What happens when the plaintiff (the injured person) or the defendant (the person accused of causing the injury to the plaintiff) dies during the pendency of a personal injury lawsuit?

Facts.  Derrick Defendant loses control of his truck and smashes into the car driven by Phil Plaintiff. Both parties are seriously injured in the accident. Thereafter, Phil Plaintiff engages a personal injury attorney and files a complaint with the court naming Derrick Defendant as the defendant in the lawsuit.

What happens when Phil Plaintiff dies before the resolution of his personal injury lawsuit against Derrick Defendant? If Phil dies from the injuries caused by the automobile accident, then Phil’s surviving spouse, domestic partner, children, and descendants of deceased children or the executor of Phil’s estate may be substituted into the matter as the new plaintiff or plaintiffs. The new plaintiff or plaintiffs will then amend Phil’s existing complaint to add a cause of action against Derrick for Phil’s wrongful death.

If, however, Phil’s death is not related to the injuries from the automobile accident, no cause of action for wrongful death may be asserted against Derrick. Phil’s executor (or if there is no executor, then Phil’s successor in interest) may be substituted in as the new plaintiff to prosecute the lawsuit. Note that following Phil’s death, the new plaintiff may seek damages sustained by Phil before his death, but may not seek damages for pain, suffering or disfigurement.

What happens when Derrick Defendant dies before the resolution of the personal injury lawsuit filed by Phil Plaintiff? If Derrick dies during the pendency of the lawsuit, generally Phil (or the new plaintiff, if Phil is deceased) must substitute Derrick’s executor (or if there is no executor, then Derrick’s successor in interest) as the new defendant in the lawsuit. To substitute Derrick’s executor into the lawsuit, Phil must: (1) file a timely creditor’s claim in Derrick’s probate estate; (2) the creditor’s claim must be rejected in whole or in part; and (3) within three months after notice of rejection is provided by Derrick’s executor (or after the creditor’s claim is deemed rejected 30 days after filing), Phil applies to the court for an order to substitute Derrick’s executor in place of Derrick as the defendant in the lawsuit. However, Phil does not have to go through the process of substituting Derrick’s executor (or if there is no executor, then his successor in interest) as a new defendant in the lawsuit if Derrick’s liability was protected by insurance (e.g., automobile insurance) and Phil is willing to limit his potential recovery in the lawsuit to the insurance policy coverage. For example, if Derrick’s insurance policy covers $500,000 in damages and Phil estimates his damages to be $450,000, Phil can recover all of his damages from Derrick’s insurance policy. But, if Phil’s damages are $1,000,000, then Derrick’s $500,000 insurance policy is insufficient to cover all of Phil’s damages. Under this circumstance, Phil should substitute in the executor of Derrick’s probate estate as the new defendant so that Phil may recover his damages from both the assets in Derrick’s probate estate and Derrick’s insurance policy.

If you would like to discuss this or other trusts and estates issues, please contact the attorneys at Drucker Law Offices, 468 North Camden Drive, 2nd Floor, Beverly Hills, CA 90210, 310.285.5375 Tel, 310.444.9754 Fax, www.druckerlaw.com