Opinion
Master File 00 Civ. 2843 (LAK).
February 16, 2005
PRETRIAL ORDER NO. 351 ( Brown — Motion to Substitute Personal Representative)
In PTO 348, the Court granted summary judgment dismissing the complaint as to all plaintiffs related to decedent Sue Ann Tedesco. Plaintiffs now move to substitute Charles Tedesco, Sr., in his capacity as executor of the decedent's estate, to proceed with this action.
This case was commenced in an Indiana state court, removed to the district court, and transferred here by the Multidistrict Panel. Accordingly, Mr. Tedesco's capacity to sue is governed by Indiana law. See Fed.R.Civ.P. 17(b).
Sue Ann Tedesco died on March 27, 2000. Letters testamentary were issued to Mr. Tedesco on January 27, 2005.
The Indiana Wrongful Death Statute provides in relevant part:
"When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she, as the case may be, lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years." Ind. C. § 34-23-1-1 (2004) (emphasis added).
Indiana courts, moreover, have held that the appointment of a personal representative within two years of a decedent's death is a statutory condition precedent to a wrongful death action and cannot be remedied by a belated appointment even if the suit was commenced prior to the expiration of the two year period. Goleski v. Fritz, 768 N.E.2d 889, 890-91 (Ind.Sup. 2002); Hosler v. Caterpillar, Inc., 710 N.E.2d 193, 195 (Ind.App. 1999).
As Mr. Tedesco was not appointed executor of the estate until almost five years after the death of his testator, his claim under the Indiana Wrongful Death Statute must fail. The motion to substitute [00 Civ. 2843, docket item 2803) is denied.
SO ORDERED.