A Dead Person Cannot Bring Suit

Repko v. Our Lady of Lourdes Medical Center, Inc., 464 N.J. Super. 570 (App. Div. 2020). Judge Accurso’s brief opinion in this case today addressed a “question [that] appears to be one of first impression in New Jersey”: whether a decedent’s estate can apply Rule 4:9-3, the “relation back” rule, to a complaint that was not filed until after the plaintiff in the case had already died. The answer was “no.”

Judge Accurso rightly observed that “the timeline is everything in this case,” so here it is. In September 2016, Carolyn Repko fell on the steps of the defendant hospital and sustained injuries. Three days later, she retained counsel to sue on her behalf.

Repko died in December 2017, from causes unrelated to her fall. Her counsel, unaware that she had died, filed suit in her name in September 2018, shortly before the statute of limitations expired. In February 2019, counsel learned that she had died, and later in 2019, counsel got agreement from her son to continue the case. Repko’s will had been admitted to probate in March 2018, and letters testamentary had been issued to her son at that time.

Counsel sought to amend the complaint, but Lourdes would not consent to that. Cross-motions, to amend the complaint and to dismiss it since it was a nullity when filed, were submitted. The Law Division allowed amendment. The Appellate Division granted Lourdes leave to appeal and reversed, applying de novo review to the question of law presented.

Judge Accurso viewed the issue as “simply one of standing, defined by the Connecticut Supreme Court as ‘the legal right to set judicial machinery in motion'” (citation omitted). Plaintiff conceded that “a dead person cannot sue in our courts and cannot continue a suit filed prior to death.” Judge Accurso quoted In re Admiral Sampson Bldg. & Loan Ass’n, 136 N.J. Eq. 292, 293 (Ch. 1945), as saying that “an earthly court has no jurisdiction over the dead. Only the living can litigate here.”

“Because plaintiff’s death prevented her from suing on her own behalf, the complaint filed in her name by her counsel was a nullity,” and Judge Accurso questioned whether counsel even had authority to file the suit, since an attorney-client relationship “ordinarily terminates on the client’s death.” Since the complaint was ineffective to “set judicial machinery in motion, there was nothing for the estate’s complaint to ‘relate back’ to.” Citing Eighth Circuit cases, Judge Accurso stated that “[t]he ‘relation-back’ rule cannot cure the failure to file a valid complaint in the first instance.”

This result, Judge Accurso said, was consistent with the Survivor’s Act. By virtue of that statute, “Repko’s estate had a viable claim against Lourdes at Repko’s death.” But any such claim was barred by the statute of limitations revealed by the timeline.

Governor Byrne used to joke that he wanted to be buried in Hudson County so he could remain active in politics. Whether or not a dead person can remain active in politics, today’s decision makes clear that a dead person cannot initiate a lawsuit.