A plaintiff recently received a painful reminder from the Oregon Court of Appeals that one cannot sue a deceased person – you have to name the personal representative for the estate.
After being badly injured in a car accident, the plaintiff sued the other driver, but when she filed the lawsuit she was unaware of one critical detail: The driver had already passed away.
It is well established under Oregon law that you cannot sue the deceased. Consequently, when the plaintiff discovered her mistake, she amended her petition and named the driver’s estate and the personal representative of that estate as defendants. The estate argued the amended complaint should be dismissed because it was filed after the two year statute of limitations period had expired.
The Oregon Rules of Civil Procedure (ORCP) allow for the late filing of an amended complaint, but only under certain circumstances. Under ORCP 23C, a party may amend a complaint if the claims in both the original complaint and the amended complaint arise out of the same “conduct, transaction, or occurrence.” When the amendment seeks to assert a claim against a new party, however, the rule imposes additional requirements: under those circumstances, the new party must have notice of the original complaint, and must know that, “but for a mistake concerning the identity of the proper party,” the new party would have been the subject of the original complaint.
Plaintiff argued she did not “change the party” against whom she was filing suit; therefore, the additional requirements imposed by ORCP 23C should not apply. The Court of Appeals disagreed: “When a plaintiff sues a person who has died, rather than the personal representative of the decedent’s estate, the plaintiff had chosen the wrong person to sue. She has not merely misnamed the correct defendant.” The court explained that the representative of an estate is a “distinct legal entity” from the person who has died.
