The Western Section of the Tennessee Court of Appeals recently considered the legal significance of a plaintiff predeceasing the filing of his Complaint.

In McCormick v. Illinois Central Railroad Co., No. W2008-00902-COA-R9-CV (Tenn. Ct. App., May 19, 2009)(copy below), the Court of Appeals was asked to determine whether the trial court erred in allowing the executor of the plaintiff’s estate to be substituted as the party plaintiff where the party plaintiff died before suit was filed in his individual capacity. John McCarroll was the Trial Judge; Christopher Gilreath represented the plaintiff; and Thomas Peters, Michael Hermann, and Beth Rainwater represented the defendant.

The Court of Appeals held the commencement of litigation in the name of a deceased party individually is a legal nullity. The Court also held substitution of parties is impermissible; the statutes and rules relied upon by the plaintiff contemplate substitution of parties who die after suit was commenced in their own names.

Addressing plaintiff’s contention that defendant waived its argument by not moving to dismiss until after the filing of an Answer, the Court held "an objection based on the fact that the plaintiff was deceased when the complaint was filed can be raised at any time during the proceedings, in any appropriate manner, and such objection ‘stops the cause at whatever stage it may be, whenever made known to the court.’"

Comment: This case should have impact on LTC cases where this occurs. We have previously raised similar arguments where the resident had passed away before the lawsut was filed, the suit was brought in the resident’s name and later it was attempted to substitute a family member.

Author: Larry Brock and Ryan Malone from Chambliss Bahner & Stophel

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