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DEATH OF A PARTY
IN LITIGATION: WHAT HAPPENS TO THE ACTION?
INTRODUCTION:
Litigation often
lasts three to five years and even an arbitration can take over a year.
What happens if one of the parties dies? Is the case automatically
ended? Does it automatically stop (become stayed?) How is the case
altered, both legally and practically? Those are the questions for this
article.
CASE CONTINUES
A pending action
does not abate by reason of the death of a party if the cause of action
survives. California Code of Civil Procedure (CCP) Section 377.21.
All causes of action
survive death except as otherwise provided by statute CCP Sect. 377.20.
Automatic stays can
occur only when an action in another jurisdiction would so provide, such
as the filing of bankruptcy or a filing in Federal Court. In the case of
a death, in California, according to statute, death is not listed as one
of the grounds for an automatic stay.
From the point of
view of the Court, the case will continue even though the party is
deceased. It is up to the executor of the estate of the decedent to
bring the relevant motion before the Court to substitute into the
action. See our article on
Probate in California-The
Basics.
EFFECT OF DEATH
OF DAMAGES FOR THE DECEASED PARTY
As discussed, all
causes of action survive death except as otherwise provided by statute.
CCP Sect.377.20. However, the damages that may be awarded can be
radically altered. Elder abuse cases are the only cases where damages
are still recoverable for decedent’s pain and suffering. CCP Sect.
377.34. In other cases, the damages for pain and suffering are barred.
Further, no punitive
or exemplary damages are recoverable against a decedent’s estate. CCP
Sect. 377.42
ORDER FOR
SUBSTITUTION
The court may make
orders substituting the decedent’s personal representative or successor
in interest as plaintiff on claims belonging to the decedent. Or it may
appoint the successor in interest as a special administrator or guardian
ad litem on such claims. CCP Sect. 377.33.
On claims against
the decedent, the court may order the decedent’s personal representative
substituted as defendant or, to the extent, provided by statute, the
decedent’s successor in interest.
Procedure- an order
substituting decedent’s personal representative or successor in interest
may be obtained on motion. CCP Sect. 377.31. (If the person seeking to
be a personal representative is a successor in interest, they must
execute and file a declaration in statutory form. CCP Sect. 377.32.)
CONTINUANCE OF
TRIAL DATE
Death of a party
should under normal circumstances be good cause for granting a
continuance of a trial date. CRC 3.1332.
PRACTICAL
CONSIDERATIONS
Most cases depend on
testimony of the parties to establish the facts. Assuming videotaped
depositions were taken, a deceased party may still have his or her day
in court to “testify” but most depositions are not full presentation of
the evidence but merely a party being cross examined by the opposing
party. See our article on the
American System of Litigation.
The deceased party’s case will probably have to be proven by other means
of evidence and in cases in which credibility of a party is important,
the lack of the party to put the facts before a judge or jury can alter
the chances for winning significantly.
Thus, the case may
be harder to prove and the damages may be limited as described above.
While sympathy for the deceased party’s family may be possible, just as
often the jury will feel that the family members should not benefit from
the injuries personally suffered by a deceased party. Each case must be
carefully analyzed based on its unique facts.
If a party is ill or
very elderly, many lawyers will take proactive steps to assure that the
testimony will be available. They may video tape the full testimony,
making sure a judge and jury will be able to see the personality of the
party fully. They may alter the estate plan or the Trustee appointed so
as to allow effective and prompt transition to the surviving heirs to
proceed with the case. Or, knowing the chances of death, they may elect
to seek settlement before the other side realizes the changes occurring.
Additionally, a
trial date may be advanced if the court is convinced that it is
warranted due to the health or life expectancy of a party. This is
termed a motion for priority. This should be seriously considered by any
party worried about survival.
SUMMARY
Death of a party
does not result in an automatic stay of the proceedings. Local rules in
some courts, require additional filing requirements to retain the action
as active. But to assume that the case terminates or is stayed simply
because there is a death of a party is an error. Prompt affirmative
action must be taken by the representative of the decedent. |
