[WSBAPT] Creditor "auto accident" or malpractice claims

Thu Feb 14 13:01:32 PST 2019

I have been following this thread and there has been some discussion of
reopening a probate.
Would anyone be willing to share a sample form of a petition to reopen a
probate?
Many thanks.

CARL LLOYD GAY  

what counts in life is what we do for others

GREENAWAY, GAY, MEDINA & MYERS
Attorneys and Counselors at Law                     
734 East First Street       Suite A
Port Angeles, Washington   98362
Email                      carl at greenawaylawfirm.com
Telephone               (360) 452-3323

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-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com
[mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Dalynne Singleton
Sent: Thursday, February 14, 2019 12:38 PM
To: WSBA Probate & Trust Listserv
Subject: [WSBAPT] Creditor "auto accident" or malpractice claims

Look specifically at RCW 11.40.060.  I have dealt with litigation of many
deceased plaintiff and defendant cases involving policies of insurance which
fall into the more than 2 years since death (thus barring most creditor
claims) but before the 3 years statute of limitations on claims.  There is
insurance to cover the claims and there is caselaw which supports the fact
that the creditor is allowed to make a claim against insurance even if that
creditor has not made an actual creditor's claim against the estate during
the limited 4 month period (if published notice) - especially since this
creditor is reasonably known.  For instance, say you are involved in a motor
vehicle collision and you are at fault.  Then, you die.  

Usually, even if your probate is filed, your PR does not give notice to the
person you injured in the collision by sending the notice to creditors.
Your insurer knows you were in the collision if you reported the collision
and opened a claim.  Just as the attorney posted in her inquiry - the
insurer knows the claim is there and the spouse was probably injured but has
not paid on the claim which has not been fully litigated.  The statute has
not fully run on that claim to be litigated.  BUT, for the claim to be made
and litigated, the PR will be named as the defendant in the tort litigation.
If she closes the estate and discharges the PR, the estate will need to be
re-opened a PR appointed in order for the tort litigation to be filed and
the properly named defendant served.  I've had this happen.  Sometimes, the
PR steps up and is re-named; sometimes doesn't want to deal with it and
allows someone else to serve because the insurer then hires D counsel to
defend the claim for the PR/decedent.

I have not had to deal with a malpractice claim but if there is malpractice
insurance to cover to the claim, then the answer is yes, the statute of
limitations on the malpractice claim would apply and would not be shortened
pursuant to RCW 11.40.060.

RCW 11.40.060
Claims involving liability or casualty insurance-Limitations-Exceptions to
time limits.
The time limitations for presenting claims under this chapter do not accrue
to the benefit of any liability or casualty insurer. Claims against the
decedent or the decedent's marital community that can be fully satisfied by
applicable insurance coverage or proceeds need not be presented within the
time limitation of RCW 11.40.051, but the amount of recovery cannot exceed
the amount of the insurance. The claims may at any time be presented as
provided in RCW 11.40.070, subject to the otherwise relevant statutes of
limitations, and do not constitute a cloud, lien, or encumbrance upon the
title to the decedent's probate or nonprobate assets nor delay or prevent
the conclusion of probate proceedings or the transfer or distribution of
assets of the estate. This section does not serve to extend any otherwise
relevant statutes of limitations.

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com

LICENSED IN WASHINGTON AND OREGON
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-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Paul Neumiller
Sent: Thursday, February 14, 2019 12:23 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor "auto accident"

Hmmm.  This concerns me.  I have always told my wife that if I die while
still practicing law, that she should probate my Will in order to shorten
any possible legal malpractice claims to the probate period (though I have
never been sued for legal malpractice and I carry insurance).  Your advice
seems to indicate that a tort SOL will continue to run even after a PR gives
a creditor's notice and published notice?  Are you saying that even if my
wife probates my Will and publishes all of the proper notices, that a client
can still bring a malpractice lawsuit after the running of the four months
but before the legal malpractice SOL runs?  Or, am I misunderstanding your
statements?

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-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Dalynne Singleton
Sent: Thursday, February 14, 2019 9:41 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Creditor "auto accident"

The spouse has the tort SOL time limit to make the claim against the estate
liability insurance for the decedent.  If the claim was made, not sure why
the insurer isn't paying the claim.  If they are not paying and litigation
is filed, the PR will have to be named as the defendant in the litigation.
If you close the estate, it will have to be re-opened in order for the tort
litigation to continue.  It seems if the insurer agrees that the claim is
payable and the claim has been made, the PR should be pushing the insurer to
do its duty to pay/defend the claim.  

Dalynne Singleton

Gourley Law Group
Snohomish Escrow
The Exchange Connection
1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.329.4079
360.568.8092  fax
dalynne at glgmail.com

LICENSED IN WASHINGTON AND OREGON
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.

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Kristina Driessen
Sent: Thursday, February 14, 2019 7:34 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Creditor "auto accident"

Good Morning

I have a probate where the decedent was in an accident prior to passing.
The accident was arguably the decedents fault. The other person in the
accident and the spouse brought forth a claim to the auto insurance.  The
victim has been paid [prior to decedent passing] The spouse claim is still
out there.  The insurance believes the insurance should cover it.

We have both published and sent an actual notice to creditors to the person.
No response during the 4 months.  The estate is in a position to be closed,
but I am not sure what else needs to be done? Do we have to wait out the
statute of limitations?

Kristina A. Driessen
"A" Street Legal Services, Inc. P.S
Attorneys at Law
16 A Street SE
Auburn, WA. 98002
(253) 939-0811
(253) 939-0471 fax
astreetlegalservices.com
kristina at rdattys.comcastbiz.net

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