The Plaintiff Has Died, Who Must Be Notified?

WDC Journal Edition: Summer 2010
By: Aaron J. Graf, SmithAmundsen, LLC

It is not all that uncommon for defense counsel to be faced with the situation in which the plaintiff has died during the course of litigation. A Wisconsin statute permits a continuation of the action through substitution of a new plaintiff, but sets specific procedural requirements – and even a time limit – for any such substitution. This article will describe what the defense should do, and not do, in cases where the plaintiff has died during the pendency of the action.

The Statute

Section 803.10 of the Wisconsin Statutes sets forth the procedures that should be employed when a party has died. It reads as follows:

“803.10. Substitution of parties.

(1) DEATH.

(a) If a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in s. 801.14 and upon persons not parties in the manner provided in s. 801.11 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested on the record by service of a statement of the facts of the death as provided herein for the service of the motion, the action shall be dismissed as to the deceased party.

(b) In the event of the death of one or more of the plaintiffs or of one or more of the defendants in the action in which the right sought to be enforced survives only to the surviving plaintiffs or only against the surviving defendants, the action does not abate. The death shall be suggested upon the record and the action shall proceed in favor of or against the surviving parties.”[i]

Under the statute, if a proper substitution is not accomplished within 90 days after the death is “suggested on the record” (to use the unusual phrase appearing in the statute), the action of the deceased person “shall” be dismissed. Note the statute does not say the dismissal is to be with prejudice. However, if the statute of limitations has run on the deceased person’s claim, any such dismissal should bar further presentation of the claim.

Therefore, when a plaintiff has died, the defense must, to take full advantage of Section 803.10, (1) prepare a proper notice of “Suggestion of Death;” (2) accomplish proper service and filing of the suggestion; and (3) move for dismissal if a substitution is not accomplish within 90 days of the suggestion.

Step 1 – Drafting a Sufficient Suggestion of Death

The first step is of course to draft the Suggestion of Death. No standardized form to be used for the Suggestion of Death is prescribed by the statute or found elsewhere in Wisconsin law. A captioned document stating that the party has died should be sufficient. However, in some cases, a mere letter may be adequate.[ii] The use of a formal, captioned document is the best and safest practice as it will provide the recipient with all initial pertinent information concerning the lawsuit including the parties involved and the venue of the action. While attaching a certified copy of the death certificate is not mandated, doing so is a matter of good practice, and certainly creates an aura of importance which should prompt any recipient of the notice to take action if so inclined.

Step 2 – Serving the Suggestion of Death on Parties and Non-Parties

Once the appropriate Suggestion of Death is drafted, it must be filed with the court and served on both remaining parties and certain non-parties. Remaining parties can be served under Section 801.14 by serving their counsel. While it is true that an attorney’s agency to act on behalf of a client ends with the death of a client[iii], it is appropriate to serve counsel who has appeared in the action for the deceased person.[iv]

As noted, however, serving remaining parties alone is typically not sufficient as non-party successors or representatives of the deceased may also seek substitution. Non-parties must be served in a manner consistent with that of a Summons and Complaint under Section 801.11. Defense counsel therefore must determine what non-parties are to be served with a Suggestion of Death.

There is no statutory listing of what non-parties must be served. The statute says only that “the successors or representatives” of the deceased party must be served. The Wisconsin Supreme Court has stated that a determination as to which non-parties must be served is made on a case-by-case basis.[v] Further, that the goal in such a determination is a balance between protecting the interests of all persons, not unduly burdening the moving party in locating and serving such individuals, and moving the litigation forward.[vi] Courts have also provided additional information as to what may satisfy these requirements depending on the circumstances. For example, courts have held that the notice should be provided to those non-parties to whom the decedent’s rights and interests have passed including any personal representative of the deceased’s estate or the heirs or beneficiaries of that estate.[vii]

If an estate is promptly opened after the death of the plaintiff and the personal representative and the heirs and beneficiaries have been formally determined by a probate court[viii], the defendant’s task is rather easy. All of these individuals can be served with the Suggestion in the manner provided by Section 801.11. However, in some cases, the identity of any possible personal representative or heirs or beneficiaries may not be known at the time defense counsel wants to serve a Suggestion of Death.

When no probate court-approved listing of the successors to the deceased plaintiff’s interest is available, defense counsel should as a matter of good practice make an independent and reasonable effort on his or her own to determine the identity of any likely personal representatives or heirs and beneficiaries. In so doing, defense counsel should talk to decedent’s attorney, monitor the consolidated court automated program (CCAP) to see what probate filings have been made, manually check court probate files for names of potential successors, and consult published obituaries or funeral home notices for a listing of persons who may be potential successors. If the deposition of the plaintiff has been taken, or if medical records or other records have been obtained showing family history or relationships, those documents may provide an additional listing of “successors” to the plaintiff’s claim. Also, if the defense counsel has knowledge that a will has been prepared, then that will should be consulted, if possible, to determine the identity of a person who has been given any cause of action that was owned by the plaintiff at the time of his or her death. That person is truly the successor to that claim, and must be given notice.

While it may be difficult to determine with precision who the “successors or representatives of the deceased party” will turn out to be, the best practice is to cast a wide net and serve the Suggestion of Death on those persons who may fall into such category of successors or representatives. There should be no penalty for serving a Suggestion of Death on a non-party who is not in fact a successor or representative of the deceased plaintiff.

Step 3 – Seeking Dismissal In The Absence of a Timely Substitution

If no motion for substitution is made within the 90 days of proper service of the Suggestion of Death on parties and non-parties, the case “shall be dismissed” as to the claim of the deceased parties, or so says Section 803.10(1)(a). However, the reality is that courts have wide discretion in determining whether dismissal is appropriate under Section 803.10(1).[ix] In filing a motion to dismiss under Section 803.10(1) defense counsel should consider also filing a detailed affidavit setting forth the efforts which were undertaken to serve parties and non-parties alike in order to provide the court with the necessary information to evaluate whether a dismissal under Section 803.10(1) is appropriate in those circumstances. In determining whether dismissal is appropriate a court will consider: (1) whether non-parties who may have an interest have been served, (2) how substantial is the burden on the moving party to identify and serve such non-parties, and (3) whether service on these non-parties protects the courts and parties’ interests in a fair and expeditious resolution.[x]

In addition to arguments propounded by opposing counsel regarding the above three factors, defense counsel is also likely to encounter an argument for extension of time under Section 801.15(2)(a). This statute allows a court to grant an extension of time for good cause prior to the running of the deadline and for excusable neglect after the running of the deadline. If defense counsel heeds the above advice concerning drafting and serving the Suggestion of Death on all parties, and non-parties discovered during a reasonable investigation, it will diminish the possibility of a court determining the failure to substitute was due to excusable neglect and this will diminish the likelihood of such an extension.

CONCLUSION

The Suggestion of Death statute benefits claimholders and defendants alike. It provides a window for successor claimholders to assert their rights in lieu of a deceased party. It also gives the defendant a way of dismissing claims which are not being pursued and allows a relatively prompt resolution to such matters. If one carefully follows the statute, and exercises diligence in drafting, filing and serving appropriate individuals, defense counsel can fully protect the interests of their client.


[i] Wis. Stat. § 803.10(1)(a) is nearly identical to Fed. R. Civ. P. 25(a)(1) and federal precedents may have value in interpreting the Wisconsin Statute. See Wick v. Waterman, 143 Wis. 2d 676, 679, 421 N.W.2d 872,873 (Ct. App. 1988).

[ii] Wheeler v. General Tire & Rubber Co., 142 Wis. 2d 798, 419 N.W.2d 331 (Ct. App. 1987).

[iii] Schwister v. Schoenecker, 2002 WI 132, ¶ 28, 258 Wis. 2d 1, 19, 654 N.W.2d 852, 862.

[iv] See e.g., Yonofsky v. Wernick, 362 F. Supp. 1005 (S.D.N.Y. 1973); Chobot v. Powers, 169 F.R.D. 263 (W.D.N.Y. 1990) both of which found that, in those circumstances, service on the deceased’s attorney was sufficient notice.

[v] Schwister, 2002 WI 132, ¶¶ 43-44.

[vi] Id.

[vii] Schwister, 2002 WI 132, ¶ P33.

[viii] Wisconsin courts have suggested that one is not required to wait until a personal representative is named in order to serve a Suggestion of Death as this would delay proceedings for an inordinate amount of time. Schwister, 2002 WI 132, ¶ 27.

[ix] Schwister, 2002 WI 132, ¶ 28.

[x] Schwister, 2002 WI 132, ¶ 28.