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Survivor’s Act Claim Barred Due To The Failure To Timely Appoint A General Administrator Of The Deceased Plaintiff’s Estate

By on October 8, 2021 in Claims with 0 Comments

This matter arises from an automobile accident on December 21, 2016 when the decedent, Joseph Chandler, was struck by an automobile driven by defendant Todd Kasper.  The decedent suffered significant injuries and passed away six days later.  The decedent’s daughter, Damaris Chandler, obtained an appointment as Administrator Ad Prosequendum but was not appointed as General Administrator of her father’s estate until December 2020.  The issue in Chandler v. Kasper, 2021 N.J. Super. Unpub. LEXIS 2412 (App. Div. Oct. 7, 2021) was whether the Survivors’ Act claim was barred because there was no estate established before the statute of limitations ran. 

Just prior to the statute of limitations running as to the decedent’s and his heirs’ claims, on December 18, 2018, the decedent’s daughter, plaintiff Demaris Chandler, filed a complaint as Administrator Ad Prosequendum of her father’s estate.  The plaintiff sued the motor vehicle driver Todd Kasper, the owner of the vehicle Thomas Kasper, and Kazz, Inc., d/b/a Kasper’s Corner and Kasper Automotive. 

The complaint alleged that Joseph Chandler died intestate and that plaintiff had been appointed as his Administrator Ad Prosequendum.  The First Count pled a claim under the Survivor’s Act for the personal injuries and pain and suffering the decedent suffered prior to his death.  The Second Count asserted a wrongful death action in which his survivors and next of kin claimed entitlement to damages.

The defendants asserted as an affirmative defense that the plaintiff’s claims were statutorily barred under both the wrongful death statute and the Survivor’s Act.  After the parties conducted discovery, the defendants filed a motion for summary judgment, seeking dismissal of the Survivor’s Act claim because plaintiff lacked standing to bring that claim as letters of general administration had never been issued to her. 

Plaintiff opposed that motion, explaining that there was a delay in her being able to seek appointment due to disagreements between her and her siblings.  Moreover, from her discussions with representatives of the county surrogate’s office that, because there were no assets in the estate, it was only necessary for her to be appointed as Administrator Ad Prosequendum to file the lawsuit and later be appointed as General Administrator to distribute any recovery.  Only when the defendants made a small offer at mediation to settle the case in August 2020 was she able to persuade her siblings to agree to her appointment.  It was not until December of 2020 that plaintiff’s siblings renounced and allowed her to proceed to seek letters of administration.  (That appointment was well after the statute of limitations had run on the Survivor’s Act claim.)

At the trial court level, the judge denied the defendants’ motion for summary judgment. Essentially, he found that there was a defect in the plaintiff’s standing but that it would be inequitable to deny a party their day in court because of ignorance and the defendants’ argument was essentially at best a “technical argument.”  He found that the statute of limitations defenses should not be permitted where a mechanical application would inflict an obvious and unnecessary harm on the party who holds the claim.  Moreover, the judge pointed out that the parties participated in an arbitration and discovery for years without defendants raising any issues as to standing.  While there was a defect in standing, the judge did not find that it mandated the sanction of dismissal.

The defendants appealed this ruling to the Appellate Division on an interlocutory basis.  On appeal, the defendants “challenged the judge’s legal conclusion that despite the running of the statute of limitations plaintiff should be allowed to amend the complaint to relate back to its initial filing.” 

The Appellate Division noted that there was an important distinction between the wrongful death action and the Survivor’s Act action.  The Court noted that the former belonged to the individual survivors of the decedent and the latter belonged only to the decedent’s estate.  The Survivor’s Act preserves to the decedent’s estate any personal claims that decedent would have had if he or she would have survived but permits “only an executor, assuming on behalf of an estate, to recover the damages the testator would have had if the testator was living.”  The Court pointed out that a wrongful death action, on the other hand “must be brought in the name of an Administrator Ad Prosequendum of the decedent for whose death or sought, or by an executor where the decedent’s will has been probated.”  The recovery for a wrongful death action belongs to the decedent’s heirs.

Based upon the Survivor’s Act statute and the wrongful death statute, the Administrator Ad Prosequendum is the proper party to bring a wrongful death action but a General Administrator is the proper party to institute a survival action.  Further, the Survivor’s Act includes a provision which tolls a statute of limitations for 6 months following death on a claim belonging to a decedent with the purpose to provide executors and administrators with a limited period of time after death to evaluate potential claims available to the estate. 

The Appellate Division disagreed with the motion judge’s determination that the complaint in this matter could have been amended to correct what was obviously plaintiff’s lack of standing to bring the survivor’s action in her capacity as Administrator Ad Prosequendum.  The Court noted that her reasons for not pursuing letters of general administration “are of no moment.”  The filing of the complaint prior to the establishment of an estate was a “nullity.” 

The Court pointed out that any delay caused by a dispute among the heirs of siblings “could have been avoided with the filing of an appropriate probate action long before the statute of limitations expired for the filing of the Survivor’s Act claim.”  The Appellate Division found that the “plaintiff did not have that legal right as to the Survivor’s Act action at the time the complaint was filed and did not acquire it until after the statute of limitations had run on the estate’s claim under that act.”  Even though the defendants had notice of the claim through service of the original complaint, “that pleading remained a nullity and could not have been asserted once the statute of limitations had run.” 

The Court further noted that while it appreciated that the motion judge endeavor to obtain an equitable result, the “governing law simply does not authorize it.”  Hence, the Appellate Division reversed the trial court’s decision and remanded for an entry of an order dismissing the Survivor’s Act action count of the complaint.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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