When a defendant dies during litigation, there are specific procedural requirements that allow a plaintiff to continue the case. Specifically, when a defendant dies while a personal injury lawsuit is pending, the Plaintiff must choose to proceed under one of two methods. One of the two ways a plaintiff may choose to continue an action is by proceeding against the deceased defendant’s personal representative or against the deceased defendant’s successor in interest. This is found in California Code of Civil Procedure section 377.40 through 377.43. When a plaintiff chooses to pursue their claim against the deceased defendant in this way, they must also show compliance with Part 4 of Division 7 of the California Probate Code governing creditor claims. As it pertains to potential damages when this method is utilized by the Plaintiff, there is no limit to the amount the plaintiff can potentially recover at trial.

If the deceased defendant was protected by insurance at the time of their death, the plaintiff may choose to proceed with their lawsuit against the deceased defendant through California Probate Code section 550 through 555. When a plaintiff chooses to pursue their claim against the deceased defendant in this manner, they do not have to show compliance with Part 4 of Division 7 of the California Probate Code governing creditor claims. However, when these code sections are utilized by the plaintiff, the amount the plaintiff can potentially recover at trial is capped at the limits and coverage of the insurance policy in effect at the time of the accident giving rise to the suit.

Recently, there have been a multitude of articles written by plaintiff’s lawyers suggesting that a third method to continue a personal injury lawsuit against a deceased defendant exists. These articles suggest that California Probate Code section 13550 through 13554 can be used as a procedural method to continue a pending personal injury lawsuit against the surviving spouse of a deceased defendant. The articles further contend that use of this method does not require having to show compliance with Part 4 of Division 7 of the California Probate Code governing creditor claims while simultaneously not limiting the plaintiff to the limits and coverage of an insurance policy. Essentially, plaintiff’s lawyers suggest that utilizing this “third method” gives a plaintiff the best of both worlds.

The code section specifically relied on by plaintiff’s lawyers is California Probate Code section 13550. This code section states, “Except as provided in Sections 11446, 13552, 13553, and 13554, upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the property described in Section 13551 to the extent provided in Section 13551.” Plaintiff’s lawyers further rely on the case of Collection Bureau of San Jose v. Rumsey (2000) 24 Cal.4th 301 to make their assertion that a personal injury lawsuit can be continued against a deceased defendant’s surviving spouse using California Probate Code section 13550.

Rumsey involved a surviving spouse that was sued almost four years after his deceased spouse died. The suit involved a plethora of unpaid medical bills which the deceased spouse left behind when she passed away. However, in Rumsey, the sole issue before the California Supreme Court was whether the limitations period of former California Code of Civil Procedure section 353 or California Code of Civil Procedure section 337 applied to collection of the deceased spouse’s unpaid debt.

Plaintiff’s lawyers assume the word debt in California Probate Code section 13550 can be interpreted to mean disputed and unliquidated claims, such as pending lawsuits. However, nowhere in Division 8, Part 2, or Chapter 3, of which California Probate Code section 13550 is included, is debt defined to mean the same. Plaintiff’s lawyers further state that Rumsey stands for the notion that a surviving spouse steps into the shoes of a deceased defendant under California Probate Code section 13550, allowing them to continue a lawsuit against the surviving spouse. However, Rumsey’s discussion of California Probate Code section 13550 is limited and largely surrounds the code section’s effect on which statute of limitations should apply to the collection of the subject debt. Nowhere in Rumsey does it state or suggest that California Probate Code section 13550 can be used as a procedural means to DOE-in a surviving spouse of a deceased personal injury defendant in order to continue a lawsuit for negligence.

This issue of whether California Probate Code section 13550 can be used a procedural means to continue a personal injury lawsuit against the surviving spouse of a deceased defendant was recently litigated. Defense Attorneys Marvin J. Straus, Esq. and Anthony J. Puzo, Esq. of Straus Meyers, LLP, filed a Demurrer to Plaintiff’s Amendment to Complaint which named the surviving spouse of a deceased defendant that had passed away roughly two months before trial. On opposition, the plaintiff made the argument that Probate Code section 13550 allowed him to continue the pending lawsuit against the surviving spouse of the deceased defendant, also relying on Rumsey. In their reply, Defense counsel presented the argument that California Probate Code section 13550 and Rumsey did not give Plaintiff the procedural means to continue his suit against the surviving spouse. Specifically, Defense counsel raised the argument that debt as used in California Probate Code section 13550 is not defined to mean disputed and unliquidated claims, such as pending lawsuits. Defense counsel also highlighted how Rumsey was a highly distinguishable case from the situation at hand and how its discussion of California Probate Code section 13550 was limited and off point.

The court sustained the Demurer to Plaintiff’s Amendment to complaint without leave to amend in an 8-page tentative ruling, which was adopted as the official ruling of the court. That said, it is not yet clear whether this issue will ever be taken up on appeal and how court of appeal will decide the possible procedural usages of California Probate Code section 13550. However, to the chagrin of plaintiff’s lawyers, the ruling of the trial court tends to demonstrate that California Probate code section 13550 does not offer a third means to continue a personal injury lawsuit against the surviving spouse of a deceased defendant.