Romo v. Estate of Bennett, No. 4084

• Court: California Court of Appeals
• Writing for the Court: HOPPER; FRANSON, Acting P. J., and ZENOVICH
• Citation: 158 Cal.Rptr. 635,97 Cal.App.3d 304
• Parties: Benjamin Nathan ROMO, etc., Plaintiff and Appellant, v. ESTATE of Charles R. BENNETT, Defendant and Respondent.
• Docket Number: No. 4084
• Decision Date: 26 September 1979

Page 635

158 Cal.Rptr. 635 97 Cal.App.3d 304 Benjamin Nathan ROMO, etc., Plaintiff and Appellant,
v.
ESTATE of Charles R. BENNETT, Defendant and Respondent. No. 4084. Court of Appeal, Fifth District, California. Sept. 26, 1979.
As Modified on Denial of Rehearing Oct. 23, 1979.

[97 Cal.App.3d 305]

Page 636

Jerold L. Bloom and Robert M. Fox, Sherman Oaks, for plaintiff and appellant.

Diepenbrock, Wulff, Plant & Hannegan, Peter M. Doyle and Charity Kenyon, Sacramento, for defendant and respondent.

OPINION

HOPPER, Associate Justice.

In this action for damages limited to the extent of liability insurance for medical malpractice alleged to have taken place in 1965 but not discovered by due diligence until 1975, appellant appeals from a [97 Cal.App.3d 306] summary judgment entered in favor of the respondent grounded upon an alleged bar of Probate Code section 721 enacted in 1971. ¹ We reverse.

Appellant, Benjamin Nathan Romo (hereinafter Benjamin) was born in Merced, California, on February 5, 1965. Dr. Charles R. Bennett was the attending physician. Dr. Bennett died on February 12, 1966. His estate was thereupon probated. The date of first publication of notice to creditors in that estate was December 10, 1966. No claim was filed on behalf of appellant within the statutory six-months period as then provided in the Probate Code. Final distribution

Page 637

of the estate was made on October 9, 1967.

Sometime within a year after Benjamin's birth it was discovered that he was blind. Eventually Benjamin's father, based on discussions with various doctors, was informed that Benjamin's blindness resulted from oxygen given to him at birth. In 1975 Benjamin's father was made aware of the possibility that Benjamin's injuries may have been caused by Dr. Bennett and other defendants at the time of Benjamin's birth. In April of 1975 Benjamin's father retained an attorney to look into the matter. On July 11, 1975 suit was filed, originally against the hospital in which Benjamin was born but subsequently amended to include Dr. Bennett. Dr. Bennett had malpractice insurance issued by Truckers Insurance Exchange. The action against the estate of Bennett, deceased, was filed pursuant to Probate Code section 721 and was limited to the liability insurance.

Respondent's motion for summary judgment was granted on the theory that the cause of action was barred by section 721.

Appellant argues, inter alia, that the Probate Code statute of limitations does not bar unaccrued causes of actions limited to liability insurance only. We agree.

[97 Cal.App.3d 307] Probate Code section 721 extended the period of limitation to existing causes of action which were not yet barred by the old period (Eken v. Bosworth (1977) 72 Cal.App.3d 248, 252, 139 Cal.Rptr. 834).

The enacting clause to Probate Code section 721 was designed to make the section prospective rather than retroactive (see Review of Selected 1971 California Legislation, Administration of Estates (1971) 3 Pacific L.J. 197, 200). Consequently, Probate Code section 721 does not apply to: (1) a cause of action pending at its effective date, (2) a claim...