Serban v. Halsey, 57A04-8806-CV-181
| Decision Date | 23 January 1989 |
| Docket Number | No. 57A04-8806-CV-181,57A04-8806-CV-181 |
| Citation | 533 N.E.2d 162 |
| Parties | Daniel E. SERBAN, Personal Representative of the Estate of Merlin C. Martin, Deceased, Appellant (Defendant Below), v. Kimberly K. HALSEY, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
Thomas W. Yoder, Larry L. Barnard, Livingston, Dudine, Haynie & Yoder, Fort Wayne, for appellant.
Thomas A. Herr, Barrett & McNagny, Fort Wayne, for appellee.
Appellant Daniel E. Serban, personal representative for the Merlin C. Martin Estate, brings an interlocutory appeal. Serban appeals the trial court order denying summary judgment and granting leave to the plaintiff to file an amended pleading. The facts indicate that on January 23, 1984, a Chrysler automobile driven by Merlin C. Martin hit pedestrian, Kimberly K. Halsey, causing her personal injuries. On January 2, 1985, Merlin C. Martin died of natural causes. On January 17, 1986, Daniel E. Serban was appointed personal representative of the Merlin C. Martin Estate for the sole purpose of allowing an action for damages. Later on January 17, 1986, Kimberly K. Halsey filed a verified claim against the estate of Merlin C. Martin.
Appellant Daniel E. Serban raises the following issues:
(1) whether the trial court erred in denying a motion for summary judgment when administration of the Merlin C. Martin Estate was not commenced within one year of Merlin C. Martin's death; and
(2) whether the trial court erred in granting leave to file an amended pleading when the plaintiff brought a claim against the estate instead of a suit against the personal representative.
Serban first contends that the trial court erred when it failed to bar the plaintiff's claim pursuant to IND.CODE Sec. 29-1-14-1(d) (1988 Ed.). That provision states that all claims against a decedent's estate are barred if administration of the estate is not commenced within one year after the death of the decedent.
Merlin C. Martin died intestate on January 2, 1985. Administration of the estate for the purpose of allowing an action for damages was commenced more than one year after the death of Merlin C. Martin. Serban cites Pasley v. American Underwriters, Inc. (1982), Ind.App., 433 N.E.2d 838, as authority for barring the plaintiff's claim. In that case, the court held that an action against a deceased tortfeasor was barred when the plaintiff failed to have an estate opened and a personal representative appointed within one year of the decedent's death.
The trial court rejected the holding in Pasley and followed the case of Langston v. Estate of Cuppels by Miller (1984), Ind.App., 471 N.E.2d 17. In that case, the court held that opening an estate within one year of the decedent tortfeasor's death is not a precondition to filing a tort claim within the tort statute of limitation. As long as the estate is opened, a personal representative appointed, and the tort claim filed within the statute of limitations, the tort action is not barred. Id. at 19. The Langston court read IND.CODE Sec. 29-1-14-1(f) (1988 Ed.) as an exception to IND.CODE Sec. 29-1-14-1(d) (1988 Ed.). Id. at 20.
In the present case, the trial court noted that the plaintiff's claim for personal injuries against the deceased tortfeasor was an IND.CODE Sec. 29-1-14-1(f) (1988 Ed.) action. The plaintiff's action sought insurance proceeds, not the estate's assets. The trial court correctly ruled that an action against a deceased tortfeasor is not barred by the failure to comply with IND.CODE Sec. 29-1-14-1(d) (1988 Ed.), when the plaintiff had an estate opened, a personal representative appointed, and a tort claim filed within the two-year statute of limitation.
Serban next contends that the trial court...
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