addressed and distinguished case law relating to the propriety of Messana's service on the personal representative's attorney. This was sufficient to carry their initial burden on summary judgment.
In response to the motion, Messana claimed that her complaint named the proper parties under RCW 11.40.060 and that service was proper under RCW 11.40.070. The Quinns replied that RCW 11.40.070 applied to creditor's claims filed in probate and was therefore inapplicable to the Messana's civil suit. To the extent the Quinns raised any new arguments in their reply brief, they were responsive to arguments and/or defenses raised by Messana and were properly considered by the superior court. In any case, contrary to Messana's assertions, the superior court was entitled to consider any statute relevant to the issues, regardless of whether the parties cited it.
Ellis v. City of Seattle, 142 Wn.2d 450, 460 n. 3, 13 P.3d 1065 (2000) ("[A]ny court is entitled to consult the law in its review of an issue, whether or not a party has cited that law.").
Messana next contends the trial court erred in concluding that she failed to properly serve her lawsuit before the statute of limitations expired. She alleges she timely served the estate's attorney and that such service was authorized by RCW 11.40.070(3)(a). The Quinns argue that this statute applies only to creditor's "claims," not lawsuits, and that service under the statute is ineffective in any event if, as here, the complaint fails to name the estate as a defendant or service is made on a closed estate.
Under RCW 4.16.080, the statute of limitations for personal injury actions is three years. That limitation period applies to actions against a decedent's estate for insurance proceeds. RCW 11.40.060; Wagg v. Estate of Dunham, 146 Wn.2d 63, 42 P.3d 968 (2002) (also interpreting RCW 11.40.011); Young v. Estate of Snell, 134 Wn.2d 267, 277-82, 948 P.2d 1291 (1997) (interpreting former version of statute, RCW 11.40.011).
The statute provides in part:
11.40.070. Claims — Form — Manner of presentation — Waiver of defects
(1) The claimant, the claimant's attorney, or the claimant's agent shall sign the claim and include in the claim the following information:
(a) The name and address of the claimant;
(b) The name, address . . . and nature of authority of an agent signing the claim on behalf of the claimant;
(c) A statement of the facts or circumstances constituting the basis of the claim;
(d) The amount of the claim; and
(e) If the claim is secured, unliquidated, contingent, or not yet due, the nature of the security, the nature of the uncertainty, or the date when it will become due.
Failure to describe correctly the information in (c), (d), or (e) of this subsection, if the failure is not substantially misleading, does not invalidate the claim.
(2) A claim does not need to be supported by affidavit.
(3) A claim must be presented within the time limits set forth in RCW 11.40.051 by: (a) Serving on or mailing to . . . the personal representative or the personal representative's attorney a copy of the signed claim; and (b) filing the original of the signed claim with the court in which probate proceedings were commenced. . . .
We need not reach the issues regarding the proper interpretation of RCW 11.40.070 or the effect of service on closed estates because we conclude Messana's failure to name the estate as a defendant is dispositive. It is well settled that "[a] putative defendant who dies before being served is not a proper party before the court." The proper party is the decedent's estate. The statutes concerning claims against estates and the survival of actions against deceased tortfeasors both "contemplate only actions against personal representatives."
Craig v. Ludy, 95 Wn. App. 715, 717, 976 P.2d 1248 (1999), review denied, 139 Wn.2d 1016 (2000).
Id.; Sutton v. Hirvonen, 113 Wn.2d 1, 6, 775 P.2d 448 (1989); see also Stella Sales, Inc. v. Johnson, 97 Wn. App. 11, 18-19, 985 P.2d 391 (When a party dies after being served, the action survives under RCW 4.20.050 but must be continued against the deceased party's representatives or successors in interest, and those substituted parties must be personally served.), review denied, 139 Wn.2d 1012 (1999).
Ch. 11.40 RCW.
Sutton, 113 Wn.2d at 6.
Here, it is undisputed that Messana only sued the Quinns and their marital community, that the Quinns were both deceased at the time of service, and that Messana never amended her complaint to include Leonard's estate. Messana argued below that she named the proper parties under RCW 11.40.060, which states in part:
Messana's responsive memorandum below stated in part:
Further, RCW 11.40.060 does not require that Plaintiff name the estate as the proper party. Under this statute, the claim may be brought "against the decedent or the decedent's marital community." This action was brought against both the decedent QUINN and his marital community. The complaint named the proper parties under RCW 11.40.060.
The time limitations for presenting claims under this chapter do not accrue to the benefit of any liability or casualty insurer. Claims against the decedent or the decedent's marital community that can be fully satisfied by applicable insurance coverage or proceeds need not be presented within the time limitation of RCW 11.40.051. . . . The claims may at any time be presented as provided in RCW 11.40.070, subject to the otherwise relevant statutes of limitations. . . .
(Emphasis added.)
Messana reads the reference to "[c]laims against the decedent or the decedent's marital community" as authorizing her to sue decedents and/or their marital communities without naming the real party in interest, i.e., the decedent's estate. We disagree.
Even assuming the word "claim" in RCW 11.40.060 encompasses not only the creditor's claims described in that chapter, but also lawsuits against an estate, the statute neither expressly nor implicitly alters the requirement that a lawsuit against a deceased person must name the decedent's estate. Because Messana's complaint named only deceased persons and their marital community, it did not name a proper party. That omission justified summary judgment.
This is a dubious proposition. RCW 11.40.060 only references "claims" against the estate; it says nothing about legal actions. And the Washington Supreme Court has emphasized that "[t]here is a difference between a `claim' presented by creditors of a decedent's estate and actions at law against a decedent's estate." Young, 134 Wn.2d at 272 n. 2; see also RCW 11.40.100(1) (suit on rejected claim must be brought against the personal representative); Schluneger v. Seattle-First Nat'l Bank, 48 Wn.2d 188, 292 P.2d 203 (1956) (legal action on rejected claim in probate is an ordinary civil action and not part of the probate proceedings; such action is governed by rules applicable to any other civil action). Messana's reading of RCW 11.40.060 also seems contrary to the Supreme Court's holding, mentioned above, that the statutes governing actions against deceased persons "contemplate only actions against personal representatives." Young, 134 Wn.2d at 272 n. 2; see also RCW 11.40.100(1); Schluneger, 48 Wn.2d 188.
We may affirm the judgment of the superior court on any ground supported by the record. Hogan v. Sacred Heart Med. Ctr., 122 Wn. App. 533, 94 P.3d 390 (2004), review denied, 153 Wn.2d 1026 (2005).
Affirmed.
For the Court: