Michael J. Stapleton
Ralph E. Dowling
Brenda M. Clapper
Cheryl M. Knodle
Lafayette, Indiana ATTORNEY FOR APPELLEE
Michael J. Stapleton
Ralph E. Dowling
opened and a special representative appointed. Also on February 7, 1997, Richie moved in
the personal injury suit to amend his complaint to change the defendant from Leanne Smith
(Deceased) to Louis D. Evans special administrator of the Estate of Leanne Smith. The
trial court granted Richie's motion to amended his complaint, denied
motion for summary judgment, and certified its order for interlocutory appeal.
The majority in the Court of Appeals held that Richie's claim was barred, reasoning that (1) Richie's petition was not effective to open Smith's estate because, after the statute of limitations had expired, he was not an interested person with standing to open the estate under Indiana Code § 29-1-7-4, and (2) the amended complaint did not relate back to date of original filing and because no estate existed until after the statute of limitations had run the claim was barred. Indiana Farmers Mut. Ins. Co. v. Richie, 694 N.E.2d 1220 (Ind. Ct. App. 1998). Judge Bailey dissented. There are no disputed material facts and this appeal presents only a question of law.
one year after death. Second, as a general matter, subsection (a) bars all claims unless they
are filed within five months after the first published notice to creditors or three months after
the court has revoked probate of a will. Finally, and central to this case, subsection (f)
contains an exception from these general propositions for tort claims against the decedent.
Nothing in this section shall affect or prevent the enforcement of a claim for injury to person or damage to property arising out of negligence against the estate of a deceased tort feasor within the period of the statute of limitations provided for the tort action. A tort claim against the estate of the tort feasor may be opened or reopened and suit filed against the special representative of the estate within the period of the statute of limitations of the tort. Any recovery against the tort feasor's estate shall not affect any interest in the assets of the estate unless the suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the same as apply in ordinary civil actions.
Ind. Code § 29-1-14-1(f) (1998).See footnote
This subsection preserves a claim for injury to person
against the estate of a deceased tortfeasor as long as the action is filed within the period of
the statute of limitations provided for the tort action, which in this case is two years from
the date of the accident. Ind. Code § 34-11-2-4 (1998). See also Slater v. Stoffel, 140 Ind.
App. 131, 221 N.E.2d 688 (1966)
; 1B Henry's Probate Law and Practice § 10, at 310
(7th ed. 1978).
Indiana Farmers points to the Court of Appeals' decision in Pasley v. American Underwriters, 433 N.E.2d 838 (Ind. Ct. App. 1982), which disallowed a tort claim filed
within statute of limitations because the estate was not opened and a personal representative
was not appointed within one year of the decedent's death. Citing Estate of Kuzma v.
Peoples Trust & Savings Bank, 132 Ind. App. 176, 176 N.E.2d 134 (1961), which predated
current subsection (f), Pasley
held that tort claims are barred if the decedent's estate is not
opened and the suit is filed as a claim against the estate within one year of the date of
. Pasley concluded that this requirement was not changed by the addition
of subsection (f) to the statute. Pasley, 433 N.E.2d at 840.
Pasley is inconsistent with several subsequent decisions of the Court of Appeals. Langston v. Estate of Cuppels by Miller, 471 N.E.2d 17 (Ind. Ct. App. 1984), involved an estate that was opened, but no tort suit was filed within the five month claim period. The court held that the plaintiff's tort claim filed within the two year statute of limitations was not barred by section 29-1-14-1, observing that subsection (f) limits the recovery to insurance proceeds if no claim is filed within the five month limit. Id. at 20; see also Serban v. Halsey, 533 N.E.2d 162 (Ind. Ct. App. 1989) (in action for insurance proceeds claimant does not need to comply with subsection (d) requiring filing within one year); Shearer v. Pla-Boy, Inc., 538 N.E.2d 247 (Ind. Ct. App. 1989) (claim timely where tort action filed, estate opened and personal representative appointed after statute of limitations expired but within 18 months of death of party pursuant to Indiana Code § 34-1-2-7). In each of these decisions either the decedent's estate was open at the time the tort statute of limitations expired or another rule of procedure tolled the statute of limitations. None dealt with the facts presented in this case, where the tort action was filed within the statute of limitations but the
estate of the decedent was not opened until after the statute of limitations had expired.See footnote
Indiana Farmers contends that section 29-1-14-1(f) requires a tort claimant to open the decedent's estate before the statute of limitations has expired. In support of this view, Indiana Farmers observes that subsection (f) preserves claims against the estate for the tort limitations period. This, Indiana Farmers argues, implies that the estate must be opened within that period. Second, Indiana Farmers argues that the second sentence authorizes the opening or reopening of the estate only if it is within the tort limitations period. Both points reflect permissible readings of the statute. Neither however is persuasive in light of the overall statutory framework.
The statute is not a model of clarity. The first sentence of subsection (f) states that none of the requirements of section 29-1-14-1 shall affect or prevent the enforcement of a claim for injury . . . within the period of the statute of limitations. The third sentence limits claims against estate assets to those filed within five months of the period found in subsection (a). The purpose of the five month requirement is to permit the administrator to know the assets and potential liabilities of the estate and facilitate prompt payment of the claims to wrap up the estate. Permitting tort claims to pursue insurance proceeds, but not estate assets is fully consistent with these goals. So far, so good.
Code. Moreover, the second sentence of subsection (f) must be read in conjunction with the
first. The first sentence clearly states that nothing in this section shall affect or prevent the
enforcement of a claim for injury . . . . Subsection (f) is among the things in this section.
Accordingly we conclude that the only requirement that Indiana Code § 29-1-14-1(f) imposes
on a tort action seeking liability insurance proceeds is that the suit be filed within the tort
statute of limitations.
The Court of Appeals reached a different conclusion in this case and others on similar facts. Clark v. Estate of Slavens, 687 N.E.2d 246 (Ind. Ct. App. 1997), held that a plaintiff's tort action was barred because decedent's estate was not open within the two-year statute of limitations.
Inasmuch as Clark had no standing to open an estate for Decedent after the tort statue of limitations had expired, the Estate may not be afforded any legal recognition and, Clark's attempt to substitute the Estate for the one named in the complaint accomplished nothing. Thus, Clark's amended complaint did not relate back to the date of the filing of the original complaint under Ind. Trial Rule 15(C).
Id. at 250. Following Clark, the majority in this case held that [a]fter the tort statute of limitations had run, Richie was no longer an 'interested person' who had standing to open an estate under Indiana Code § 29-1-7-4. Indiana Farmers Mut. Ins. Co. v. Richie, 694 N.E.2d 1220, 1223 (Ind. Ct. App. 1998). We think Clark and the majority in this case were incorrect in imposing an interested person requirement. Rather, it appears to us that subsection (f) authorizes a suit against a special representative by a tort claimant independently of any interested person requirement that is applicable to persons seeking to open a decedent's estate under the Probate Code.
the trap in which Indiana Farmers contends Richie finds himself.
Next, whether the representative is appointed before or after the tort statute of limitations expires seems to have no practical consequence. The opening of the estate so as to bring the insurance policy into the estate is a formal requirement because the insurance company needs a representative of the defendant to serve as a client. Whether this is done three months before the statute of limitations for tort actions expires or three months after is immaterial unless the insurance company can show some prejudice from the delay. Here we are directed to none. The insurance company obligated to defend this action had timely notice of the suit and has not claimed, much less proved, any prejudice from the amendment substituting the estate for the decedent.
In sum, in this case seeking recovery from liability insurance, we hold that Richie's failure to open Smith's estate within the tort statute of limitations is not fatal to his suit.
Indeed, its motion to intervene was filed less than one month after the
initial complaint and within the appearance time for a suit that would unquestionably have
been timely if Smith had survived. Indiana Farmers had notice of the action, supporting the
trial court's finding that there is no prejudice. Accordingly, there was no abuse of discretion
by the trial court in permitting the amendment of the complaint.
B. Relation Back
Because Richie's amended complaint was filed after the statute of limitations had expired on his tort action, the amended complaint must relate back to the date of the original filing if it is to survive. Trial Rule 15(C) states: whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. The trial court found that Richie's amended complaint does relate back to [the] original filing as contemplated by T.R. 15. We agree. Richie's amended complaint sets forth the same cause of action as the first complaint and plainly arises out of the conduct, transaction, or occurrence of the original complaint.
Indiana Farmers points to the second sentence of Rule 15(C) and asserts that Richie's amendment does not relate back because the special administrator of Smith's estate neither received notice of the action nor knew of the action within the statute of limitations. This is of course true, because the special representative was appointed only after the two year tort statute of limitations had run. Indiana Trial Rule 15(C) states:
[a]n amendment changing the party against whom a claim is asserted relates back if
it arose out of the conduct, transaction, or occurrence set forth in the original pleading
and within the statute of limitations, the party to be brought in by amendment:
(1) has received such notice of the institution of the action that [the party] will not be prejudiced in maintaining [a] defense on the merits; and
(2) knew or should have known that but for the mistake concerning the identity of the proper party, the action would have been brought against [the party].
The notice and knowledge test found in Trial Rule 15(C) applies only where the party offers
[a]n amendment changing the party against whom a claim is asserted . . . . The word
changing must be given a sensible and practical construction. 6A Wright et al.,
Federal Practice and Procedure § 1498, at 128 (2d ed. 1990) (dealing with identical
language in the federal counterpart to T.R. 15)
. Richie's amendment does not seek to add,
subtract or otherwise change the party against whom the claim is asserted. As explained
in Part I, in order to assert a claim against the assets of Smith's estate (other than Smith's
claim to indemnity from Indiana Farmers under the automobile policy) the claim must be
filed within five months after notice to creditors of the estate, and all claims are barred if the
estate is not opened within one year after death. When this suit was filed both time periods
had expired and only the insurance policy could respond to the claim. That remained true
when the amendment changed the designation of the defendant to the Estate of Leanne M.
Smith from Leanne M. Smith (deceased). This changes the denomination, but not the
substance of the party sued.
Indiana Farmers argues that only Smith's estate is legally capable of being sued and that Richie's suit against Leanne Smith, deceased was a legal nullity. It asserts that his amended complaint naming Smith's estate and its special representative changes the party
against whom the claim is asserted. This may be correct in some formal sense, but for the
reasons already given it has no substance. No one disputes the identity of the alleged
tortfeasor. And, although Richie must name Smith as the insured, the claim is, in reality,
against Indiana Farmers' liability insurance policy. If any prejudice to the defendant or the
insurer can be shown, the trial court has discretion to refuse the amendment. Here, however,
the trial court found none and that finding is not seriously challenged.
Finally, although there is no controlling Indiana precedent, Indiana Farmers correctly points to some decisions under Federal Rule 15(C) in support of its contention that the amended complaint does not relate back under Trial Rule 15(C).See footnote 4 However, Indiana Farmers neglects other federal decisions that hold that a complaint does relate back.See footnote 5 We agree that because the Indiana trial rules are based on federal rules, it is appropriate in some instances to look to federal decisions for guidance . Keith v. Mendus, 661 N.E.2d 26, 34 (Ind. Ct. App. 1996); Rickels v. Herr, 638 N.E.2d 1280, 1283 (Ind. Ct. App. 1994). Here, however, we find conflicting precedent.
Similarly, precedent from other states is not consistent. As the Supreme Court of
Alaska observed in deciding the same issue, some states allow substitution of the estate for
the decedent but others hold that a complaint filed against a deceased person does not invoke
the jurisdiction of the court. See Hamilton v. Blackman, 915 P.2d 1210, 1217 (Alaska 1996)
(collecting state and federal cases). For the reasons already given, we agree with the
decisions that have permitted a plaintiff to amend to substitute the estate for the decedent.
The fundamental purpose of rule 15(C) -- fairness to the incoming defendant -- is met where,
as in this case, the suit seeks only insurance proceeds and the insurance company had actual
notice and knowledge of the suit. Id. at 1218; see also 6A Wright et al., Federal
Practice and Procedure § 1498, at 106 (2d ed. 1990) (allowing amendments changing
parties to relate back prevents claim from being defeated on a technical basis when it
should have been decided on its merits).
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