Opinion
No. 040235.
Memorandum Dated March 7, 2005.
After hearing, and upon review and consideration, the defendant's Ralph Perri's motion to dismiss is DENIED.
The plaintiff Tamar Barkhordarian brings this action to recover for injuries sustained when she allegedly fell on snow and ice on February 1, 2001 on property owned by the defendant. This action was commenced on January 21, 2004. The defendant died on January 14, 2002. The plaintiff was, at the time of filing, unaware of the death of the defendant. Indeed, shortly after Mr. Perri's death, plaintiff's counsel was communicating with the defendant's insurance company whose representative never advised counsel of Mr. Perri's death. The plaintiff first learned of the death when the defendant moved to remove a default entered against him because the defendant's son, Ralph Perri Jr., had only first learned of the action when he received notice of the default. The plaintiff assented to the removal of the default. Mr. Perri Jr. was the executor of the defendant's estate, and his function in that capacity is claimed to have concluded by statute in January 2003, one year from the date of the defendant's death. The sole asset of the estate, the defendant's home, passed to the defendant's wife pursuant to his will.
For some unexplained reason, Mr. Perri Jr. had a twenty-five (25%) percent interest in the home. He sold said interest in September 2002.
The defendant maintains that the plaintiff's action is a nullity because a dead person cannot be sued, see Chandler v. Dunlop, 311 Mass. 1, 8 (1942), and that the plaintiff does not benefit from any of the cases narrowing the Nullity Doctrine because the defendant's estate is no longer legally in existence, no notice of the claim was given to the representative of the estate, and no answer was filed on behalf of the deceased or the estate. See Holmquist v. Starr, 402 Mass. 92, 95 (1988); Nutter v. Woodward, 34 Mass.App.Ct. 596, 598-99 (1993). As noted in Nutter, to dismiss this action would allow an unwarranted windfall to the insurer. Id. at 600. Here, as in Nutter, there was a person in existence (the defendant's son) against whom the action could have been brought. "Although the estate had been closed by the time the action was commenced, a complaint could have been brought against the [executor] on [Barkhordarian's] personal injury claim as a mere formality for bringing in the insurer, the only real party in interest." Id., citing G.L.c. 197, § 9A. It appears that the executor had actual notice of the plaintiff's claim given that Mr. Perri Jr. received notice of the default.
Here, the defendant was provided an opportunity to remove a default and file a responsive pleading, with the plaintiff's assent, and has suffered no prejudice by plaintiff's mistake in naming the defendant rather than the estate. The insurer has been aware of this claim since at least early 2002, and either, like the plaintiff, was unaware of the defendant's death, or chose to withhold that information from the plaintiff. As in Nutter, the insurer will have an opportunity to file an answer on the estate's behalf if the plaintiff is permitted to amend her complaint to name the estate, and undoubtedly would have done so if the action had originally named the estate. 34 Mass.App.Ct. at 599. Because the nullity doctrine is inapplicable in this case, the plaintiff should be permitted to amend her complaint.
As the amendment to the complaint to substitute Mr. Perri's estate would relate back to the date of the initial filing, see Nutter, 34 Mass.App.Ct. at 600, the time for service will not have run under Mass.R.Civ.P. 4(j) as claimed by the defendant.
ORDER
Based on the foregoing, it is hereby ORDERED that the defendant Perri's motion to dismiss is DENIED, and the plaintiff Barkhordarian's request to file an amended complaint substituting Ralph Perri Jr., as executor of the estate of Ralph Perri, as the defendant is ALLOWED.