The California Litigator

November 8, 2010

By Barbara Haubrich-Hass, ACP/CAS

What do you do  if a defendant dies after the incident giving rise to a lawsuit?  If the defendant had liability insurance, you are in luck.  An action can be commenced or continued in order to establish liability of a decedent if the decedent was protected by insurance.  It is not necessary to name the decedent’s personal representative or successor in interest.  [Probate Code § 550] 

The damages, however, being sought must be within the policy limits of the insurance coverage, or the recovery of damages over the insurance coverage shall be waived.  [Probate Code § 554(a)]   This requirement does not apply if (1) The personal representative was joined as a party to the action; and (2) The plaintiff filed a Claim in compliance with Probate Code § 9390.

Party Name:  If the Complaint has not been filed prior to the death of the defendant, a plaintiff should name the deceased defendant as, “Estate of (name of decedent), Deceased.”  [Probate Code § 552(a)]  If the Complaint has already been filed, the court, on motion, may order the appointment and substitution of a personal representative as the defendant.  [Probate Code § 552(b)]

Service of Complaint:  The Summons and Complaint will need to be served on a person designated in writing by the insurer.  [Probate Code § 552(a)] 

How do you obtain the name of the designated person?  I write to the insurance company and ask them.  Here is a sample letter.  As with all samples, always review all sample forms with your supervising attorney prior to use.

* * * * * * * * * * * *

 SAMPLE LETTER TO INSURER RE DESIGNATED PERSON FOR SERVICE OF SUMMONS

Note:  Always review all samples with your supervising attorney prior to use.

 [Date]

 

[Name of Adjuster]

[Name of Insurance Company]

[Address]

 

          In re:  Our Client:            [Name of Client]

                Your Insured:             [Name of Deceased], deceased

                   Policy No:              [Policy #]

                   Claim No:               [Claim #]

                   D/Loss:                  [Date of Incident]

Dear Sir or Madam:

This office represents [Name of Plaintiff] for injuries and damages as a result of a [brief description of incident] that occurred on [date of incident].  Your insured, [name of deceased] died on [date of death].  Therefore, we filed a lawsuit naming the Estate of [name of decedent], Deceased, pursuant to Probate Code § 550, et seq.

Under the provisions of Probate Code § 552(a), please indicate, in writing, at the bottom of this correspondence the name of the designated agent for service of the Summons and Complaint in this matter.  I have enclosed a self-addressed envelope for your convenience. 

Your prompt attention to this matter is appreciated. 

                                                Very truly yours,

 

                                                [Name of Attorney]

Pursuant to Probate Code § 552(a), the designated person for service of the Summons and Complaint for the Estate of [name of deceased], Deceased, is:

Name:          __________________________________________

Address:       __________________________________________

                     __________________________________________

 


 

Do you want to use this article? You can so long as you include this entire blurb with it: "Barbara Haubrich-Hass, The California Litigator, publishes an e-zine that delivers simple discussions and strategies for the California civil litigation professional. Barbara’s discussions focus on common paralegal and law office tasks, such as pre-litigation document gathering, document preparation, filing rules, law and motion, discovery, arbitration, trial, deadline calculation, and post-trial procedures. More information is available at http://www.thecalifornialitigator.com

 ©Copyright 2010 All Rights Reserved

DISCLAIMER: Barbara Haubrich-Hass, ACP/CAS, is not an attorney. Any information derived from The California Litigator, and any other statements contained herein, are for information purposes only, and should not be construed as legal advice or a recommendation on a legal matter. The information from The California Litigator is not guaranteed to be correct, complete, or current. Barbara makes no warranty, express or implied, about the accuracy or reliability of the information provided within this e-zine/article, or to any other website to which this e-zine/article may be linked.

Add comment


Security code
Refresh