Opinion
C.A. No. 97C-12-020
Submitted: February 9, 2001
Decided: March 12, 2001
Upon Consideration of Defendants' Motion to Dismiss Claims of Timothy Ryan Malafronti. DENIED.
Upon Consideration of Plaintiffs' Motion to Enlarge Time. GRANTED.
Upon Consideration of Plaintiffs' Motion to Amend Complaint. GRANTED.
Fred Barakat, Esq., Chadds Ford, Pennsylvania. Attorney for Plaintiffs.
Mason E. Turner, Esq., Attorney for Defendant Bayhealth and Hardy.
Anne L. Naczi, Esq., Attorney for Defendant Ob-Gyn and Radnich.
ORDER
Upon consideration of the defendants' motion to dismiss the claims of Timothy Ryan Malafronti, the plaintiffs' response, the plaintiffs' motion to enlarge time and amend the complaint, the defendants' response, and the record of this case, it appears that:
1. This action was filed on or about December 12, 1997. The plaintiffs were Timothy Ryan Malafronti, then almost two years old, his parents, PennyJean Malafronti (now Daniels) and Joseph Daniels, and Timothy's grandmother, Wanda Malafronti. Penny and Joseph were next friend of Timothy, and also asserted claims in their own, individual capacities. Wanda asserted a claim in her individual capacity. Timothy's claim was that medical malpractice on the part of the defendants at the time of his delivery caused him to be born with severe birth defects. On March 18, 2000, Timothy died, allegedly because of his birth defects, although this is a dispute in the litigation. On or about March 30, 2000 defendants Ob-Gyn Associates of Dover, P.A and Robert H. Radnich, M.D. filed a Suggestion of Death upon the record noting Timothy's death. The Suggestion of Death was served on plaintiffs' counsel. Nothing further occurred in connection with the Suggestion of Death until January 5, 2001. On that date Ob-Gyn Associates and Dr. Radnich filed a motion to dismiss Timothy's claims on the grounds that no motion to substitute Timothy's administrators as a new party in his place had been filed within 90 days of the Suggestion of Death as required under Rule 25. On or about January 16, 2001 the plaintiffs filed a motion reciting that Penny, Joseph and Wanda had now been appointed Timothy's administrators, requesting enlargement of the time for substituting Timothy's administrators under Rule 25, and requesting leave to amend the complaint for that purpose and to add a wrongful death claim by Timothy's parents. For the reasons which follow, assuming, arguendo, that service of the Suggestion of Death was sufficient, I find that the plaintiffs' failure to move forward with substitution under Rule 25 within 90 days of the filing of the Suggestion of Death is the result of excusable neglect. The motion to dismiss is denied and the motion to enlarge time, substitute and amend is granted.
Counsel were informed of the decisions on these motions by letter dated February 15, 2001.
2. On April 12, 2000, less than a month after Timothy's death, and after the Suggestion of Death had been filed, the Court held a pre-trial conference. That pretrial conference was one which had been established in a scheduling order entered on August 3, 1999. The trial date at that time was May 8, 2000. At the conference a new trial date of February 26, 2001 was set and deadlines were established which included, among others, identification of plaintiffs' experts (September 15, 2000), identification of defendants' experts (November 1, 2000), and discovery cutoff (December 15, 2000). Correspondence in the file indicates that at the time of the April 12 conference the parties realized that the death of Timothy would require amendment of the pleadings to configure them to the new fact of Timothy's death. However, no deadline was set for amendment of the pleadings.
3. Before turning to the issue of excusable neglect, the operation of Rule 25 should be considered. Among the cases cited by the parties in their moving and responding papers is Tiffany v. O' Toole Realty Co. In that case the plaintiffs were a husband and wife. Although the cause of action of each arose out of the same injury to the wife, they were separate causes of action. The husband died while the action was pending. No motion to substitute the husband's personal representative was made within the time then required by the rule. When the defendant moved to dismiss the husband's claim, the wife contended that no formal substitution was necessary because the husband's claim passed to her. Chief Justice Christie (then a Superior Court judge) rejected the wife's contention and held that even though she was a party to the action in her individual capacity, was her husband's beneficiary, and was subsequently appointed his executrix, the failure to substitute her in her capacity as executrix within the time required by the rule was fatal to his claim. The claim was dismissed.
Del. Super., 153 A.2d 195 (1959).
Tiffany was decided under an earlier version of Rule 25 which required that substitution for a deceased party be done within two years of death. The two years could not be enlarged.
4. The plaintiffs in this case are in substantially the same position as the wife in Tiffany. They are parties to the action in their individual capacities, are Timothy's beneficiaries, have been appointed his administrators, and have not heretofore been substituted for him in their capacity as personal representatives. They respond to the Tiffany case by arguing that it was wrongly decided and should not be followed. They reiterate, in essence, the argument made by the wife in Tiffany. The problem with their position, however, is that the Tiffany case is clearly correct and their argument has no merit.
5. There are other Rule 25 issues, however, which need mention. In order to commence the running of the 90 days within which a motion to substitute must be filed, a suggestion of death must be filed, served upon parties pursuant to Rule 5, and served upon persons not parties pursuant to Rule 4. At least one federal district court judge has expressed the opinion that the suggestion of death filed by a party is not effective unless it is served upon the deceased party's personal representatives pursuant to Rule 4 after the personal representative has been duly appointed. Here the suggestion of death was served upon the plaintiffs' attorney who represented Penny, Joseph and Wanda in their individual capacities as parties to the action. Thus, service upon Penny, Joseph and Wanda was effective upon them individually by service upon their attorney pursuant to Rule 5. However, they were not served in their capacities as administrators of the Estate of Timothy Malafronti and at the time of the service of the Suggestion of Death had not been appointed to that position. As mentioned above, my decision is that the time for substituting Timothy's administrators will be enlarged based upon excusable neglect, assuming, arguendo, that service of the Suggestion of Death was sufficient. However, I express no opinion on the sufficiency of service of the Suggestion of Death, and I simply note that there is an argument to be made which has not been definitively ruled upon in this jurisdiction that service of the Suggestion of Death in this case was not sufficient and that the 90 days never began to run.
Kaldawy v. Gold Service Movers, Inc., 129 F.R.D. 475 (S.D.N.Y., 1990). In the opinion the court noted that surviving parties need not wait indefinitely for the deceased's family to move forward on the appointment of a personal representative. The court noted that a surviving party could force the issue by petitioning for the appointment of a personal representative. In Delaware, after 60 days from the date of death any interested party can petition for the appointment of a personal representative.
In Doherty v. Straughn, Del. Supr., 407 A.2d 207 (1979) a husband and wife were both plaintiffs. The husband, however, was plaintiff in his capacity as administrator of a deceased son's estate. The wife was a plaintiff in her individual capacity. After her husband died, a defendant served a Suggestion of Death upon the wife's attorney m the action. When no motion for substitution was filed within 90 days, the defendant moved to dismiss the deceased son's claim. The wife, after the motion to dismiss was filed and after being appointed successor administratrix of the deceased son's estate, moved to be substituted as a party. The motion was denied and the deceased son's claim was dismissed. The Court stated in its opinion that service of the Suggestion of Death had been properly made, but the sufficiency of the service was not raised as an issue. If the service in that case was sufficient, then it was sufficient in this case. If so, ingenuity of counsel will likely lead to another case where an attorney finding him! herself in the position of the Doherty's attorney, attempts to extricate him/herself by having a family member who is not already a party appointed as administrator and arguing that that person was not served under Rule 4.
6. Turning to the excusable neglect issue, excusable neglect is neglect that "might have been the act of a reasonably prudent person under the circumstances." Counsel's disagreement with the Tiffany case is clearly not excusable neglect. However, shortly after Timothy's death, a new scheduling order was issued which included a number of deadlines extending through the period from the April 2000 pre-trial conference to the February 2001 trial date. The date 90 days from the filing of the Suggestion of Death, which at that point had already been filed, was not among them. As indicated by correspondence in the file, at the time it was thought that the autopsy report might not be available for several months. While the autopsy report was not relevant to substitution of Timothy's administrator, it was relevant to the determination of whether there was a factual basis for amending the complaint to add a wrongful death claim. Counsel may have thought that it would be acceptable to do all amendments to the complaint in one step. Under all of the circumstances I am content to conclude that a "reasonably prudent" counsel might have thought that the 90-day rule would not be invoked.
Madison v. Edison, Del. Supr., 723 A.2d 397 (1998).
7. Therefore, the defendants' motion to dismiss the claims of Timothy Ryan Malafronti is denied . The plaintiffs' motion to enlarge the time for substituting Timothy's administrators is granted . The plaintiffs' motion to amend the complaint to add Timothy's administrators, to add a claim for wrongful death and to add or more clearly state a breach of contract claim for Penny, Joseph and Wanda is granted.
IT IS SO ORDERED.