The death of a defendant before a lawsuit is filed or during the pendency of a lawsuit creates very complex issues and is procedurally taxing for any plaintiff lawyer. In fact, the risk of a plaintiff's claim being barred is substantial given the strict rules that must be followed pursuant to both the Code of Civil Procedure and the Probate Code.

The first thing a Plaintiff should do when he or she finds out a defendant is dead is determine whether he or she is seeking damages within the decedent's insurance policy limits. Probate Code sections 550 through 554 governs claims against a decedent within insurance policy limits whereas California Code of Civil Procedure §§336.2, 337.40 through 377.42, and Probate Code §9390 governs claims for damages in excess of a decedent's insurance policy.

If a Plaintiff is limiting his or her cause of action to the insurance policy limits, then a complaint may be filed within one year after the expiration of the applicable limitations period so long as the defendant/decedent died within the applicable limitation period. Prob. Code. §550, 551. For example, if John Doe gets hit by a vehicle on Jan. 1, 2010 and the driver dies in September 2011, John Doe has until Jan. 1, 2013 (3 years) to file a tort action against the decedent to recover damages within the decedent's insurance policy limits. Probate Code 550 et seq. intends to protect plaintiffs who are seeking damages that are covered by the decedent's insurance policy and the plaintiff may not know at the time he or she files an action that the defendant was deceased, thus providing them with a one year “grace period” to file a lawsuit under this statutory scheme. This limitation is further set out in Probate Code §554 which states that “either the damages sought in an action under this chapter shall be within the limits and coverage of the insurance, or recovery of damages outside the limits or coverage of the insurance shall be waived. A judgement in favor of the Plaintiff in this action is enforceable only from the insurance coverage and not against property in the estate.” Prob. Code. §554.

However, if the Plaintiff wants to sue the decedent for damages beyond the decedent's insurance policy limits, then the Plaintiff has only one year from the time of the decedent's death to bring an action or the claims are forever barred. Code Civ. Proc. §336.2. This harsh rule does not consider the limitations period of the underlying action or whether the Plaintiff knew the defendant was dead. Using the example above, Plaintiff John Doe would only have until September 2012 (one year from the defendant's death) to bring his tort claim against the driver or his action would be barred. This is true even though the applicable tort limitations period (two years) would otherwise allow him to bring an action until January 2012. The purpose of the one-year limitations period applicable to claims of creditors against a decedent's estate is to protect decedents' estates from creditors' stale claims. See Stoltenberg v. Newman (App. 2 Dist. 2009) 179 Cal.App.4th 287, rehearing denied, review denied, on subsequent appeal 215 Cal.App.4th 1225. Thus, it rightfully promotes finality in legal affairs associated with death.

It must also be noted that when you sue a decedent to recover damages in excess of the policy limit, the Plaintiff must comply with specific creditor claim procedures prior to filing the lawsuit. See Code Civ. Proc. §377.40 et seq; Prob. Code §9351, 552, 9390(c). Plaintiffs must file a creditor's claim against the decedent's estate in probate court within either four months from the date that the letters of administration are first issued to a personal representative or 60 days after notice of administration is given to the creditor—whichever is later. Prob. Code sections 9100 et seq., The personal representative of the decedent's estate has 30 days to accept to pay or reject the claim. Prob. Code §9256. If 30 days goes by without any response from the estate's personal representative, the creditor's claim is deemed rejected. Ibid. Once the claim is rejected, the Plaintiff must file the lawsuit within three months of the rejection or the suit will be time barred. Prob. Code §§9352, 9353, 9371. It is important to note that once the creditor's claim is filed, the one-year time bar pursuant to Code of Civil Procedure §336.2 is tolled. Nevertheless, the creditor's claim must be filed within one year of the decedent's death or the claim is barred entirely.

If probate for the decedent's estate has not been opened, the Plaintiff may open probate on his or her own behalf as a creditor with the intent to reject his or her own creditor's claim. See Prob. Code §800 (allowing any interested person to commence probate proceedings for administration); Prob. Code §48 (including a creditor in the definition of “interested person”). From there, there are additional procedural hurdles the plaintiff must go through to be able to attach or marshal the decedent's assets to satisfy the creditor's claim, including filing a petition to be appointed special or general administrator of the decedent's estate and filing several unfamiliar judicial council forms.

Although this procedure may seem daunting, especially for plaintiff attorneys unfamiliar with probate, if done correctly a plaintiff will still get his day in court. In sum, it is paramount that Plaintiffs' counsel be familiar with these rules or he or she risks forfeiting his client's otherwise valid cause of action.

Brian S. Kabateck is a consumer rights attorney and founder of Kabateck LLP in Los Angeles. He represents plaintiffs in personal injury lawsuits, mass torts litigation, class actions, insurance bad faith lawsuits, insurance litigation and commercial contingency litigation.

Stephanie Charlin is an associate with Kabateck LLP with an expertise in consumer class actions, personal injury, product liability actions, wrongful death and insurance bad faith claims.