Lawsuit of Deceased Plaintiff Dismissed Due to Death Occurring Before Complaint Filed

The lawyer representing the plaintiff Carolyn Repko (“Repko”) filed a lawsuit in her name in September 2018, not knowing that she had died nine months previously.  He filed suit against the defendant Our Lady of Lourdes Medical Center, Inc. (“Lourdes”) due to plaintiff’s fall which had occurred in September 2016.  The issue in Repko v. Our Lady of Lourdes Medical Center, 2020 N.J. Super. LEXIS 204 (App. Div. August 13, 2020) was whether the complaint was subject to dismissal because the complaint was filed by a dead person.

This claim stemmed from a fall suffered by plaintiff Repko, when she fell on the front steps at Lourdes, breaking her nose and receiving a cut over her eye, as well as several other injuries, in September 2016.  Three days later, she retained counsel.

She died from unrelated causes in 2017, fifteen months after her fall.  Repko’s counsel filed a complaint in her name in September 2018, just before the statute of limitations was to run, not knowing that she had died nine months earlier.  After Repko’s counsel gave the defendant an extension of time to file an Answer, the Answer was filed in November 2018 and discovery was served.  When Repko did not respond to her attorney’s letters, her attorney searched public records in February 2019 and found out she had died over a year before.

Repko’s counsel wrote to Repko’s son in April 2019 and eventually obtained an agreement to continue the case.  In September 2019, three years after the accident and 21 months after Repko’s death, her son sent Repko’s attorney a death certificate and Letters Testamentary.  Repko’s will had been admitted to probate in March 2018 and, it was at that time, that Letters Testamentary were issued to her son. 

In September 2019, Plaintiff’s counsel advised defendant Lourdes of Repko’s death and sought consent to amend the complaint.  The defendant refused, claiming that the complaint was a nullity because Repko was already many months dead when it was filed.

Hence, Repko’s counsel, now representing her estate, filed a motion to amend the complaint in October 2019.  The defendant Lourdes cross-moved to dismiss the action.  The trial court judge acknowledged that a dead person had no legal standing to bring a lawsuit but found that the decedent’s estate was entitled to “an equitable tolling of the statute until the plaintiff’s counsel finds out about the death and moves to amend the complaint.”

The judge referenced Rule 4:9-3, which would permit the amendment to the complaint to relate back to the original filing date of the complaint.  The trial court judge noted that if Repko had died an hour after filing, under Rule 4:9-3, the complaint would permit the amendment to relate back to the date the complaint was filed.  However, if the death occurs an hour before filing, that would mean the amended pleading could not relate back and that would be the end of the case.  The trial court judge found on an equitable basis that the estate should be permitted to amend the complaint and denied the defendant’s motion to dismiss. 

The defendant appealed this decision to the Appellate Division.  The question presented was “whether decedent’s estate could avoid the running of the statute of limitations by having its amended complaint relate back to the complaint filed in the decedent’s name nine months after her death.” 

The issue was one of standing to bring a lawsuit.  The plaintiff conceded that a dead person cannot sue in our courts and cannot continue a suit filed prior to death.  However, the plaintiff was contending that Rule 4:9-3, the relation back rule, applied to plaintiffs, as well as defendants.  The question, however, as framed by the court was “whether the estate’s claim can relate back to a complaint wholly ineffective to said judicial machinery in motion.”

The Appellate Division noted that plaintiff’s death prevented her from suing in her own behalf and, thus, the complaint filed in her name by her counsel was a nullity.  Thus, there was nothing for the estate’s complaint to “relate back” to.  The Appellate Division stated that the relation back rule cannot cure the failure to file a valid complaint in the first instance.

The Court noted that the decedent’s estate would have had a claim under the Survivor’s Act for her personal injury she suffered in her fall at Lourdes.  However, there is a two year statute of limitations for such claim which did not expire until nine months after Repko died. Thus, Repko’s estate still had a viable claim at the time of Repko’s death.

However, Repko’s counsel had no contact with his client in at least ten months leading up to the filing of the complaint.  Thus, she obviously was not available to authorize the filing of the suit.  Her executor did not send to her counsel the death certificate and Letters Testamentary for five months after being informed of the suit.  Thus, the Appellate Division found that even if equitable tolling was applicable in these circumstances, it found no basis for its application here.

Hence, because the complaint filed in Repko’s name nine months after her death was ineffective to invoke the Court’s jurisdiction, leaving nothing for the amended complaint proposed by her estate three years after the accident and twenty-one months after Repko’s death to “relate back” to under Rule 4:9-3, the Appellate Division found that the complaint was barred by the statute of limitations.  Thus, it reversed the trial court’s decision and dismissed the complaint.

Tags: equitable tolling, statute of limitations