In re Estate of Ostler

• Decision Date: 11 December 2009
• Docket Number: No. 20080180.,20080180.
• Citation: In re Estate of Ostler, 227 P.3d 242, 2009 UT 82 (Utah 2009)
• Parties: In the Matter of the ESTATE OF Gary Wayne OSTLER, Deceased, Melissa Walker, on behalf of her Son, Adam Kunic Moses Walker, Plaintiff and Appellant, v. Douglas L. Stowell, as Personal Representative of the Estate of Gary Wayne Ostler, Defendant and Appellee.
• Court: Utah Supreme Court

227 P.3d 242

2009 UT 82

In the Matter of the ESTATE OF Gary Wayne OSTLER, DeceasedMelissa Walker, on behalf of her Son, Adam Kunic Moses Walker, Plaintiff and Appellant, v.Douglas L. Stowell, as Personal Representative of the Estate of Gary Wayne Ostler, Defendant and Appellee.

No. 20080180.

Supreme Court of Utah.

December 11, 2009.

Rehearing Denied March 17, 2010.

Moses Lebovits, Los Angeles, CA, Mary Jane Whisenant, Salt Lake City, for plaintiff.

Alan R. Andersen, James G. Swensen, Salt Lake City, for defendant.

WILKINS, Justice:

¶ 1Melissa Walker, on behalf of her minor child, brought a wrongful death claim against the estate of Gary Ostler, the pilot of the airplane in which the child's father was a passenger and died.The claim against the estate was brought nearly four years after the father's death, and more than three years after the expiration of the 90-day window for the filing of claims against the estate under the Utah Probate Code.The estate disallowed the claim, and Melissa filed a wrongful death action in the district court.On the motion of the estate, the district court dismissed the claim as barred by the Probate Code's limitation on the presentation of claims against an estate.We affirm.

BACKGROUND & PROCEDURAL HISTORY

¶ 2 On July 13, 2003, pilot Gary Wayne Ostler crashed his Cessna 401 airplane into the Pacific Ocean, killing himself and three of his five passengers, including his brother-in-law, Adam Woodruff Moses.Approximately two or three weeks after the crash, Adam's girlfriend, Melissa M. Walker(Melissa), learned she was pregnant with Adam's child.Paternity tests later confirmed that fact.

¶ 3 A probate estate (the Estate) was opened for decedent Ostler, and the personal representative first published notice to creditors on September 23, 2003.Under the Utah Probate Code, all creditor claims were to be filed within 90 days, or by December 23, 2003.The heirs of the other two deceased passengers filed wrongful death claims against the Estate within the 90-day period, but Melissa, on behalf of her unborn child, did not.Melissa's child, named Adam Kunic Moses Walker(Walker), was born on March 27, 2004.No claim was filed on the child's behalf until Melissa did so on April 16, 2007.

¶ 4 Walker alleges, and we accept for purposes of this appeal as true, that the following events occurred in the interim: Shortly after Walker's birth, Christa Moses Ostler(Christa), Ostler's widow and Adam's sister(thus Walker's aunt), told Melissa that the Estate had set aside $250,000 for Walker, part of which would be available to Melissa for child support and part to be placed in a trust fund available to Walker upon reaching the age of majority.This money was neither paid nor set aside.The Moses and Ostler families promised Melissa that they would give Walker his father's 1965 Ford Mustang Fastback when he turned 16.The family later informed Melissa of their intention to sell the car and give her the proceeds.When the car sold for $12,000, Melissa eventually received $700.In 2006, while working and going to school full-time, Melissa inquired about the status of the Estate and the distribution.Christa told her the Estate had not yet settled and advised her to quit school and take on a second full-time job in order to support Walker, which Melissa did.In January 2007, Melissa learned the Estate would not be directly distributing money to Walker, but that Christa promised to personally make the distribution, which she intended to do when Walker was eighteen.

¶ 5 In April 2007, Melissa filed a wrongful death claim against the Estate on behalf of Walker, as well as a Notice of Creditor's Claim.The Estate disallowed the claim, and Melissa filed a wrongful death suit in the Third Judicial District Court in June 2007.In July 2007, the Estate moved to dismiss Walker's complaint, alleging that the complaint was barred by the Probate Codestatute of limitations.The district court granted the motion to dismiss, finding that Walker's claim was "barred except as allowed by Utah Code Ann. § 75-3-803(4)(b)," which allows any claim to be pursued to the limits of liability insurance only.

¶ 6 Walker, through his mother, appeals.On appeal, Walker raises the following question: Is a minor's claim against an estate tolled during the child's period of minority pursuant to the general tolling provisions of Utah Code section 78-12-36?¹

STANDARD OF REVIEW

¶ 7 A district court's grant of a motion to dismiss based upon the allegations in the plaintiff's complaint, "presents a question of law that we review for correctness."Ellis v. Estate of Ellis,2007 UT 77, ¶ 6, 169 P.3d 441.In the process, "the district court's interpretation of prior precedent, statutes, and the common law are questions of law that we review for correctness."Id.

ANALYSIS

¶ 8 Walker asks us to hold that Utah's general statute of limitations tolling provision applies to toll the limited claim presentment period in the Utah Probate Code during a claimant's minority.

¶ 9 The general tolling provision reads as follows If a person entitled to bring an action, other than for the recovery of real property, is at the time the cause of action accrued, either under the age of majority or mentally incompetent and without a legal guardian, the time of the disability is not a part of the time limited for the commencement of the action.

Utah Code Ann. § 78-12-36(2002).

¶ 10 The competing provision of the Utah Probate Code provides the following limitation on claim presentation, in relevant part:

(1) All claims against a decedent's estate which arose before the death of the decedent, ... whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract, tort, or other legal basis, if not barred earlier by other statute of limitations, are barred against the estate, the personal representative, and the heirs and devisees of the decedent, unless presented within the earlier of the following dates:

(a) one year after the decedent's death; or

(b) ... within the time provided by Subsection 75-3-801(1) for all claims barred by publication.

Id.§ 75-3-803(1)(1993).

¶ 11Section 75-3-801(1) requires claimants to "present their claims within three months after the date of the first publication of the notice or be forever barred."Id.§ 75-3-801(1).

¶ 12 To reconcile the apparent contradictory instructions of these statutes, we look first at the general tolling statute and examine its reach.Walker contends that the tolling statute is applicable to all statutes of limitation absent an express exemption provided by the legislature.On the other hand, the Estate argues that the standard is less strict, that clear legislative intent to exempt a statute from tolling, even if not express, is sufficient to override the general provision.Our prior decisions appear to side with Walker in that we have consistently required express legislative intent to override the general tolling provision.

¶ 13 In our first case dealing with minority tolling, Scott v. School Board of Granite School District,568 P.2d 746(Utah1977), we held that the general tolling provision does toll the notice requirement of the Governmental Immunity Act during a claimant's minority, concluding that "a minor claimant is justly entitled to the protection afforded by said section 78-12-36(1) ... in all cases."Id. at 748.Later, in Blum v. Stone,752 P.2d 898, (Utah1988), we considered our holding in Scott again, holding that "[t]he sweeping scope of [the language of Scott] requires that all statutes of limitations be tolled during minority unless the legislature enacts a specific exemption."Id. at 900.However, the Blum court also said that "Scott has been recognized to stand for the principle that, absent specific intent, periods of limitation are tolled during minority,"Id., and that "Scott at least had the effect of tolling all statutes of limitations during minority based upon section 78-12-36, absent clear legislative intent to the contrary."Id. at 900, n. 2.Ostler argues, that based on this language, clear legislative intent is sufficient to overcome the tolling provision.

¶ 14 In Cole v. Jordan School District,899 P.2d 776(Utah1995), a minor injured while at school was allowed to proceed with a late-filed claim under the Governmental Immunity Act even though an amendment to the Act gave the minor the ability to file for an extension if he could not meet the one-year deadline.Cole,899 P.2d at 778.Looking at the plain language of the amendment, the Cole court found it unambiguous in that it did not express an intent to exempt the limitation from tolling.Id.Indeed, the court stressed, "Moreover, we are unconvinced that the legislature would dramatically depart from its general intent to protect the causes of minors without a more definite statement as to its intent to remove the protection provided by the general tolling provision of section 78-12-36."Id.

¶ 15 In Bonneville Asphalt v. Labor Commission,2004 UT App 137, 91 P.3d 849, the court of appeals held the Workers' Compensation Act's one-year limitation on death benefit claims to be tolled during minority under the general tolling provision even though the Act expressly provided that a notice of claim for death benefits on behalf of minors "shall be made by the guardian or next friend of the minor dependents."Bonneville Asphalt,2004 UT App 137, ¶ 6, 91 P.3d 849(quotingUtah Code Ann. § 34A-2-414(3)(b)(1997)).The court explained, "In order to except a statute of limitations from the operation of the tolling statute, more specificity is required."Id.The court of appeals further observed, "The Utah Legislature has demonstrated that if it seeks specifically to exempt a statute from the tolling statute, it will do so with clear, explicit language."Id.¶ 8(citingUtah Code Ann. § 78-14-4(2)(2002)(exempting medical malpractice actions from the tolling s...