Opinion
No. 75-676
Decided August 26, 1976.
Personal injury action by injured plaintiff and his wife against estate of deceased alleged tortfeasor and against corporation of which decedent had been president. From summary judgment granted both defendants, plaintiffs appealed.
Affirmed in Part, Reversed in Part.
1. DISMISSAL AND NONSUIT — Dismissal Prior to Trial — Without Comment Regarding Prejudice — Is — Without Prejudice. Where dismissal by plaintiff prior to trial of the first action against an estate was made without comment by counsel or court as to whether the dismissal was with or without prejudice, by clear language of the rules of civil procedure, the dismissal was without prejudice.
2. JUDGMENT — Summary — For Decedent's Corporation — Rejecting Respondeat Superior Theory — Immaterial Basis — Later Claim — Against Decedent's Estate — Not Barred. Summary judgment entered in action against corporation of which decedent was president, based upon plaintiff's failure to prove that the doctrine of respondeat superior was applicable so as to make corporation liable for decedent's negligence, was a judgment premised on a basis immaterial to plaintiff's subsequent claim against decedent's estate; thus, plaintiff's claim against the estate, never having been adjudicated, was not barred by the unsuccessful suit against the corporation.
3. LIMITATION OF ACTIONS — Non-claims Statute — No Bar — Action Against Estate — Under Exception — Time Limitations — Probate Code — Decedent Protected — Liability Insurance. The non-claims statute does not bar a personal injury action against estate of deceased that falls under the exception to the time limitations of the probate code applicable where the decedent is protected by liability insurance.
Appeal from the District Court of the City and County of Denver, Honorable Joseph N. Lilly, Judge.
William R. Humphrey, P.C., Irvin M. Kent, for plaintiffs-appellants.
Eugene O. Daniels, Wesley W. Hoyt, for defendants-appellees.
Plaintiff Felix R. Vigil was involved in an automobile accident in 1970. The other vehicle was operated by one Frank Lewis and owned by a corporation of which he was president, Lewis Maintenance Service, Inc. In May 1973, Vigil, as sole plaintiff, filed a personal injury action in the Denver District Court against Lewis and the corporation. Lewis died in August of 1973, and in November his estate was opened in Denver Probate Court. In January 1974, defendants' counsel filed a suggestion of death in district court. In April of that year, within 90 days of the suggestion of death, plaintiff moved for and was granted leave to substitute "the Estate of Frank Lewis" as a party defendant in place of the deceased.
That case was set for trial in the district court on February 10, 1975. Prior to the start of the trial, defendants moved to dismiss the claims against deceased for failure to make a timely and proper substitution, i.e., the personal representative of the estate rather than merely the estate. See § 13-20-101(2), C.R.S. 1973; Mills v. Saunders, 30 Colo. App. 462, 494 P.2d 1309 (1972). Before any ruling by the court, plaintiff dismissed the claim against the estate. The trial proceeded with the corporation as the sole defendant. Following presentation of plaintiff's case, the court directed a verdict and dismissed the complaint because plaintiff had failed to prove that the corporation was liable for the acts of its president, the decedent.
Thereafter, on April 8, 1975, a second suit was filed in the district court by Vigil and his wife, who sued for loss of consortium. The defendants were the corporation and the executor of the estate. By agreement, the parties and the court proceeded with the cause under the new Colorado Probate Code, § 15-10-101, et seq., C.R.S. 1973, which became effective July 1, 1974. See § 15-17-101, C.R.S. 1973. Defendants answered and later moved for summary judgment on several grounds. The court granted the motion for summary judgment without specifying the basis for so doing. The dismissal of this second suit is the subject of this appeal.
Plaintiffs' counsel concedes that their claims against the corporate defendant are barred by the prior litigation. However, they contend that their claims against the executor are still viable. We agree with this contention and therefore reverse as to the order that granted summary judgment against the executor, but we affirm as to the judgment dismissing the action against the corporation.
[1] Defendants urge that the trial court properly granted the motion for summary judgment for several reasons. First, they assert that the dismissal by plaintiff Felix Vigil of his action against the improperly designated estate is a bar to filing of a second action, against the executor. We disagree. No comment by counsel or the court was made as to whether the dismissal prior to the trial of the first action was with or without prejudice; thus, by the clear language of C.R.C.P. 41(a)(1), that dismissal was without prejudice. See also Pittman v. Marshall, 99 Colo. 62, 59 P.2d 914 (1936).
Next, defendants contend that since C.R.C.P. 25(a)(1) requires that a motion to substitute parties be made within 90 days of the suggestion of death, and a proper substitution not having been made within that time period, dismissal is required. However, we do not reach the question of whether an improper designation made within the 90 day period meets the requirements of the rule. Rather, we note that the record reveals that the action against the estate was dismissed voluntarily, without prejudice, under C.R.C.P. 41, and not based on failure to make a timely substitution under C.R.C.P. 25. That dismissal may not be considered on this appeal of the second action.
[2] The summary judgment in Felix Vigil's suit against the estate cannot be supported by application of the doctrine of res judicata. Defendants urge that dismissal of his claim against the corporation bars this action against the estate. However, that dismissal was based upon plaintiff's failure to prove that the doctrine of respondeat superior was applicable. Such dismissal is on a basis immaterial to the claims against the estate. Plaintiffs' claims against the estate, never having been adjudicated, are not barred by the unsuccessful suit against the corporation. See Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973); 50 C.J.S. Judgments § 757 at 280.
[3] Also, the non-claims statute, § 15-12-803(1), C.R.S. 1973, does not bar this action. Section 15-12-803(3)(b), C.R.S. 1973, creates an exception to the time limitations of the Probate Code where, as here, the decedent is "protected by liability insurance."
Judgment affirmed as to dismissal of the action against the corporation but reversed as to dismissal of the plaintiffs' claims against the executor, and the cause is remanded with directions to reinstate the complaint against the executor.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.