[WSBAPT] Creditor "auto accident" or malpractice claims

Thu Feb 14 19:03:21 PST 2019

Kristina:

I just had a similar case last summer. Decedent has been in an accident with more than a few cars. Insurer was handling claims. I published and mailed specific notice to the others involved in the accident. 

My position is that the claims can continue against the insurance until the three year SOL expires, but that they cannot look to the estate for any deficiency not covered by the insurance after the four months runs. 

John J. Sullivan

Sent from my iPad

> On Feb 14, 2019, at 12:38 PM, Dalynne Singleton <dalynne at glgmail.com> wrote:
> 
> 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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