The Defendant Died: Now What?
Pursuing a civil action against a deceased tortfeasor presents multiple questions—some are easily resolved, others are less clear.
Tortfeasor: a person who commits a wrongful act (a tort) either intentionally or through negligence leading to legal liability.
Can you sue a deceased person’s estate?
The same statute that permits wrongful death actions, S.C. Code Ann. section 15-51-10, also permits a “cause of action [to] survive against [the] personal representative… in the event of the death of the wrongdoer.” Section 62-3-703 similarly provides that a personal representative (PR) “has the same standing to sue and be sued… as his decedent had immediately before death.” So, you can sue the estate.
What about punitive damages?
This is also clear, but it takes a little more work to find the answer.
Punitive damages are awarded in addition to actual damages. They’re meant to punish the defendant for outrageous conduct or to deter similar future conduct.
Punitive damages are also known as exemplary damages, vindictive damages or moral damages.
Compensatory Damages versus Punitive Damages
Compensatory damages are meant to compensate the plaintiff (the person suing) for his or her losses.
Punitive damages are an additional amount that’s awarded over and above compensatory damages. They are meant to punish the wrongdoer and deter others from similar behavior in the future.
As a starting point, if the defendant is dead, the phrase “exemplary damages” is more fitting and equally as accurate. See Pickens v. S.C. & G.R. Co., 54 S.C.498, _, 32 S.E. 567, 570 (1899) (noting “exemplary damages” are also called “punitive or vindictive damages”).
Asking for “punitive damages” opens the door to a defense argument of “how are you going to punish an estate”? South Carolina helpfully recognizes three distinct purposes for these excess damages: punishment, vindication and deterrence. Clark v. Cantrell, 339 S.C. 369, 378-79, 529 S.E.2d 506, 533 (2000). And each purpose is independently sufficient to justify the imposition of a punitive award. See Hull v. Seaboard Air line Ry., 76 S.C. 278, _, 57 S.C. 28, 29 (1907) (holding the court erred in instructing the jury not to award punitive damages when the plaintiff is deceased and is unable to be vindicated, for the deterrent effect is still possible).
Thus, punitive or exemplary damages are recoverable against an estate. You just must convince a jury to award them against the PR, who may be the mother of the deceased.
Depending on your facts, doing so may require some finesse, but you can confidently walk into a partial summary judgment hearing on the issue.
Where things become less straightforward, at least for those like me who rarely (never) practice in probate, is the trek into Title 62 that often is required when your tortfeasor dies. Here I find answers, or at least guidance, to the tricky questions that seem to appear every time I pursue a claim against an estate.
First, does the death affect the statute of limitations for your claims?
Section 62-3-802(a) provides that “no claim which was barred by any statute of limitations at the time of the decedent’s death shall be allowed or paid.” There are no surprises here.
Subsection b, however, goes on to state, “the running of any statute of limitations measured from some other event than death or the giving of notice to creditors is suspended during the eight months following the decedent’s death but resumes thereafter as to claims not barred pursuant to the sections which follow.”
This suspension IS unlikely to affect personal injury cases in any major way but does provide some help when a defendant dies shortly before the statute of limitations expires.
But, while Title 62 may offer limited reprieve regarding the statute of limitations for the first eight months, it quickly shortens your expected three-year window with a nonclaim statute.
Section 62-3-802 provides all claims against a decedent’s estate that arose before the death of the decedent, including those founded in tort, are “barred against the estate” unless presented within the earlier of one year after the decedent’s death, sixty days after the creditor is given actual notice pursuant to section 62-3-801(b), or eight months following notice to creditors via publication pursuant to section 62-3-801(a).
So, not only can the death of your defendant significantly impact the time for presenting a claim, the time for doing so is not always fixed.
If you or your client are provided direct notice of the creditors’ claim period, you should assert your claim within that sixty-day period as provided in the notice.
However, if the PR for the estate begins publishing the notice shortly after death, the claim period could end less than one year after the death of the tortfeasor. Even if the estate is reopened upon the discovery of additional assets, “no claim previously barred may be asserted in the subsequent administration: S.C. Code Ann. § 63-3-1008.
As we continue further into Title 62, however, the pendulum swings again on the statute of limitations or time for presenting claims.
Section 62-3-803(d) states, “Nothing in this section shall be construed as placing a limitation on the time for:… (2) to the limits of the insurance protection only, commencing a proceeding to establish liability of the decedent… for which he [or she] is protected by liability insurance.”
Essentially, the statute of limitations is paused for eight months, but any claim must be asserted against the estate within the period prescribed by section 62-3-801; a failure to do so limits the recovery to insurance coverage.
From that reading, I have several questions:
- If a suit is already filed and the defendant dies, must you still assert a claim as a creditor against the estate?
- If a claim is not asserted against the estate within the prescribed period, can you collect underinsured motorist coverage?
- What if the tortfeasor in a wreck is uninsured? Can you collect uninsured coverage?
- How does this affect a demand predicated upon Tyger River?
“UM and UIM are, of course, first-party coverages designed to protect the insured from the actions of under or uninsured tortfeasors.”
The suit having previously been filed prior to the death of the tortfeasor is likely of no consequence. The limitation on claims discussed in Title 62 is more of a nonclaim provision than a statute of limitations á la section 15-3-530.
Thus, a plaintiff suing a later deceased tortfeasor is but a creditor of the estate after death, even if the tort action was filed before the tortfeasor died. See Moultis v. Degen 279 S.C. 1, 6, 301 S.E.2d 554, 557(1983). This scenario, thankfully, is unlikely to cause much heartburn. Presumably, the attorney representing the defendant would acknowledge the death promptly, the caption would be altered, and the PR would be substituted as the defendant. During this process, the plaintiff would simply assert a claim against the estate pursuant to section 62-3-804. Any legal proceeding that was filed against the decedent prior to her death, in which she was a necessary party, is suspended until a PR is appointed. S.C. Code Ann. § 63-3-804 (7)(a).
Whether underinsured (UIM) or uninsured (UM) coverage can be collected when a claim is not timely presented against the estate is not patently clear. I could argue for either the plaintiff or the carrier.
From the insurance carrier’s position, Section 62-3-803(d)(2) plainly makes an exception only when the decedent is protected by liability coverage and only to the limits of the coverage.
If the legislature intended this section to extend to first-party coverages, it would have so specified or used a broader phraseology. Instead, the legislature specified it only applies when there is liability insurance. Likewise, Section 38-77-150 does not state that coverage applies for damages caused by an uninsured motorist. It applies only to the sums the insured is “legally entitled to recover from the owner or operator of an uninsured vehicle.”
In the absence of a creditor’s claim, the insured is only legally entitled to collect when there exists liability coverage—and only up to those limits. Further, allowing a claim for UM benefits where the plaintiff has not asserted a creditor’s claim against the estate will prejudice the UM carrier, as it would lose its subrogation rights provided by Section 38-77-190.
For the plaintiff, the argument is essentially that allowance of the claim is consistent with the spirit of Section 62-3-803 and Sections 38-77-150 to 160.
UM and UIM are, of course, first-party coverages designed to protect the insured from the actions of underinsured or uninsured tortfeasors. Payment of underinsured motorist coverage in no way affects the estate, and the carrier’s position is not affected by the death of the tortfeasor. Section 62-3-803 makes an exception for insurance because doing so does not affect the estate. The purpose of the nonclaim statute is to permit the distribution of estate assets within a reasonable period and to prevent the clawback of distributed assets upon the presentation of a creditor’s claim years later.
Allowing recovery of UM or UIM benefits is consistent with the rationale of permitting claims when the deceased is protected by liability insurance. Further, Section 38-77-160 specifies UIM coverage applies when “damages are sustained in excess of the liability limits… or in excess of any damages cap or limitation imposed by statute.” (Emphasis added).
Section 62-3-803(d)(2) is but a limitation imposed by statute no different than the Tort Claims Act (TCA). There being a different result for UM and UIM based upon the phraseology of what is collectible is incongruent and cannot be the intention of the legislature.
The latter argument is likely the strongest and the position I would expect is most persuasive, but I would not consider it a guaranteed outcome.
Finally, Tyger River most likely loses any teeth our courts have not already pulled when a creditor’s claim is not asserted against the estate.
Like dealing with TCA defendants, the carrier is likely to recognize that its exposure is limited to the available coverage and will know its insured will suffer no harm in the event of an excess verdict.
What is less clear is whether a Rule 68, SCRCP, offer of judgment could function to increase any recovery beyond the limits of the coverage, and if so, whether the estate or the carrier is responsible for payment of the interest and costs.
If the estate must pay, doing so may require a clawback of disbursed assets. The carrier will argue it only must indemnify; if the estate is not responsible for the interest and costs, then neither is the carrier.
Thus, Rule 68, SCRCP, may, although I have no authority to support this proposition, lose its teeth to the extent it would entitle the plaintiff to a recovery in excess of the limits of the liability coverage.
Asserting a creditor’s claim is imperative if you are retained for insufficient time. A failure to do so certainly prevents recovery of a judgment from estate assets, arguably limits access to UM and UIM coverages, and likely removes the possibility of a bad faith claim after an excess verdict. Even if the estate is insolvent or the plaintiff has no desire to enforce a judgment against the estate, the case may be weaker if no creditor’s claim is presented.
So, what should be done when the defendant dies?
Aside from asserting a creditor’s claim, as the plaintiff’s lawyer, you will want to ensure the estate is opened and a PR is appointed.
As noted, in pending litigation, the matter is paused until a PR is appointed, and appointment of a PR is necessary for commencement of legal action against the estate. S.C. Code Ann. § 63-3-804 (6)-(7)(a). If no PR has been appointed, a creditor may petition for appointment of a PR forty-five days after death. See S.C. Code Ann. § 63-3-203 (a)(6); S.C. Code Ann. § 63-3-804(1)(b).
Likewise, an “interested person,” including “a creditor of the decedent’s estate [desiring] to institute any proceeding under Section 62-3-803” may informally file an application for appointment of a special administrator (“SA”). S.C. Code Ann. § 63-3-614. Absent narrow exceptions unlikely to affect tort cases, any “proper person” may serve as SA. S.C. Code Ann. § 63-3-615.
If the estate is properly closed when you are hired, the estate must be reopened to pursue tort claims.
As noted above, the recovery here will be limited to insurance proceeds, but if within the otherwise applicable statute of limitations, the claim may still be brought against the estate.
At the closing of the estate, the PR will most likely be discharged. Since no action may be commenced against the estate without a PR or SA, one must be appointed. Upon application, the court may reappoint a PR or SA for subsequent administration of the estate. S.C. Code Ann. § 62-3-1008. No claims previously barred may be asserted, but a claim up to the limits of insurance may be presented.
If the estate is closed while litigation is pending, your options depend on whether the plaintiff asserted a creditor’s claim.
If a claim was timely presented and estate assets are disbursed, Section 62-3-1004 provides liability for the distributee up to the value of the assets distributed to her. However, Section 62-3-1006 limits the clawback period to one year after the death of the decedent.
Section 62-3-909 likewise provides that a distributee is liable to return the property. Based on my very limited knowledge of Title 62, I am unaware of any time limit on the liability prescribed by the latter section. The PR may also be personally liable in certain circumstances. See e.g., S.C. Code Ann. § 63-3-807.
However, assuming the estate closing did not prejudice your client’s access to estate assets, or no claim was made within the statutory period, if the estate is closed, it must simply be reopened for subsequent administration, and a PR or SA must be appointed. The case may thereafter proceed.
Handling cases with a deceased defendant presents unusual and often confusing—at least for me—issues that are otherwise unseen in litigating tort cases.
Title 62, however, is organized in a logical manner, and while I often do not know the answers to my questions offhand—and sometimes do not even know what questions to ask—the answers are often spelled out plainly in the code.