Opinion
W.C. No. 4-746-724.
October 7, 2009.
ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated June 5, 2009 that dismissed the claim against a deceased employer. We modify the order to reflect that the dismissal of the claim was without prejudice and we otherwise affirm the order.
A hearing was held on the issue of whether the ALJ had jurisdiction over a claim against the estate of Lorene I. Wherry. The claimant was employed by Wherry prior to Wherry's death. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. A hearing was scheduled for July 31, 2008 pursuant to the claimant's application for hearing. On August 5, 2008 ALJ Broniak struck the claimant's application for hearing for her failure to comply with an order compelling discovery responses. The employer, Lorene Wherry, died on December 8, 2008, and the claimant had not moved to substitute the personal representative in this matter. On December 17, 2008 a notice of Wherry's death was filed and served on the claimant. On January 27, 2009 the claimant filed another application for hearing naming as the respondent the "Estate of Lorene Wherry." The ALJ further found that a hearing was held on May 5, 2009 and that based upon that record the ALJ found here that the claimant had not then complied with the order entered by ALJ Broniak compelling discovery. A notarized affidavit from the registrar of the Denver Probate Court was filed that states that as of April 10, 2009, which is more than 90 days from the date of the notice of Wherry's death, no personal representative had been identified or appointed.
Based upon her factual findings, the ALJ concluded that the claimant had not named a party over whom the ALJ had jurisdiction. She concluded that only the personal representative may be a party after the death of a litigant, and the absence of a personal representative or any other entity with the capacity to act as respondents was fatal to the ALJ's jurisdiction. Accordingly, she dismissed the claim with prejudice.
The claimant appealed the ALJ's order dismissing the claim, and generally argues that the ALJ erred in not adjudicating her entitlement to certain benefits. As we understand the claimant's brief, she also argues that the "estate of Lorene Wherry" is properly an entity against which she could proceed with her workers' compensation claim, and that the decedent's sons were properly named the personal representatives of the estate.
First, we perceive no error in the ALJ's dismissal of the claim against the "estate" of the decedent. As we understand the ALJ's order, she concluded that the "estate" was not an entity with the capacity to appear, defend the claim, and pay any benefits adjudicated. Rather, the ALJ concluded that a personal representative must appear for those purposes. The Colorado Court of Appeals has observed that litigation requires a "controversy," which in turn requires actual adverse parties. The court stated:
As our supreme court noted in People in Interest of R.D.S., 183 Colo. 89, 514 P.2d 772 (1973): `A party is more than one named on a petition or complaint. To be a true party, that person must be competent to sue, have the right to control the proceedings, to defend, to adduce and cross-examine witnesses, and to appeal in his own right.' Thus actions may be brought only by legal entities and against legal entities. There must be some ascertainable persons, natural or artificial, to whom judgments are awarded and against whom they may be enforced. Barker v. District Court, 199 Colo. 416, 609 P.2d 628 (1980).
Jenkins v. Estate of Thomas, 800 P.2d 1358, 1359 (1990) (decedent was not a proper defendant where he was dead at the time the action was filed). In our view the court's statement is equally applicable to this administrative action seeking workers' compensation benefits. We perceive no error in the ALJ's conclusion that the "estate" of the former employer was not an entity that was properly named to respond to the claim for benefits. See Heuschel v. Wagner, 73 Colo. 327, 215 P. 476 (1923). Moreover, it appears undisputed that no personal representative, executor, or other person appeared on behalf of the estate. (It is apparently also undisputed that the attorney for the deceased employer did not purport to represent the estate. Although he designated himself an amicus curiae, we are unfamiliar with any procedure permitting the attorney of a former party to appear in that capacity in a workers' compensation hearing. Nonetheless, no transcript of the hearing has been prepared and we therefore cannot review the procedures applied by the ALJ, nor have we the benefit of any discussion on the record regarding the attorney's appearance as an "amicus curiae." However, as noted, his representation of the employer ended with her death and although the record indicates that he apparently took some actions following the employer's death, he has not purported to represent the estate. See Fariss v. Lynchburg Foundry, 769 F.2d 958 (4th Cir. 1985) (representation ends at death of client).) Since no party was present at the hearing properly joined as a respondent, the ALJ did not err in dismissing the claim. See Mills v. Saunders, 30 Colo. App. 462, 494 P.2d 1309 (1972) (the proper party to be substituted on the death of a party is the administrator of the decedent's estate); First National Bank v. Hotchkiss, 49 Colo. 593, 114 P. 310 (1911) (action against a decedent may not be further prosecuted until substitution of the administrator). See § 15-12-104, C.R.S. 2009 (no claim may be presented and no proceeding to enforce a claim against the estate of a decedent . . . may be revived or commenced before the appointment of a personal representative . . .).
However, in our view the ALJ erred in dismissing the claim "with prejudice." The ALJ purported to dismiss the claim pursuant to Colorado Rule of Civil Procedure 25(a)(1), which provides that "[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties." The rule then specifies the procedures to be used for substitution of parties following the death, requiring service of a motion to substitute parties: "The motion for substitution may be made by any party . . . and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of process, and may be served in any county. Suggestion of death upon the record is made by service of a statement of the fact of death as provided herein for the service of the motion and by filing of proof thereof." The rule further provides that the motion must be made within ninety days of the suggestion of death: "If the motion for substitution is not made within ninety days after such service, the action shall be dismissed as to the deceased party."
It is true that the Office of Administrative Court's Procedural Rules for Workers' Compensation Hearings provide for the applicability of the Colorado Rules of Civil Procedure under some circumstances: "The Colorado Rules of Civil Procedure apply to Workers' Compensation hearings unless they are inconsistent with these rules and the provisions of the Workers' Compensation Act." OAC Rule 2.B. However, it is important to note that the provisions of C.R.C.P. 25(a)(1) are procedural. Duke v. Pickett, 30 Colo. App. 438, 494 P.2d 120 (1972). Indeed, the OAC rules make clear at the outset that they are all procedural in that they apply only to the adjudicative portion of the agency proceedings during which hearings are sought and held: "These rules apply to procedural orders and hearings pursuant to the Workers' Compensation Act of Colorado, Articles 40 to 47 of Title 8, C.R.S. from the date an Application for Hearing and Notice to Set is filed until the application is stricken or withdrawn, or until a hearing is held, order issued and the time to file a Petition to Review has run, or, if a Petition to Review is filed, until the file is transmitted to the Industrial Claim Appeals Office." Thus, the rules are procedural in nature and their applicability is limited in time to the adjudicative phase of the workers' compensation proceedings. In our view, the joinder of proper parties or the substitution of parties in a workers' compensation proceeding is in this case an issue broader than the adjudicative phase and implicates the authority of the Director of the Division of Workers' Compensation to administer the Act.
The effect of a dismissal with prejudice is to end all litigation with respect to the cause of action. Dismissal of a suit "with prejudice" therefore bars any later suit on the same claim. Lawlor v. National Screen Service Corp., 349 U.S. 322, 75 S.Ct. 865 (1955). Further, a dismissal with prejudice is an adjudication on the merits of the action and precludes the party from further prosecution of the claim. O'Done v. Shulman, 124 Colo. 445, 238 P.2d 1117 (1951). However, we note that the time for seeking substitution of a party may be extended, even under C.R.C.P. 25(a)(1). Smith v. Bridges, 40 Colo. App. 171, 574 P.2d 511 (1977). Additionally, even absent a motion seeking additional time to submit an amended motion for substitution, the court may appoint a proper personal representative such as the public administrator. Id; see also, § 15-12-704(4), C.R.S. 2009 (except for proceedings not surviving decedent's death, personal representative has same standing to sue or be sued as decedent immediately prior to death). We also note that the Director has enacted no rule providing for the "dismissal with prejudice" of a claim for workers' compensation. Rather, the applicable rules address the "closure" of claims: "A claim may be closed by order, final admission, or pursuant to paragraph (C) of this section." Workers' Compensation Rule of Procedure 7(A). Claims that are closed are, of course, subject to the reopening provisions of § 8-43-303, C.R.S. 2009.
Finally, we cannot ascertain from the record before us what related proceedings, if any are pending in the court with jurisdiction over the decedent's estate. We note that that court "has full power to make orders, judgments, and decrees and take all other action necessary and proper to administer justice in all matters which come before it." Section 15-10-302(2), C.R.S. 2009. This workers compensation proceeding would appear to constitute a potential "claim" against the decedent's estate. See § 15-10-201(8), C.R.S. 2009 (claim is defined as any liability of the estate arising at or after the death of the decedent "whether arising in contract, in tort, or otherwise . . ." (emphasis added).) See also § 15-12-105, C.R.S. 2009 (persons interested in decedent's estate may apply to the registrar for determination in the informal proceedings or may petition the court for orders in formal proceedings).
Under the peculiar circumstances of this case, in our view, the effect of the ALJ's order was properly to have dismissed the claimant's hearing against the "estate" in the absence of the personal representative. However, the claim itself should not have been "dismissed with prejudice." Rather, it should have been dismissed without prejudice and therefore subject to whatever further proceedings the claimant deems appropriate to perfect her claim against the estate. See Currier v. Sutherland, P.3d (Colo. App. No. 07CA1263 June 12, 2008) cert. granted (Colo. December 2, 2008) (court has subject matter jurisdiction where deceased individual and therefore non-existent party was named as defendant when the suit was originally filed).
IT IS THEREFORE ORDERED that the ALJ=s order dated June 5, 2009, is modified to reflect that the claim is dismissed without prejudice.
IT IS FURTHER ORDERED that the ALJ's order dated June 5, 2009 is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________
John D. Baird
______________________________
Curt Kriksciun
Examiner Schrant dissents in part.
I agree with the majority order in affirming the dismissal of the claim against the "estate" on the ground that no personal representative or other individual was present on behalf of that entity. However, in my view the ALJ did not err in dismissing the claim "with prejudice."
The ALJ dismissed the claim pursuant to Colorado Rule of Civil Procedure 25(a)(1), which provides that "If the motion for substitution is not made within ninety days after such service, the action shall be dismissed as to the deceased party." Office of Administrative Court's Procedural Rules for Workers' Compensation Hearings generally provide for the applicability of the Colorado Rules of Civil Procedure unless they are inconsistent with these rules and the provisions of the Workers' Compensation Act. OAC Rule 2.B. Here it appears undisputed that the claimant did not seek to substitute the personal representative within the time set forth in C.R.C.P. 25(a)(1). Thus, I perceive no reversible error in the ALJ's application of C.R.C.P. 25(a)(1) in this matter.
I note that the "Director" along with ALJs have original jurisdiction to hear and decide all matters arising under the Workers' Compensation Act (Act). Section 8-43-201, C.R.S. 2009; see Giddings v. Industrial Claim Appeals Office 39 P.3d 1211 (Colo. App. 2001); Cornerstone Partners v. Industrial Claim Appeals Office, 830 P.2d 1148 (Colo. App. 1992). The Director and ALJs share the same powers in connection with hearings concerning any controversy over any issue under the Act, and both may issue orders. Section 8-43-207(1)(k), C.R.S. 2009. In my view the ALJ had the authority to and did properly dismiss the claim, subject to the reopening provisions of § 8-43-303, C.R.S. 2009.
ANN M KNIGHT, 16902 E GREENWOOD CIRCLE, AURORA, CO, (Claimant).
THOMAS POLLART MILLER LLC, Attn: BENJAMIN P KRAMER ESQ, GREENWOOD VILLAGE, CO, (For Respondents).