Thursday, August 13, 2020

Consent Of The Deceased

The New Jersey Appellate Division concludes that a lawsuit must be dismissed

Because the timeline is everything in this case, we start there. In the course of picking up her son-in-law after surgery in September 2016, the decedent, Carolyn Repko, fell on the front steps at Lourdes, fracturing her nose and receiving a cut over her eye, as well as several other injuries. Three days later, she retained counsel to file suit on her behalf.

Repko died from unrelated causes in December 2017, fifteen months after her fall. Repko's counsel filed suit in her name in September 2018, shortly before the running of the statute of limitations, not knowing she had died nine months earlier. After Repko's counsel granted Lourdes an extension, it filed an answer in November 2018 and promptly served discovery. When Repko did not respond to her counsel's letters, counsel searched public records in February 2019, and discovered Repko had died over a year before.

Counsel wrote to Repko's son in March and April 2019, eventually securing his agreement to continue the case. In September 2019, three years after the accident and twenty-one months after Repko's death, her son sent counsel a death certificate and Letters Testamentary. Repko's will had been admitted to probate in March 2018 and Letters Testamentary issued to her son at that time.

Counsel advised Lourdes of Repko's death in September 2019 and sought consent to amend the complaint. Lourdes refused, maintaining the complaint was a nullity because Repko was already many months dead when it was filed.

Repko's counsel, now representing her estate, moved to amend the complaint in October 2019. Lourdes cross-moved to dismiss the action. The judge acknowledged that a dead person has no legal standing to bring a lawsuit, but ruled 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 noted that if Repko had died "an hour after filing," Rule 4:9-3 would permit the amendment to relate back, yet "if death occurs an hour before filing," not allowing the amended pleading to relate back would mean "that's the end of the case." Ruling the result should not  "depend[] upon those types of fortuities," the judge granted the estate's motion to amend the complaint and denied Lourdes' motion to dismiss the action.

That was error

Because plaintiff's death prevented her from suing in her own behalf, the complaint filed in her name by her counsel was a nullity. As we have explained elsewhere, the existence of a juridical entity capable of suit is not merely a matter of form. "In any suit, . . . the plaintiff must subject itself to orders enforceable against itself, as well as availing itself of favorable orders. Without the presence of a plaintiff capable of both suing and being sued, relief cannot be afforded." Options v. Lawson, 287 N.J. Super. 209, 221 (App. Div. 1996).

Given the complaint Repko's counsel filed nine months after her death was ineffective "to set [the] judicial machinery in motion," Eder Bros., 880 A.2d at 143, there was nothing for the estate's complaint to "relate back" to...

Because the complaint filed in Repko's name by her counsel nine months after her death was ineffective to invoke the court's authority to resolve the claim, 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, we reverse the denial of Lourdes' motion to dismiss the complaint as barred by the statute of limitations and remand for entry of an order dismissing the complaint with prejudice.


Although not addressed by the parties, we question counsel's ability to file suit on Repko's behalf following her death. The attorney-client relationship ordinarily terminates on the client's death. Counsel claims Repko signed a retainer agreement, but he has not made it a part of the record. He has not asserted it empowered him to institute suit after Repko's death (citations omitted).

(Mike Frisch)

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