[WSBAPT] Rejection of Claim and Commencement of Action; RCW 11.40.100
Dalynne Singleton
dalynne at singletonjorgensen.com
Fri Aug 29 11:03:03 PDT 2014
In the situation where the probate is opened and the creditor’s claim
served, why not reject it on the basis of insurance coverage in an amount
to cover the suit? That way, the claims are now limited to the insurance
policy limits.
Dalynne Singleton
<http://www.singletonjorgensen.com/>
1541 SE Piperberry Way #105
Port Orchard, WA 98366
Licensed in Washington and Oregon
Phone: 360-329-4079
Fax: 360-443-1259
E-mail: dalynne at singletonjorgensen.com
Web: www.singletonjorgensen.com <http://www.singletonjorgensen.com/>
P Please consider the environment before printing this email
IMPORTANT/CONFIDENTIAL: This e-mail message (and any attachments
accompanying it) may contain confidential information, including
information protected by attorney-client privilege. The information is
intended only for the use of the intended recipient(s). Delivery of this
message to anyone other than the intended recipient(s) is not intended to
waive any privilege or otherwise detract from the confidentiality of the
message. If you are not the intended recipient, or if this message has
been addressed to you in error, do not read, disclose, reproduce,
distribute, disseminate or otherwise use this transmission, rather, please
promptly notify the sender by reply e-mail, and then destroy all copies of
the message and its attachments, if any.
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of John J. Sullivan
Sent: Thursday, August 28, 2014 10:51 PM
To: wsbapt at lists.wsbarppt.com
Subject: Re: [WSBAPT] Rejection of Claim and Commencement of Action; RCW
11.40.100
I have a similar situation.
Personal injury lawsuit pending against person who then dies. Probate
opened and PR substituted and lawsuit goes forward. Then plaintiff files
creditor claim in specified amount. Only asset is insurance coverage.
My inclination is not to respond on the quantum of damages because the
worst that can then happen is a lawsuit that is already pending. I figure
let the plaintiff and insurance defense attorney sort it out. Then we have
either a settlement or judgement and the creditor claim is largely
irrelevant.
John Sullivan.
Sent from my iPhone
On Aug 28, 2014, at 9:33 PM, Eric Nelsen <Eric at sayrelawoffices.com> wrote:
I haven't encountered this situation but have seen some case law on it.
The issue seems to be mainly, did the Estate have a chance to deal with
the claim as part of the creditor process, before being embroiled in a
lawsuit. If plaintiff jumped the gun and tried to commence the lawsuit
before the creditor claim, the lawsuit might be dismissed as premature.
See Johnston v. Van Houck, 150 Wn. App. 894 (2009).
Something's not clear to me on the facts, though--how did client file and
serve a lawsuit against the Estate before the Estate administration was
commenced? I think how the defendant(s) is designated in that suit might
have some bearing.
Leaving that issue aside, though, I don't think the LA court action is
sufficient, because it was filed before the creditor claim. See Johnston.
I would suggest doing an independent analysis on where is the proper
venue, then file a new action in that venue, even if it's still LA; and
then either move to consolidate or, once the new action is properly
joined, dismiss the LA action without prejudice.
Alternatively, if the sequence of events was: (1) client files LA lawsuit,
(2) client files creditor claim in WA, (3) PR rejects creditor claim, and
(4) client serves the LA lawsuit on the PR, then maybe the Johnston
priorities are satisfied, because the PR wasn't in the lawsuit until after
the creditor claim was filed and rejected. But I don't know if I'd stake
my malpractice insurance on that analysis.
Other thoughts:
If there is LA real property, I assume there'd need to be an ancillary
probate there. Is there another shot at getting the claim satisfied in LA,
outside the WA probate? Does the LA lawsuit perhaps meet the requirements
of LA law, and the debt could be satisfied from LA assets, without having
to deal with Washington? (But maybe rejection of the creditor claim here
would act as a bar to the LA lawsuit?) (I do question whether LA is the
proper jurisdiction at this point, but that's the state with laws based on
French civil law instead of English common law; its rules might be totally
different and you may be stuck with a conflict of laws problem.)
Does the LA suit truly name the Estate as defendant, or is it against the
"heirs and successors of X, deceased?" If against the heirs, maybe it's
not relevant at all to the creditor claim, and you definitely need a new
lawsuit against the Washington PR?
I wouldn't rely on the procedural deficiencies to defeat PR's notice of
rejection, if there is any opportunity to avoid that. Better to admit
actual notice of the rejection and file the suit well within 30 days of
the date the notice was mailed.
Beware Statute of Limitations problems on the underlying cause of action,
regardless of the creditor claim process. There's a decision recently in
Division II, Estate of Henington, that muddies the waters of our past
understanding--it may be that the lawsuit has to be both (1) filed after
the creditor claim and (2) filed before expiration of the regular Statute
of Limitations.
My $0.02.
Sincerely,
Eric
Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1320 University St
Seattle WA 98101-2837
phone 206-625-0092
fax 206-625-9040
From: wsbapt-owner at lists.wsbarppt.com
[mailto:wsbapt-owner at lists.wsbarppt.com] On Behalf Of Samuel M. Meyler
Sent: Thursday, August 28, 2014 10:41 AM
To: wsbapt at LISTSERV.NETHELPS.COM
Subject: [WSBAPT] Rejection of Claim and Commencement of Action; RCW
11.40.100
Dear Listmates,
I’m looking for some input on this very adversarial matter that I am
dealing with.
Decedent was a resident of Louisiana and Decedent’s widow/Personal
Representative is still a resident of Louisiana. PR opened probate in
Washington because there was property here. PR failed to give my client
notice of the probate, even though PR was well aware of my client and PR
did not publish notice. Prior to receiving notice of the probate, my
client (who is a creditor of the Estate) brought an action in Louisiana
against the Estate. Once my client learned of the probate in Washington,
a Creditor’s Claim was filed and the actual Petition from the Louisiana
action was attached to the Creditor’s Claim.
PR has now filed a Rejection of the Claim. I will add that: a) PR sent
the Rejection by first-class mail rather than certified or personal
service, b) PR has failed to file an affidavit of service, and c) PR
failed to “advise the claimant that the claimant must bring suit in the
proper court against the personal representative within thirty days after
notification of rejection or the claim will be forever barred…” all of
which is required by RCW 11.40.100.
My questions are:
1) Is creditor still required to bring an action within 30 days even
though the Rejection of the Claim does not comply with the statute?
2) If so, does the pending Louisiana action satisfy the requirement
that Claimant bring suit in the proper court within thirty days?
3) If the Louisiana action does satisfy the requirement, should an
additional notice of some sort be filed with the King County Superior
Court?
I would greatly appreciate any input on these questions and any additional
thoughts or tips that might be helpful.
Samuel M. Meyler
Attorney at Law
Mail: P.O. Box 777 | Redmond, WA 98073-0777
Location: 8201 164th Ave. NE, Suite 200 | Redmond, WA 98052
Tel: 425.881.3680 | Fax: 425.881.1457 | Email: samuel at meylerlegal.com
NOTICE:
This electronic message contains information which may be Confidential or
Privileged and constitutes an electronic communication within the meaning
of the Electronic Communications Privacy Act 18 USC 2510. The information
is intended to be for the use of the individual or entity named above. If
you are not the intended recipient, please be aware that any disclosure,
copying, distribution or use of the contents of this information is
prohibited. If you received this transmission in error, please notify the
sender and delete the copy you received together with any attachments.
Thank you.
=======================
- To contact the list administrator, send a message to:
webmaster at wsbarppt.com
- To unsubscribe, send a new email addressed to: imail at lists.wsbarppt.com,
with the following in the body of the message: unsubscribe wsbapt - OR -
send a message to webmaster at wsbarppt.com asking that you be removed from
the wsbapt list.
Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents.
=======================
- To contact the list administrator, send a message to:
webmaster at wsbarppt.com
- To unsubscribe, send a new email addressed to: imail at lists.wsbarppt.com,
with the following in the body of the message: unsubscribe wsbapt - OR -
send a message to webmaster at wsbarppt.com asking that you be removed from
the wsbapt list.
Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents.
=======================
- To contact the list administrator, send a message to:
webmaster at wsbarppt.com
- To unsubscribe, send a new email addressed to: imail at lists.wsbarppt.com,
with the following in the body of the message: unsubscribe wsbapt - OR -
send a message to webmaster at wsbarppt.com asking that you be removed from
the wsbapt list.
Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents.
_____
<http://www.avast.com/>
This email is free from viruses and malware because avast! Antivirus
<http://www.avast.com/> protection is active.
=======================
- To contact the list administrator, send a message to:
webmaster at wsbarppt.com
- To unsubscribe, send a new email addressed to: imail at lists.wsbarppt.com,
with the following in the body of the message: unsubscribe wsbapt - OR -
send a message to webmaster at wsbarppt.com asking that you be removed from
the wsbapt list.
Information provided on this list should not be considered legal advice.
As with all lists - let the reader beware! No warranties or
representations are made as to the accuracy of any information provided.
All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
Bar Association nor its officers or agents.
-------------- next part --------------
A non-text attachment was scrubbed...
Name: winmail.dat
Type: application/ms-tnef
Size: 26165 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbapt/attachments/20140829/d16270ff/winmail.dat>
More information about the WSBAPT
mailing list