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.
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SAMPLE LETTER TO INSURER RE DESIGNATED PERSON FOR SERVICE OF SUMMONS
Note: Always review all samples with your supervising attorney prior to use.
[Name of Adjuster]
[Name of Insurance Company]
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:
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