Pargman v. Vickers
| Decision Date | 31 August 2004 |
| Docket Number | No. 1 CA-CV 03-0561.,1 CA-CV 03-0561. |
| Citation | 208 Ariz. 573,96 P.3d 571 |
| Parties | Brenda PARGMAN, a single woman, Plaintiff-Appellant, v. Betty A. VICKERS and John Doe Vickers, husband and wife, Defendants-Appellees, Foundation Reserve Insurance Company, Real Party in Interest-Appellee. |
| Court | Arizona Court of Appeals |
Petersen Johnson, P.C., By Timothy R. Grimm, Phoenix, for Plaintiff-Appellant.
Andrew F. Marshall, P.C., By Andrew F. Marshall, Phoenix, for Real Party in Interest-Appellee.
¶ 1 This appeal arises out of a personal injury case filed within the two-year statute of limitations by plaintiff-appellant Brenda Pargman against Betty Vickers. When Pargman sued Vickers, she did not know Vickers had died.
¶ 2 After expiration of the limitation period, Pargman filed an amended complaint naming Vickers' estate and sought to recover against the only assets of the estate, insurance proceeds available under a policy issued to Vickers by the real party in interest, Foundation Reserve Insurance Company. The trial court dismissed Pargman's amended complaint, finding it time barred. The trial court held the amended complaint could not "relate back" to the date of the original complaint because, under Rule 15(c) of the Arizona Rules of Civil Procedure, the estate was not in existence and could not have known about the action and Pargman's mistake before expiration of the time specified in that rule for such notice and knowledge.
¶ 3 The issue presented in this appeal is whether, under these circumstances, an amended complaint naming a decedent's estate may relate back to the date of the original complaint that mistakenly named only the decedent as the defendant.
¶ 4 We hold that when, as here, a plaintiff mistakenly sues a decedent and not the decedent's estate and seeks to recover only against insurance proceeds, if the decedent's insurer had notice of the action and knowledge of the plaintiff's mistake within the period specified by Rule 15(c), an amended complaint will relate back to the date of the original complaint absent any prejudice to the insurer and the estate, and assuming the other requirements of Rule 15(c) are met. Consequently, we reverse the trial court's judgment dismissing Pargman's case.
¶ 5 On March 18, 1997, Pargman and Vickers were involved in an automobile accident. At some point in 1997 — the record does not reflect when — Foundation, Vickers' automobile liability insurer, received notice of the accident. Three months after the accident, Vickers died from unrelated causes.
¶ 6 Unaware that Vickers had died, Pargman filed a personal injury lawsuit against her on March 5, 1999, before the two-year statute of limitations for personal injury under Arizona Revised Statutes ("A.R.S.") section 12-542 (2003)1 expired.2 Pargman then had 120 days to serve Vickers with a summons and the complaint. Ariz. R. Civ. P. 4(i).
¶ 7 By letter dated March 25, 1999, Pargman's attorney notified Foundation's adjuster of the lawsuit. The adjuster requested a copy of the summons and complaint. Pargman's lawyer sent the adjuster a copy of the complaint on April 28, 1999 and also advised the adjuster that he had been unable to locate Vickers and requested her current address. In response, the adjuster advised Pargman's attorney that it had no knowledge of Vickers'"whereabouts."
¶ 8 Foundation then retained an attorney to look into the matter for it. On June 2, 1999, Foundation's attorney informed Pargman's lawyer that he had received a copy of Foundation's file, along with a copy of Pargman's complaint, stated that he too did not know Vickers'"whereabouts," and asked for an opportunity to file a responsive pleading before Pargman defaulted Vickers. On June 11, 1999, Foundation's adjuster informed Pargman's attorney that although it had not had any contact with Vickers, it had learned, but not confirmed, "that perhaps she is deceased." Three days later, Foundation's attorney wrote Pargman's lawyer and stated that "if and when appropriate service of process is affected on the estate of Betty A. Vickers ... we will respond accordingly."3
¶ 9 At that point, at her request, the trial court granted Pargman an extension to November 23, 1999 to effect service. In requesting the extension, Pargman advised the court she had been unable to serve Vickers who "may ... be deceased."
¶ 10 Pargman attempted to serve Vickers through publication. On November 1, 1999, she filed an Affidavit of Publication reflecting completion of the publication process. On January 14, 2000, at Pargman's request, the trial court continued the case on the inactive calendar to May 9, 2000. In obtaining this continuance, Pargman's lawyer informed the court that Vickers had been served by publication and that additional time was needed to either complete arbitration or obtain a default judgment. ¶ 11 On January 21, 2000, the attorney retained by Foundation informed Pargman's lawyer that Vickers had died and, according to the "records department for probate proceedings," no probate had been opened for her. The lawyer gave Pargman's attorney a copy of Vickers' death certificate and asserted Vickers' death invalidated the service by publication.
¶ 12 On February 28, 2000, Pargman filed an application in the probate court for the informal appointment of a special administrator for Vickers' estate who could accept service of process. Over Foundation's objection, the probate court appointed a special administrator who accepted service on May 24, 2000. However, Foundation continued to pursue its objections to the appointment of the special administrator and, ultimately, on October 17, 2000, the probate court vacated the administrator's appointment. The probate court nullified all of the actions taken by the special administrator, thus, invalidating the special administrator's acceptance of service.
¶ 13 On November 6, 2000, Pargman filed several motions that collectively requested the court to maintain her personal injury case on the inactive calendar so she could take steps in the probate court to obtain appointment of a personal representative for Vickers' estate who could accept service.4 Pargman also requested the court to allow her to amend her complaint to add Vickers' estate and/or the personal representative of Vickers' estate as a defendant and to extend time for completion of service. After oral argument, the trial court granted Pargman's motions, continued the case on the inactive calendar and allowed Pargman to amend her complaint to add Vickers' estate as a defendant. In its ruling, the court noted that Foundation "had received actual notice of plaintiff's claim shortly after the accident in 1997."
¶ 14 On November 22, 2000, Pargman filed a first amended complaint, naming Vickers' estate as a defendant. Her amended complaint asserted she had petitioned for the appointment of a personal representative for Vickers' estate "for the limited purpose of accepting service of process." On May 9, 2001, the probate court granted Pargman's petition to open Vickers' estate and subsequently appointed Pargman as the estate's personal representative.
¶ 15 Pargman then waived service of process. Even though Pargman had finally served Vickers' estate, her personal injury case remained dormant for most of the next year as the trial court stayed the case because Foundation had appealed the probate court's May 2001 order.
¶ 16 On June 13, 2002, this court affirmed the probate court's order appointing Pargman as the estate's personal representative. In re Estate of Vickers, 1 CA-CV 01-0355 (Ariz.App. June 13, 2002) (mem.decision). In so doing, we rejected Foundation's argument that Pargman had waited too long before attempting to open Vickers' estate. Applying A.R.S. § 14-3803(D)(2) (2003), we held the time limits for presenting claims against an estate, A.R.S. §§ 14-3803(A) and (B), were inapplicable because Pargman was only seeking to recover against the insurance proceeds available under Foundation's policy.5 Pargman's case against Vickers then returned to the trial court.
¶ 17 In November 2002, Foundation moved to dismiss Pargman's amended complaint. It asserted Pargman's personal injury claim — now against Vickers' estate — was time barred and did not "relate back" to the date of her original complaint under Rule 15(c).
¶ 18 Rule 15(c) allows a plaintiff to amend its complaint to change a defendant after the statute of limitations applicable to the claim has run if the claim arises from the "conduct, transaction, or occurrence" set out in the original complaint and, within the limitation period plus the period for service of the summons and original complaint, the party to be brought in has received sufficient notice of the institution of the action so as not to be prejudiced in defending against the claim and knew or should have known that but for a mistake concerning its identity, the plaintiff would have sued it. In pertinent part, Rule 15(c)6 states:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom the claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, plus the period provided by Rule 4(i) for service of the summons and complaint, the party to be brought in by amendment, (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
¶ 19 Foundation contended, first, the two-year limitation...
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