Opinion
A151056
05-03-2018
REBECCA VON BEHREN, Plaintiff and Appellant, v. ESTATE OF RAYMOND H. DAVISON, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG15797427)
Plaintiff Rebecca Von Behren (plaintiff) appeals from a summary judgment granted in favor of defendant Estate of Raymond H. Davison (sometimes referred to as "the Estate"), based on the statute of limitations contained in Code of Civil Procedure section 366.2 (hereafter "section 366.2"). We reverse. The limitations period prescribed by section 366.2, which requires actions against a decedent to be brought within one year from the date of death, does not apply to claims for which the decedent carried insurance. (Prob. Code, § 550 et seq.)
I. BACKGROUND
On December 29, 2013, plaintiff was injured when the vehicle in which she was riding was struck by a car driven by 91-year-old Raymond H. Davison. Davison was the holder of an automobile insurance policy underwritten by State Farm Insurance (number 0911-287-05B), which had policy limits of $15,000 for any single injury and $30,000 for any one incident.
Davison reported the accident to State Farm on the day it occurred, and voluntarily cancelled his insurance policy effective January 14, 2014, because he was no longer driving. Davison died on February 25, 2014, for reasons unrelated to the accident.
Plaintiff retained counsel (Alexsis C. Beach), who notified State Farm of plaintiff's personal injury claim on February 4, 2014. Correspondence between State Farm and plaintiff's counsel continued over the next several months, with neither side being aware that Davison had died. State Farm repeatedly requested documentation of the claim (medical bills, records and reports) from plaintiff's counsel, but apparently did not receive the information.
The Estate submitted unrebutted evidence showing State Farm did not know Davison had died during the time it was negotiating plaintiff's claim. The office manager of the State Farm agent who handled Davison's policy submitted a declaration stating that their office had no communications with Davison after he cancelled his policy in January 2014 because he was no longer a State Farm insured. A State Farm claims specialist who reviewed the file on the plaintiff's claim submitted a declaration stating that State Farm had written to Davison on January 22, 2014, to advise him it had determined he was at least 51 percent at fault for the accident, but there was no response to this letter. Correspondence was also sent to Davison on July 21 and July 25, 2015, but no response was received and the letters were not returned as undeliverable. According to the claims specialist's declaration, State Farm's receipt of plaintiff's creditor claim against Davison's estate in December 2015 (see below) was the first indication State Farm had that its former insured was deceased.
On April 26, 2015, plaintiff sent State Farm a handwritten letter stating she had fired her attorney because she was frustrated with the length of the settlement process. She provided additional details about her injuries and offered to settle for the full amount of Davison's insurance coverage so long as the amount was tendered within 30 days. State Farm responded on May 20, 2015, advising plaintiff it needed a letter from her former attorney regarding any lien on the settlement.
Plaintiff retained new counsel (Richard Alexander) on July 23, 2015, who contacted State Farm on that same date and was advised that the claim was still under investigation. Shortly thereafter, counsel learned through the Department of Motor Vehicles that Davison had died and determined that no estate had been opened after his death. On August 25, 2015, State Farm sent a letter to counsel offering the $15,000 policy limits to settle plaintiff's claims. Counsel believed State Farm's delay in tendering its policy limits exposed it to liability in excess of those limits.
Because counsel could locate no heir who was willing to act as a personal representative, he opened an estate in probate court in Davison's name "for the purposes of naming Davison's estate as the party defendant in plaintiff's personal injury action." An employee of counsel's law firm (Laura M'Guinness) was appointed special representative of the estate "for sole purpose of accepting service." Letters of special administration were issued on December 18, 2015, and were set to expire on December 28, 2015. Plaintiff served a creditor's claim against the Estate that same day, which the special administrator tendered to State Farm.
On December 21, 2015, plaintiff, through her counsel of record, filed a complaint for personal injury naming "Estate of Raymond H. Davison, deceased, by his personal representative, Laura M'Guinness" as the defendant. A first amended answer to the complaint was filed on May 26, 2016, on behalf of "Estate of Raymond H. Davison." The sixth affirmative defense in that pleading averred that plaintiff's complaint was barred by the statute of limitations set forth in section 366.2, and the seventh affirmative defense asserted that recovery under the complaint was limited by the provisions of Probate Code sections 551 and 554.
The Estate filed a motion for summary judgment on the ground that plaintiff's action was barred by section 366.2, subdivision (a), which provides, "If a person against whom an action may be brought on a liability of the person, whether arising in contract, tort, or otherwise, and whether accrued or not accrued, dies before the expiration of the applicable limitations period, and the cause of action survives, an action may be commenced within one year after the date of death, and the limitations period that would have been applicable does not apply." The Estate presented evidence that Davison had died on February 24, 2014, more than a year before the complaint was filed.
Plaintiff opposed the motion for summary judgment, arguing (1) because Davison had no assets other than the State Farm insurance policy, the purpose behind the shortened limitations period of section 366.2 (to protect estates and distributees from stale creditor claims) was not served in this case; (2) State Farm was equitably estopped from asserting the shortened statutory period because it had concealed the fact of Davison's death from her during their negotiations(see fn. 1, p. 2); and (3) Probate Code section 550 allows an action against a decedent to the extent the claim is covered by insurance, and such claims are not subject to the one-year-from-date-of-death limitations period of section 366.2.
The trial court granted the motion and entered a judgment of dismissal in favor of the Estate.
II. STANDARD OF REVIEW
A motion for summary judgment is properly granted when the moving papers establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., 437c, subd. (c); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) We review an order granting summary judgment de novo. (Saelzler v. Advanced Group (2001) 25 Cal.4th 763, 767.) Where the uncontradicted facts are susceptible of only one legitimate inference, a statute of limitations question may be resolved as a matter of law. (International Engine Parts, Inc. v. Fedderson & Co. (1995) 9 Cal.4th 606, 611.)
III. DISCUSSION
Plaintiff argues the summary judgment must be reversed because the limitations period of section 366.2 does not apply to actions against a decedent that are covered by insurance. We agree.
Plaintiff's complaint, filed December 21, 2015, seeks damages for personal injuries negligently caused in a motor vehicle accident that occurred on December 29, 2013. Ordinarily, her action would be subject to the two-year statute of limitations contained in Code of Civil Procedure section 355.1, and would be timely because it was filed within two years of the date of the accident, i.e., by December 29, 2015. (See Litwin v. Estate of Formela (2010) 186 Cal.App.4th 607, 618-619.)
In this case, however, Davison died on February 24, 2014, while plaintiff's claims were still pending. Subject to certain exceptions, a cause of action against a decedent that existed at the time of death must be brought "within one year after the date of death." (§ 366.2, subd. (a); Bradley v. Breen (1999) 73 Cal.App.4th 798, 800 (Bradley).) The Estate successfully argued below that plaintiff's complaint was untimely because it was not filed within one year of Davison's death, i.e, by February 24, 2015. We disagree, because it is undisputed that Davison carried automobile insurance covering the accident, and one exception to section 366.2 is that it "does not apply to actions on insured claims." (Bradley, at p. 803.)
"[A]n action to establish the decedent's liability for which the decedent was protected by insurance may be commenced or continued against the decedent's estate without the need to join as a party the decedent's personal representative or successor in interest." (Prob. Code, § 550, subd. (a).) "Notwithstanding Section 366 .2 of the Code of Civil Procedure, if the limitations period otherwise applicable to the action has not expired at the time of the decedent's death, an action under this chapter may be commenced within one year after the expiration of the limitations period otherwise applicable." (Prob. Code, § 551, italics added.) The expiration period "otherwise applicable" to plaintiff's claims, as previously noted, was the two-year period under Code of Civil Procedure section 335.1, and it would not have expired until December 29, 2015. Plaintiff was required to file an action under Probate Code section 550 within one year of this date, i.e., by December 29, 2016. Her complaint, filed on December 21, 2015, was timely to the extent it sought the proceeds of the State Farm insurance policy.
The Estate argues that because plaintiff elected to open an action in probate court and seek the appointment of a representative of the estate, she never actually brought an action falling under Probate Code section 550. We disagree. An action seeking insurance proceeds under Probate Code section 550 "shall name as the defendant, 'Estate of (name of decedent), Deceased.' Summons shall be served on a person designated in writing by the insurer or, if none, on the insurer. Further proceedings shall be in the name of the estate, but shall otherwise be conducted in the same manner as if the action were against the personal representative." (Prob. Code, § 552, subd. (a).) "The remedy provided in this chapter is cumulative and may be pursued concurrently with other remedies." (Prob. Code, § 550, subd. (b).)
Here, the complaint named "Estate of Raymond H. Davison, deceased, by his personal representative, Laura M'Guinness" as the defendant. M'Guinness had at that time been appointed temporarily as a special representative of the estate for the sole purpose of accepting service. When M'Guinness was served with plaintiff's creditor's claim, she tendered that claim to State Farm. The record does not reflect whether M'Guinness similarly tendered the summons and complaint to State Farm after she was served with the complaint, but both the original answer and the first amended answer were filed in the name of "Estate of Raymond H. Davison," not in the name of M'Guinness as a representative of the Estate. (See Code Civ. Proc., § 377.40 [cause of action against a decedent that survives may be asserted against decedent's personal representative].)
In April 2016, the probate court issued letters of administration appointing M'Guinness the administrator of Davison's estate.
The general appearance of the Estate alone was "equivalent to personal service of summons on such party." (Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147.) This, in turn, was tantamount to a proceeding against an estate under Probate Code section 550, because apart from the procedure to establish the liability of a decedent who is protected by insurance under that provision, "[a]n 'estate' is not a legal entity and it is neither a natural nor an artificial person. It is merely a name to indicate the sum total of the assets and liabilities of a decedent . . . . [Citations.]" (Estate of Bright v. Western Airlines (1951) 104 Cal.App.2d 827, 829.) Moreover, the first amended answer to the complaint asserts as an affirmative defense that plaintiff's recovery was limited by Probate Code section 551, which sets forth the limitations period for an action against the proceeds of an insurance policy under Probate Code section 550, and Probate Code section 554, which provides that an action under Probate Code section 550 is limited to insurance policy limits unless the decedent's personal representative is joined as a party and the plaintiff files a complaint against the estate. It is disingenuous for the Estate to suggest that plaintiff's suit does not encompass the remedy available under Probate Code section 550 et seq., or that she is now precluded from seeking recovery against the insurance policy to the extent permitted by those provisions.
But while we agree with plaintiff that the provisions of Probate Code section 550 et seq. rendered summary judgment inappropriate, this does not mean she can recover amounts in excess of the $15,000 policy limits. The judgment in an action under Probate Code section 550 cannot exceed the limits of insurance coverage unless the representative of the estate has been joined as a party and a claim against the estate has been filed. (Prob. Code, § 554; In re Estate of Prindle (2009) 173 Cal.App.4th 119, 129.) Any action against the personal representative of Davison's estate for amounts in excess of the insurance policy limits is barred by the statute of limitations for claims not covered by insurance, which expired one year after Davison's death, on February 26, 2015. (Code Civ. Proc, § 366.2, subd. (a); see Bradley, supra, 73 Cal.App.4th at pp. 803-805.)
The creditor's claim submitted by plaintiff of December 21, 2015, was filed after the expiration of the one-year period under section 366.2 and did nothing to extend that period. Although a timely creditor's claim filed within the one-year period of section 366.2 may toll the limitations period, a creditor who does not file a claim within the one-year period is forever barred from asserting that claim. (Dobler v. Arluk Medical Center Industrial Group, Inc. (2001) 89 Cal.App.4th 530, 535-536.) --------
In light of our conclusion that plaintiff's claims under Probate Code section 550 et seq. are properly before the court and are not barred by the statute of limitations, we need not decide whether State Farm is equitably estopped from asserting that any such claim is untimely. (See Bradley, supra, 73 Cal.App.4th at pp. 802-803; Battuello v. Battuello (1998) 64 Cal.App.4th 842, 847-848.)
IV. DISPOSITION
The judgment of dismissal is reversed. Costs are awarded to plaintiff/appellant.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, ACTING P.J. /s/_________
BRUINIERS, J.