Satterfield v. Garmire

Decision Date26 April 1966
Citation51 Cal.Rptr. 66
CourtCalifornia Court of Appeals Court of Appeals
PartiesDavid L. SATTERFIELD et al., Plaintiffs and Appellants, v. Albert F. GARMIRE, Executor of the Estate of Robert P. Garmire, Deceased, Defendant and Respondent. Civ. 7928.

For Opinion on Hearing, see 56 Cal. Rptr.102, 422 P. 2d 990.

McInnis, Focht & Fitzgerald and William T. Fitzgerald, San Diego, for plaintiffs and appellants.

Gray, Cary, Ames & Frye, C. M. Monroe, San Diego, of counsel, and Gerald R. Schmelzer, San Diego, for defendant and respondent.

COUGHLIN, Justice.

Zora Lee Satterfield died as the result of a collision between an automobile in which she was riding and another automobile driven by Robert P. Garmire, who also was killed in the accident. Plaintiffs, as heirs of Satterfield, brought this wrongful death action against defendant as executor of the estate of Garmire. The issues on appeal arise out of an order sustaining defendant's demurrer to plaintiffs' amended complaint upon the ground the action was barred because of plaintiffs' failure to file or present a claim as required by § 707 of the Probate Code, and the latter's contention that defendant is estopped to assert such failure.

The filing or presentation of a claim against an estate is a condition precedent to commencement of an action thereon against the personal representative. (Morse v. Steele, 149 Cal. 303, 304, 86 P. 693; Preston v. Knapp, 85 Cal. 559, 561, 24 P. 811.) This condition is imposed by the statutory mandate:

'All claims * * * for damages for * * * death * * * must be filed or presented within the time limited in the notice [to creditors] * * *; and any claim not so filed or presented is barred forever * * *' (Prob.Code, § 707.)

As a consequence, a complaint in a wrongful death action against the personal representative of the estate of a deceased person, predicted upon the latter's negligence, that fails to allege the filing or presentation of a claim against the estate for the damages sought to be recovered, within the statutorily prescribed time, does not state a cause of action, and is subject to general demurrer. (Morrison v. Land, 169 Cal. 580, 585, 147 P. 259; Burke v. Maguire, 154 Cal. 456, 462, 98 P. 21; Morse v. Steele, supra, 149 Cal. 303, 304, 86 P. 693; Morrow v. Barker, 119 Cal. 65, 66, 51 P. 12; McGrath v. Carroll, 110 Cal. 79, 83, 42 P. 466; Harp v. Calahan, 46 Cal. 222, 233; Chahon v. Schneider, 117 Cal.App.2d 334, 346, 256 P.2d 54; People v. Osgood, 104 Cal.App. 133, 137, 285 P. 753.)

Garmire's estate was insured under an insurance policy issued to him indemnifying against any loss resulting from the subject accident. Following defendant's appointment as executor, plaintiffs' attorney and agents of the insurance company entered into negotiations to effect a settlement of plaintiffs' wrongful death claim against Garmire's estate. During these negotiations, i. e., on September 11, 1963, defendant caused a notice to creditors to be published as required by law. (See Prob.Code, §§ 700-702.) As a result of this publication and the law in the premises, the time for filing or presentation of any claim against the estate expired on March 11 1964. Approximately four months before the expiration date, i. e., on November 15, 1963, plaintiffs filed this action; had not filed or presented a claim against the estate as required by law; and did not allege such filing or presentation in their complaint. Defendant answered. When the matter came on for a pre-trial hearing, which was after expiration of the time to file or present a claim, defendant for the first time raised the issue respecting plaintiffs' noncompliance with Probate Code, § 707. Subsequently, i. e., on April 2, 1964, plaintiffs filed their claim, and it was rejected. Thereafter, with court permission, they filed an amended complaint in which they alleged facts which they contend estop the defendant from asserting, as a defense to the action, their failure to file or present a claim within the period prescribed. The estoppel allegations in substance aver the existence of the indemnity insurance policy heretofore referred to; the policy limits are in excess of the amounts prayed for by plaintiffs in the instant action; the insurance company, through its agents, entered into negotiations with the attorney for plaintiffs to effect a settlement of their claim; the insurance company, in negotiating for settlement, 'was acting as the real party in interest with reference to the causes of action herein alleged'; to the event judgment were rendered in favor of plaintiffs against defendant such judgment would be paid by the insurance company; in the course of the aforesaid negotiations the insurance company offered to settle the action for $9000; this amount was not acceptable to plaintiffs; if then was mutually agreed between the attorney for plaintiffs and the insurance company, 'in order to permit the said case to approach trial.' the attorney for plaintiffs would file the subject action and after service thereof upon defendant negotiations for settlement would continue; during the negotiations prior to suit the insurance company 'readily admitted and agreed that the case was one of liability and that any defense' by it 'would either be non-existent in the sense that liability would be admitted or, in the alternative, would be of a cursory nature only'; the attorney 1, in accordance with the aforesaid agreement, filed the original complaint herein and effected service upon defendant; defendant answered the complaint through attorneys selected by the insurance company; thereafter settlement negotiations continued but the offer of $9000 was not increased; following expiration of the time within which the claim was required to be filed against the estate under the Probate Code the offer of settlement theretofore made was summarily withdrawn, and plaintiffs' attorney was informed that as the time for filing a claim had expired, no further negotiations for settlement would be had and the defense of failure to file such a claim would be interposed; the defendant, as executor of the Garmire estate 'is a nominal party only'; and defendant should be estopped to claim plaintiffs' claim against the Garmire estate was not filed within the time allowed by law.

Plaintiffs' claim of estoppel is predicated upon the premise that the conduct of the insurance company was the conduct of the defendant executor whom it represented. (See Carruth v. Fritch, 36 Cal.2d 426, 431-434, 224 P.2d 702, 24 A.L.R.2d 1403; Regus v. Schartkoff, 156 Cal.App.2d 382, 385, 319 P.2d 721.)

Defendant demurred to the amended complaint upon the ground the purported cause of action therein was barred by the provisions of § 707 of the Probate Code. The trial court, by an order in the form of a letter filed in the case, sustained the demurrer 'on the strength of the opinion in Hurlimann v. Bank of America, 141 Cal.App.2d 801, 297 P.2d 682,' and stated: 'This is without leave to amend unless plaintiffs conceive that a cause of action may be stated against the insurance company.' No amendment was filed. Judgment dismissing the action followed.

In support of the judgment defendant contends (1) an executor-defendant in a wrongful death action may not be estopped to assert plaintiffs' failure to file or present a claim against the estate for damages as required by § 707 of the Probate Code; and (2) the allegations in plaintiffs' complaint did not set forth grounds for an estoppel.

The personal representative of an estate may not waive the bar resulting from either a total failure to file or present a claim as required by the statute (Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21; Harp v. Calahan, supra, 46 Cal. 222, 233; Estate of Heigho, 186 Cal.App.2d 360, 367, 9 Cal.Rptr. 196; Estate of Smith, 122 Cal.App.2d 216, 217, 264 P.2d 638; Estate of Erwin, 117 Cal.App.2d 203, 204, 255 P.2d 97; People v. Osgood, supra, 104 Cal.App. 133, 137, 285 P. 735), or from a failure to file or present if within the time prescribed. (Estate of Heigho, supra, 186 Cal.App.2d 360, 366-367, 9 Cal.Rptr. 196; Estate of Smith, supra, 122 Cal.App.2d 216, 217-218, 264 P.2d 638; Estate of Erwin, supra, 117 Cal.App.2d 203, 204, 255 P.2d 97.)

The scope of this rule has been expressed in terms indicating the limitation upon the authority of the executor to waive the requirements of the statute following expiration of the time within which to file or present claims also includes a limitation upon his authority to do so prior to that time. (Harp v. Calahan, supra, 46 Cal. 222, 233.)

In Hurlimann v. Bank of America, supra, 141 Cal.App.2d 801, 806, 297 P.2d 682, being the decision relied upon by the trial court in support of its order sustaining defendant's demurrer, the rationale of the cases stating the rule heretofore noted was used to rule out any basis for estoppel of the personal representative 'predicated upon the conduct of the decedent.' However, whether a personal representative may be estopped to assert the bar arising from failure to file or present a claim within the time prescribed by statute because his conduct was the cause of such failure has not been determined.

The object of the statute requiring the filing or presentation of a claim against an estate within a fixed period as a condition precedent to suit thereon is to avoid the expense of unnecessary litigation and to expedite the settlement of estates. (Radar v. Rogers, 49 Cal.2d 243, 248-249, 317 P.2d 17; Burke v. Maguire, supra, 154 Cal. 456, 463, 98 P. 21; Preston v. Knapp, supra, 85 Cal. 559, 561, 24 P. 811; Harp v. Calahan, supra, 46 Cal. 222, 231.) The rule that a personal representative may not waive this requirement, or the bar attaching upon noncompliance therewith, is premised upon the limited scope of his authority (See Claude T. Lindsay, Inc. v. Crocker-Anglo Nat. Bank, 207 Cal.App.2d 199, 202, 24...

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