Pasley v. American Underwriters, Inc., 3-581A130

• Decision Date: 14 April 1982
• Docket Number: No. 3-581A130,3-581A130
• Citation: 433 N.E.2d 838
• Parties: Franklin PASLEY, Appellant-Defendant, v. AMERICAN UNDERWRITERS, INC., Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 838

433 N.E.2d 838

Franklin PASLEY, Appellant-Defendant, v. AMERICAN UNDERWRITERS, INC., Appellee-Plaintiff.

No. 3-581A130.

Court of Appeals of Indiana, Fourth District.

April 14, 1982.

Gilbert King, Jr., Lloyd B. Fisher, Gary, for appellant-defendant.

James K. Whitaker, James K. Whitaker & Associates, Hammond, for appellee-plaintiff.

CONOVER, Judge.

Franklin Pasley appeals from a declaratory judgment rendered in favor of American Underwriters, Inc. In that judgment the Lake Circuit Court held that Pasley had not properly filed a tort claim against the estate of Jimmie Members, and therefore such claim was barred.

We affirm.

FACTS

Jimmie Members was the insured under a motorcycle liability policy issued by American Underwriters, Inc. (American). On May 11, 1975, Members, while operating his motorcycle, struck and seriously injured Franklin Pasley. Members died instantly.

During the two year period following the accident, no estate was opened for Members, and no personal or special representative was appointed. On May 10, 1977, (one day prior to the running of the statute), Pasley filed a complaint against "Jimmie Members (deceased), John Doe, or Mary Doe, heirs and descendants of Jimmie Members."

American, as Members' insuror, subsequently filed a complaint for declaratory judgment against Pasley, seeking a declaration that Pasley's suit was barred by the 2 year statute of limitations. American claimed in the complaint Pasley had not followed the proper procedure in filing his claim for personal injury against Members' estate because Pasley had neither opened the estate nor had a representative for the estate been appointed. Thus, American claimed, Pasley's suit was barred by Ind.Code 29-1-14-1. Subsequently American moved for summary judgment. The trial court held there was no genuine issue of material fact, and American was entitled to judgment as a matter of law. From this ruling Pasley appeals.

ISSUE AND DECISION

Pasley presents only one issue for review. Did he follow the proper procedure in filing his complaint against Jimmie Members' estate even though no estate was opened and no personal or special representative was appointed prior to the running of the statute of limitations.

At issue is an interpretation of IC 29-1-14-1. That statute provides in part:

"(a) All claims against a decedent's estate, other than expenses of administration and claims of the United States, and of the State and any subdivision thereof, whether due or to become due, absolute or contingent, liquidated or unliquidated, founded on contract or otherwise, shall be forever barred against the estate, the personal representative, the heirs, devisees and legatees of the decedent, unless filed with the court in which such estate is being administered within six months after the date of the first published notice to creditors.

"(b) No claim shall be allowed which was barred by any statute of limitations at the time of decedent's death.

"(d) All claims barrable under the provisions of subsection (a) hereof shall, in any event, be barred if administration of the estate is not commenced within one (1) year after the death of the decedent.

"(f) Nothing in this section shall affect or prevent the enforcement of a claim arising out of tort against the estate of a deceased tortfeasor within the period of the statute of limitations provided for such tort action and for the purpose of enforcing such a tort claim the estate of the tortfeasor may be opened or reopened and suit filed against the special representative of the estate within the period of the statute of limitations of such tort: Provided, however, That any recovery against the tortfeasor's estate shall not affect the distribution of the assets of the estate to the heirs, legatees, or devisees of the decedent tortfeasor unless such suit was filed within the time allowed for filing claims against the estate. The rules of pleading and procedure in such cases shall be the same as apply in ordinary civil actions."

It is Pasley's contention IC 29-1-14-1(f) specifically allows tort claimants to bring an action against a decedent's estate regardless of whether an estate has been opened and administrator appointed. He contends subsection (f) does not require an administrator to be appointed prior to the filing of a claim; the statute permits but does not require suit to be filed against the estate and its representative. Since he claims the appointment of an administrator is not mandatory, Pasley argues his complaint, filed within the statutory period, tolled the running of the statute.

Appellant cites no authority to support this contention. Further, we can find none. IC 29-1-14-1(a) specifically states that "(a)ll claims against a decedent's estate ... shall be forever barred against the estate, the personal representative, the heirs, devisees, and legatees of the decedent, unless filed with the court in which such estate is being administered ...." (Emphasis added.)

In Kuzma, Adm' of the Estate of Rosemary Kuzma v. People's Trust & Savings Bank, Boonville, (1961) 132 Ind.App. 176, 176 N.E.2d 134, decided before the enactment of IC 29-1-14-1(f), this Court held tort claims were barred if the decedent's estate was not opened and such action filed as a claim against it within one year from the date of...